NO. 80-437 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

JOSEPH GOOTT, 

Plaintiff and Respondent, 

VS. 

STATE OF MONTANA et al., 

Defendants and Appellants. 

Appeal from: District Court of the Second Judicial District, 

In and for the County of Silver Bow. 

Honorable James Freebourn, Judge presiding. 

Counsel of Record: 

For Appellants: 

Hon. Mike Greely, Attorney General, argued, and 

Allen Chronister, Assistant Pittorney 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 declaratory j udgment act ion in the 

Silver Bow County District Court to determine whether a gambling 

game marketed by Goott was law£ ul in Montana. The District Court 

held that the game known as "Poker All Keno" was law£ ul under 

the Montana Card Games Act, sections 23-5-301 et seq., MCA. 

On appeal the State asks this Court to determine whether 

the game "Poker All Keno" is lawful under either the Montana Card 

Games Act, supra, or the Bingo and Raffles Law, sections 23-5-401 

et seq., MCA. 

The game of "Poker All Keno" is played using equipment 

which is similar to that commonly 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 five balls 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 

guess which balls or combinations of balls will be chosen. The 

combinations which players can choose are based on the l'handsll 

commonly encountered in poker, and a1 ternatively the players may 

guess whether each "card" is high or low. The game can be played 

by marking cards or slips with guesses or by placing bets on 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 All Keno", did not want to assume the 

risk of 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 facts and each party submitted proposed findings and 
conclusions. The State s proposed find ings concluded that "Poker 

All Keno" was lawful under the Bingo and Raffles Law. Goottls 

proposed find ings, which were adopted by the District Court, 

concluded "Poker All Keno" was lawful under the Montana Card 

Games Act. Judgment was entered accordingly. 

On appeal, the State contends that "Poker All Keno" 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 his game is lawful under the Bingo and Raffles Act, 

and argues that the State should be barred from asserting the 

illegality of keno for the first time on 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 District Court 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 constitutionality of the Montana Card Games Act 

in Palmer 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 that only certain card games by which participants vie against one another, inter se, shall be 

authorized and that card games where eachplayer vies 

against the house are prohibited. The obvious 

legislative purpose is to ban casino-type gambling ." 

Palmer v. State, Mont. , 625 P.2d at 551, 

38 St.Rep. at 449. 

While "Poker All Keno" possesses some of the indicia of 

poker, the game is essentially a variation of keno. The technical description of the game confirms that participants do not 

compete against one another but rather each player competes 
against 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 

District Court erred in determining that "Poker All Keno" was 

legal under the Montana Card Games Act. 

We do not reach the issue of whether "Poker All Kenon 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 this Court for review. 

Additionally the State for the first time on appeal argues 

that keno is illegal. As the legality of keno was not an issue 

before the District Court in this case, we decline to rule on 

this question. 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 All Keno" is not lawful under the 

Montana Card Games Act, sections 23-5-301 et seq., MCA. 

Chief Justice 
Mr. Justice Frank B. Morrison, Jr., concurring: 

I concur in the holding that "Poker All Keno" 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. Justice John C. Sheehy concurring: 

I concur because Palmer v. State, supra, is stare decisis.