No. 5 2 - 4 6 1
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
GALLATIN COUIJTY,
Plaintiff and Appellant,
-vs-
D & R MUSIC & VENDING, INC.,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The IIonorable H. William Coder, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
A. Michael Salvagni, County Attorney, Bozeman, Montana
Marc Racicot, Helena, Montana
Pablo Perhacs, Special Dep. Gallatin County Atty.,
Billings, Montana (Argued)
Robert Deschamps, co-special Dep. County Atty for
Gallatin County, Missoula, Montana (Argued)
For Respondent r
Harrison, Loendorf & Poston; John P. Poston (Argued),
Helena, Montana
Wellcome & Frost; Page Wellcome, Bozeman, Montana
For Amicus Curiae:
Loble & Pauly; Lester Loble, For United Methodist
Church, Helena, Montana
- -
Submitted: October 28, 1983
Decided: February 3 , 1984
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
The question in this case is whether an electronic
poker machine called Draw-80 Poker is legal in Montana. The
District Court held it was. We reverse.
This matter arose with the Gallatin County attorney
requesting a declaratory judgment that electronic poker
machines be declared slot machines and therefore illegal.
Contemporaneously, a mandamus action was pending in the same
court requesting Gallatin County be required to license keno
machines. The mandamus action was brought by respondent
D & R Music and Vend.ing, Inc. (hereinafter "D & R"). D & R
then moved and was allowed to enter the declaratory judgment
sui.t as a defendant. The declaratory judgment suit was then
consolidated with the pending mandamus action under Rule
20 (a), M. R.Civ.P. The matter was then bifurcated .into two
causes, one of which, involving the legality of keno ma-
chines, has been decided by this Court in Gallatin County v.
D & R Music & Vending (Mont. 1982), 654 P.2d 998, 39 St.Rep.
2197. The second part of the matter is this case which
involves the legality of electronic poker machines. On
September 24, 1982, the Gallatin County District Court en-
tered judgment holding electronic poker machines legal and
a-uthorizedby the Montana Card Games Act. We reverse.
Three issues are presented by the parties for our
review:
1. Whether the game played on the electronic poker
machines is the game of poker as described and authorized by
the Montana Card Games Act.
2. Whether the el-ectronic poker machines are slot
machines as defined in section 23-5-101, MCA.
... I I..
3. Whether the Montana Card Games Act authorizes the
playing of poker in which the house competes a.gainst a single
pl-ayer .
I
The first issue is whether the game played on electron-
ic poker machines is the game of poker as described and
authorized by the Montana Card Games Act. The machines at
issue consist of a computer, a video screen, accompanying
electronics, and a receptacle for holding coins. Fifty-two
characters can be displayed on the screen simulating a deck
of cards. The characters appear on the screen through a
random generating pattern.
The machines are activated by placing a quarter or
numerous quarters in the coin slot and the player receives
one credit for each quarter deposited. After deciding the
number of credits to bet, the player presses a button which
causes the images of five playing cards to appear on the
screen. The machine then determines whether the images
appearing on the screen represent a winning combination. The
player then has the option to change the images by pressing
other buttons to erase certain images and to cause new
randomly-selected images to appear. Again, the machine
determines which groups of images represent winning combina-
tions. Winning credits are displayed on the screen and
payoffs are made in cash by the player redeeming his credits
from the proprietor.
The machine is programmed to retain a certain percent-
age of all money deposited. This retention percentage is
primarily determined by the number of winning combinations
programmed into the machine. The retention percentage in
Montana is between 22 and 25 percent.
The Montana Card Games Act of 1974 provides:
"(2) The card games authorized by this
pa.rt are and are limited to the card
games known as bridge, cribbage, hearts,
panquingue, pinochle, pitch, rummy,
whist, solo, and poker." Section
23-5-311 ( 2 ) , MCA.
While the term "poker" is not precisely defined by
statute, the word "is of ancient and common understanding."
Palmer v. State (Mont. 1981), 625 P.2d 550, 552, 38 St.Rep.
447, 450. It is a game played by individuals with one player
pitting his skills and against those other
players. No variation of poker involves only one player. It
is a ga-me played with playing cards, not with electronic
images d.isplayed on a screen. Poker is a game of skill and
chance. It is not a ga.me programmed so that no one wins a
certain percentage of the time.
