NO. 80-437 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

JOSEPH GOOTT, Plaintiff and Respondent,

VS. STATE OF MONTANA etal., Defendants and Appellants.

Appeal from: DistrictCourt of the Second Judicial District, In and for theCounty of SilverBow. Honorable James Freebourn, Judge presiding. Counsel of Record: For Appellants: Hon. Mike Greely, Attorney General, argued, and

Allen Chronister, AssistantPittorney General, argued, Helena, Montana John Winston, County Attorney, Butte, Montana For Respondent: J. Mayo Ashley argued, Helena, Montana For Amicus Curiae: Marc F. Racicot, County Prosecutor Services Bureau,

Helena, Montana Dowling Law Firm, Helena, Montana John P. Poston, Helena, Montana

Submitted: June 8, 1981 Decided: 

## 2

# -I@@Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Joseph Goott brought a declaratoryjudgment action in the SilverBow County District Court 

### to determine whether a gambling game marketed by Goott 

### was law£ul inMontana. The District Court held that the game known as "Poker All Keno" 

### was law£ulunder the Montana Card Games Act, sections 23-5-301 etseq., MCA. On appeal the Stateasks thisCourt 

### to determine whether the game "Poker AllKeno" 

### is lawful under eitherthe Montana Card Games Act, supra, 

### or the Bingo and Raffles Law, sections 23-5-401 et seq., MCA. The game of "Poker AllKeno" is played using equipment which is 

### similar 

### to thatcommonly used 

### to play keno. A transparent receptacle holds 52 balls, each bearing the representation of a card in a conventional deck of playing cards. Air pressure is used 

### to mix these balls, and fiveballs 

### are then blown at random into a transparent tube. The balls 

### so chosen 

### are displayed to the players on a lighted wall screen. Prior 

### to the commencement of shuffling and selection, the players attempt 

### to guesswhich balls

### or combinations of ballswillbe chosen. The combinations which players can choose 

### are based on the l'handsll commonly encountered inpoker, and a1ternatively the players may guesswhether each "card" is high 

### or low. The game can be played bymarking cards

### or slipswith guesses 

### or by placing betson a game table. The odds on guessing successfully

### are given to the players on the game board and on the slips, and the "house" makes payoffs 

### to the players accordingly. Goott, as the owner of the patent and copyright for the trademarked game of "Poker AllKeno", did not want to assume the riskof prosecution should the game be illegal in Montana. Therefore, he filed a complaint praying for a declaration that the game 

### was legal under the Bingo and Raffles Law, sections 23-5-401 et seq., MCA. The parties submitted an agreed statement of factsand each party submitted proposed findings andconclusions. The States proposed findings concluded that "Poker AllKeno" 

### was lawful under the Bingo and Raffles Law. 

### Goottls proposed findings, which 

### were adopted by the District Court, concluded "Poker AllKeno" 

### was lawful under the Montana Card Games Act. Judgment 

### was entered accordingly. On appeal, the Statecontends that "Poker AllKeno" 

### is governed by the Bingo and Raffles Law and not by the Montana Card Games Act, and further argues that the game is illegal. Goott

now contends hisgame 

### is lawful under the Bingo and Raffles Act, and argues that the State should be barred from asserting the illegalityof keno for the first

### timeon appeal. As 

### amici curiae, the Hofbrau and the Montana Coin Machine Operators Association agree with Goott

## ,and the Montana County Attorneys Association argues for a review limited 

### to the issue determined by the DistrictCourt judgment. The Montana Constitution, Article 111, Section 9, provides that all forms of gambling 

### are prohibited unless authorized by the legislature

### or by the people through initiative

### or referendum. In 1974 the legislature passed the Montana Card Games Act, sections 23-5-301 et seq., MCA, legalizing certain specified card games including poker. We recently rejected a challenge 

### to the constitutionalityof the Montana Card Games Act inPalmer v. State of Montana (1981), Mont

# . , 625 P.2d 550, 38 St.Rep. 447, wherein 

### we noted: "The [Card Games] Act expresses the legislative intention thatonly certain card games by which participantsvie against one another, inter

### se, shall be authorized and that card games where eachplayer vies against the house are prohibited. The obvious legislativepurpose is toban casino-type gambling

# ." Palmer v. State, Mont. 

## ,625 P.2d at551, 38 St.Rep. at 449. While "Poker AllKeno" possesses some of the indicia of poker, the game is essentiallya variation of keno. The technical description of the game confirms thatparticipants do not compete against one anotherbut rather each player 

### competesagainst the house, the operator of the game. It is therefore a casino-type 

### or banking game which the legislature did not intend 

### to authorize by the Montana Card Games Act. Palmer, supra. The DistrictCourt erred indetermining that "Poker AllKeno" 

### was legal under the Montana Card Games Act. Wedo not reach the issue 

### of whether "Poker AllKenon 

### is legal under the Bingo and Raffles Law, sections 23-5-401 et seq., MCA. The District Court in adopting the respondent's proposed findings and conclusions did not rule on the legality of the game under the Bingo and Raffles Law. Consequently, that issue is not before thisCourt for review. Additionally the State for the firsttimeon appeal argues thatkeno is illegal. As the legalityof keno was not an issue before the District Court in this

### case, we decline 

### to rule on thisquestion. Northern Plains Resource Council v. Board of Natural Resources (1979), Mont

# . ,594 P.2d 297, 36 St.Rep. 666. The judgment of the District Court 

### is reversed. Judgment is entered holding that "Poker AllKeno" 

### is not lawful under the Montana Card Games Act, sections 23-5-301 et seq., MCA.

Chief JusticeMr. JusticeFrank B. Morrison, Jr., concurring:

I concur in the holding that "Poker AllKeno" is not governed by the Card Games Act, section 23-5-301, et seq., MCA. However, I would hold that the game 

### is lawful under the Bingo and Raffles Act, sections 23-5-401, et seq., MCA

Mr. JusticeJohn C. Sheehy concurring:

I concurbecause Palmer v. State, supra, 

### is staredecisis.