After reviewing the file, the evidence and the documen-
tation provided by acknowledged experts in the field, we
conclude that the electronic game played on these machines is
not poker. Accordingly, it is not authorized by the Montana
Card Games Act and is consequently illegal thereunder.
11
The second issue is whether the electronic poker ma-
chines are slot machines under section 23-5-101, MCA.
The statute defines a slot machine as ". . . a machine
operated by inserting a coin, token, chip, trade check, or
paper currency therein by the player and from the play of
~ ~ h i che obtains or may obtain money, checks, chips, tokens,
h
or paper currency redeemable in money . . ." Sectj-on
23-5-101(1), MCA. We find. no discrepancy between this statu-
tory definition and the operation of the ga-mbling machines.
The player activates the machine by inserting a single qua-r-
ter or numerous quarters. If he wins, he is awarded credits
which are redeemable by the proprietor in cash. The statuto-
ry definition is clear and unambiguous. The operating proce-
dures of the machine are also clear and unsophisticated, and
we find it impossible to distinguish between a slot machine
as defined by statute and an electronic "poker" machine.
When the language of the statute is clear and unambigu-
ous, no par01 evidence is permissible. Under the same cir-
cumstances, no other rules of statutory construction come
into play. The statutory language here is perfectly clear
and therefore need only be applied--not interpreted. Under
the language of section 23-5-101, MCA, the electronic "poker"
machine is clearly a slot machine and as such expressly
barred by the legislature from operation within this state.
111
The third issue is whether the Montana Card Games Act
authorizes the playing of poker in which the house competes
aqainst a single player.
". . . The Act expresses the legislative intention that
only certa.in card games by which participants vie against one
another, inter - shall be authorized and that card games
se,
where ea.ch player vies against the house are prohibited. The
obvious legislative purpose is to ban casino-type gambling."
Palmer, 625 P.2d at 551-552, 38 St.Rep. at 449.
In the case at bar, the machine represents the house.
In addition, considering the programmed retainage, the house
and the player do not vie equally against each other. The
-
p l a y e r must l o s e a c e r t a i n p e r c e n t of t h e t i m e . The l e g i s l a -
t u r e c l e a r l y i n t e n d e d t o b a r games i n which 2 player vies
a g a i n s t t h e house. I t must be h e l d t h a t the legislature
would even more vehemently p r o h i b i t a game where t h e house
and t h e pla.yer do n o t have an even chance a t s u c c e s s . We
t h e r e f o r e h o l d t h a t t h e s e games where one p l a y e r v i e s a g a i n s t
the house are barred by the legislature and therefore
illegal.
I n summary w e h o l d :
(1) The e l e c t r o n i c gambling machine known a s Draw-80
Poker d o e s n o t q u a l i f y a s a game of poker and i s t h e r e f o r e
n o t a u t h o r i z e d und.er t h e Manta-na Card Games A c t ;
( 2 ) The e l e c t r o n i c poker machines a r e s l o t machines a s
d e f i n e d by s e c t i o n 23-5-101, MCA; a n d ,
( 3 ) The Monta.na Card Games Act d o e s n o t a u t h o r i z e t h e
playing of "poker" w h e r e i n a s i n g l e p l a y e r competes a g a i n s t
t h e house.
W reverse.
e Judgment i s e n t e r e d i n accordance w i t h
t h i s opinion.
s - ChiefA ,
k d ~ ~ u ~ 0 g 3
JustWice
Mr. Justice Fra.nk B. Morrison, Jr. respectfully dissents as
follows.
I respectfully dissent from the majority opinion.
The majority first addresses the issue of whether the
game played on a poker machine is "poker" as tha-t term is
generally known. We all agree that the Montana Card Games
Act of 1972 does not define poker but permits the playing of
poker.
The majority seems to rely upon two factors in
determining that poker machines do not represent the game of
poker contemplated by the statute. First of all, the
majority notes that the machine does not utilize playing
cards but rather electronic images. This distinction is made
without reference to this Court's decision in Treasure State
Games, Inc. vs. State (1976), 170 Mont. 189. In that case we
held Keno machines to be a legal form of bingo. A fair
reading of that decision would indicate approval of machines
which el~ectronically simulate otherwise lawful games.
Therefore, if, in playing a poker machine, one is playing a
game that would otherwise be poker, if played against another
person or against the house, then the game should be legal.
Secondly, the majority deems the game not to be poker
when played upon a machine for the reason that skill is not
required. No legal authority is cited for this assertion.
In fact, there is evidence in the record that "showdown"
poker is recognized. Obviously "showdown" does not require
skill.
There is testimony in this record to show that the game
played on the poker machine is, in fact, a game involving
skill. The evidence offered by the defendant shows that the
chances of winning with skillful play are 3 to 1 better than
the chances of random play.
The majority opinion conveniently avoids referring to
the trial court's findings of fact. Finding number 3 (h)
provides :
"Whether the player wins or loses depends not only
on the "luck of the draw" as determined by the odds
previously discussed herein, but also on the
knowledge of those odds by the player, and his
skill in applying those odds to the particular hand
with which he is confronted;"
This finding binds our Court, unless clearly erroneous.
The majority fails to address the finding and fails to
support its bald conclusion that the game is different from
poker in that it does not involve skill.
The trial court further found in Finding 3 (i) that:
"Save and except for the electronic aspects of the
game herein before described, the game of polter as
played on this machine is essentially the game of
poker as that term is anciently a.nd commonly
v.
understood (Palmer - State, 38 St.Rptr. 447, 450
(March, 1982)) ;. . .."
Again the majority fails to address the finding. If the
finding is supported by the record, and it clearly is, then
poker Machines are lawful under the authority of Treasure
State Games vs. State, supra.
I will not address the issue of whether poker machines
are slot machines. Clearly if they are lawful under the
Montana Card Games Act, then they are not unlawful slot
machines. Since I would find they are lawful under the
Montana Card Games Act, the issue of slot machines is clearly
resolved in favor of the defendant.
The majority gratuitously determines that poker cannot
be played against the house. The majority need not have
reached this issue since they found that, in any event, the
game being played in a poker machine was not poker at all.
However, since the majority has seen fit to give an advisory
opinion on this issue, I feel compelled to answer.
There is absolutely nothing in the Montana Card Game Act
which prohibits playing against the house. The majority
apparently reasons that since the machine keeps twenty
percent a player must lose a certain percent of the time.
The Legislature clearly intended to bar games where such a
result follows. However, it seems to me that the money kept
by the machine is simply a "rake-off" which is specifically
authorized by section 23-5-313.
I can only conclude that the majority opinion fails to
analyze the trial court's findings, the evidence which
supports those findings, and the applicable statutes for the
reason that the majority opinion would thereby fail. What we
have here is judicial legislation which seems to have done
the following:
1. Banned all card games that do not require skill.
This would include "showdown" or "fun poker".
2. Banned all card games played against the house.
3. Prohibited the house from taking a percentage of the
pot as a "rakeoff" although such is specifically provided for
by statute.
By holding that poker machines are actually illegal slot
machines, the court allows for confiscation of the machines.
This seems to be a particularly harsh result in light of the
fact that poker machines were purchased at a cost of several
thousand dollars each based upon this Court's opinion in
Treasure State Games, Inc. vs. State, supra, and the Attorney
General's opinion which followed. On August 15, 1979 Mike
Greely, Attorney General of Montana, issued an opinion which
stated:
"You recently requested my opinion on the legality
of an electronic gambling device that simula-tes the
game of poker. Enclosed are copies of two letters
to the Lewis and Clark County Attorney which set
out my views on these machines. While I agree that
these machines are very close to being slot
machines and that their proliferation may not be in
the public interest, we are bound by the Supreme
Court's controlling decision in the Treasure State
Games case, which is discussed in the letters.
Until either the Legislature or the Court sees fit
to change the law, electronic poker machines appear
to be legal. "
If the Court wishes to overrule the Treasure State Games
case, then it should do so specifically. Of course the
majority never menti.ons the case. If the Court wishes to
change the law by judicial fiat then the Court should only do
so prospectively. Poker machines were purchased in good
faith reliance upon the Attorney General's opinion and upon
previous decisions of this Court. To declare these machines
now to be slot machines and allow their confiscation seems to
me to be taking property without due process of law.
I would hope the County Attorneys would at least permit
owners of poker machines to have some time in which to
dispose of them since they were legal at the time they were
purchased.
Mr. Justice John C. Sheehy, dissenting:
Draw-80 Poker machines, say the majority, are full of evil
designs
As if they had never thrilled to four aces, or even kings
full of nines.
The county attorneys oppose the machines although twenty-six
of them have licensed such machines coyly.
Now they contend Draw-80 isn't poker because it isn't listed
in Hoyle.
Well, I have looked at Hoyle, a-nd to tell you no lies
There are as many kinds of poker as it has entered into the
heart of man to devise.
Hoyle lists Stud Poker, Draw Poker, Hold-Em, Low Ball,
Cincinnati and a lot more, but my, oh my oh,
Among those not listed in Hoyle, to name a few, are Kings
Wild Low Ball With Two Jerks, Duffner, Deuces Are Wild
in The Presence of Clubs, Sullivan, Payday At Ke1l.y Shaft,
O'Donnell and Steubensville, Ohio.
Lest your senses go batty,
The game of Steubensville is so-called because it is close
to Cincinnati.
One thing above all the majority should have kept in mind:
Poker is any game where two pairs beat a pair, three of a
kind beat two pairs, a straight beats three of a kind,
a flush beats a straight, a full house beats a flush,
' four of a kind beat a full house, and a straight flush
heats four of a kind.
Any game that has winning hands in that progression is poker
With or without a joker
And no judicial opinion, no matter how weighty,
Can ma.ke anything but poker out of Draw-80.
Draw-80 may seem sinister
To one's minister,
But putting fences around what poker means is as preposterous
As arguing how many angels can stand on the point of a
rhinoceros.
But oh, say the majority, it takes two to play poker, just
like it takes two to tango,
Forgetting that when poker players want to play poker, they
are not interested in the fandango.
Draw-80 Poker can be described in terms the simplest:
It is one-draw poker with five possible discards and no joker,
and the house has two kings to beat, as any poker player
could tell you from senior citizens to the pimplest.
The majority read into the statute that poker is not poker
unless one is taking cards from a human dealer
Which would be all right if the dealer ain't a peeler.
Many a poker player on an ego trip
Has dropped a bundle to a d.ealer with a mechanic's grip.
It makes a real poker player panic
To see a pack of bicycles in the grip of a mechanic.
But this Court has been so busy expanding the law of torts
and interpreting wills
It forgot about shills.
So now, instead of a tamper-proof device to play with,
Montanans must seek out human dealers to gamble their pay with.
Finally, if there is anything that a Draw-Poker machine
can be thought to mean
It is not a slot machine.
A chimp can be taught to play mindlessly on a one-armed bandit
But most humans wont learn not to discard. aces or not to draw
to an inside straight, if we are the least bit candit.
The Draw-80 machine owners should not have lost this case
but they did.
They came to this Court with this case holding
aces and eights, and you know what that hand did to Billy
The Kid.
In the shortest of synopses
They lost to the blue probosces,
Now while the Order of the Blue Nose relaxes,
Cities and counties can go about replacing lost revenues by
raising other taxes.
Poker players of Montana, unite!
Come out of the closet, or at least turn on the closet light.
Mr. Justice Daniel J. Shea separately concurring and
dissenting:
I join the majority in its holding that electro~icpoker
machines are not authorized by the Montana Card Games Act and
that the house cannot compete against a single player. 1 am
convinced that the system of "programmed retainage" built
into the machines to assure the profits of the house, d-oes
not fall within any authorized games of poker. It is not
simply a situation where the house takes a rake from each
game, but rather, a situation in which a player must lose a
certain percentage of the time to assure the house its
profits. That is not poker.
I do not., however, agree with the majority holding that
the machines are actually slot machines, and therefore
illegal per se. A sufficient factual basis does not exist in
the record to make that determination.
I further share in the concerns of Justice Morrison in
his dissent that the games should not be confiscated and that
the owners should be given a reasonable time within which to
dispose of them. The owners should not be penalized beca.use
of the inconsistent policy of the county attorneys in
enforcing the gambling laws.