holding that video lottery is not authorized under S.D. Const. art. III, § 25, which makes it lawful for the legislature to authorize a "state lottery which is regulated, controlled, owned and operated by the State. . . .
How later courts described this case
- holding that video lottery is not authorized under S.D. Const. art. III, § 25, which makes it lawful for the legislature to authorize a "state lottery which is regulated, controlled, owned and operated by the State. . . .
- stating that it is a function of the judiciary, not the legislature, to define the scope of constitutional provisions
- reviewing both the history of lotteries and the predominant state-run lotteries in the midwest, and concluding that the term lottery does not include video games of chance
- game of chance is one in which success or failure depend less on skill and experience than on purely fortuitous circumstances incidental to game, manner of playing it, or device or apparatus with which it is played; test is whether chance is determining element in outcome of game
Written by the judges who cited it.
The opinion
AMUNDSON, Justice
(dissenting).
As is evident, this appeal springs from the trial court’s grant of summary judgment. The seminal case on appellate review of summary judgment decisions is Wilson v. Great Northern Ry. Co., 83 S.D. 207, 211 , 157 N.W.2d 19, 21 (1968), wherein this court stated:
Summary judgment is a comparatively new procedure in this state and became a part of our practice when we adopted the federal rules of civil procedure with a few minor variations. Consequently we turn to the federal court decisions for guidance in their application and interpretation. In an opinion rendered shortly after the adoption of the federal rules, the late Judge Gardner wrote: ‘The question presented by such a motion is whether or not there is a genuine issue of fact. It does not contemplate that the court shall decide such issue of fact, but shall determine only whether one exists.’ (Emphasis added.)
There is a legion of cases in which this court followed the Wilson precedent by reversing summary judgment when a genuine issue of fact was found to exist. See Davis v. Friz-zell, 504 N.W.2d 330 (S.D.1993); Easson v. Wagner, 501 N.W.2d 348 (S.D.1993); Lamp v. First Nat. Bank of Garretson, 496 N.W.2d 581 (S.D.1993); Dur-Al Mfg., a Div. of SOS Consol. Inc. v. Sioux Falls Const., 487 N.W.2d 29 (S.D.1992); Peterson v. Sioux Valley Hosp. Ass’n, 486 N.W.2d 516 (S.D. 1992); Weiszhaar Farms, Inc. v. Live Stock State Bank, 467 N.W.2d 752 (S.D.1991); First Western Bank v. Livestock Yards Co., 444 N.W.2d 387 (S.D.1989); Drier v. Great Am. Ins. Co., 409 N.W.2d 357 (S.D.1987); Zens v. Chicago, Milwaukee, St. Paul & Pac. RR, 386 N.W.2d 475 (S.D.1986); Salem Sch. Disk JpS-3 v. Puetz Constr., 353 N.W.2d 51 (S.D.1984); Bourk v. Iseman Mobile Homes, 316 N.W.2d 343 (S.D.1982); Carsten v. Aetna Life Ins. Co., 247 N.W.2d 679 (S.D.1976); Brasel v. Myers, 89 S.D. 114 , 229 N.W.2d 569 (1975).
As House Joint Resolution No. 1001 made its journey through the legislative process, an amendment was proposed to change the resolution as follows:
However, it shall be lawful for the legislature to authorize by law a state lottery or video poker which is regulated, controlled, owned and operated by the State of South Dakota, either separately by this state or jointly or in cooperation with one or more other states. The entire net proceeds of such lottery or video poker shall be devoted to the operation of state government or such other purpose as the legislature shall determine. (Emphasis added.)
This proposed amendment was an attempt to incorporate video poker into the constitutional amendment. This proposal was defeated, so video poker was not part of the amendment voted upon by the electorate. If, as the majority states, there is no difference between “video poker” and “video lottery,” the balance of the majority opinion’s discussion is not required. Why? Because the legislature said no to video poker in 1986 and, if in fact the two are the same as believed by the majority, the constitutional amendment did not authorize video lottery.
The point here is that there is an obvious question of fact; namely, whether video poker, which was to be owned, controlled and operated by the state, and video lottery, which came into existence in 1989, are one and the same? Although the legislative history was contained in the record below, it has not been argued that rejection of this “video poker” amendment limited the legislature’s authority and that the 1989 Legislature exceeded its authority when it enacted the video lottery legislation. If it walks like a duck, *252 quacks like a duck and looks like a duck, it must be a duck; notwithstanding whatever moniker is hung on it by a subsequent legislature.
If a case can be decided on the merits, this court has consistently deferred from deciding a constitutional issue. Sheehan v. United Pacific Ins. Co., 439 N.W.2d 117 (S.D.1989); Baldwin v. First Nat. Bank of the Black Hills, 362 N.W.2d 85 (S.D.1985); House of Seagram, Inc. v. Assam Drug Co., 83 S.D. 320 , 159 N.W.2d 210 (1968). The constitutional issue need only be decided if the trial court’s factual determination would be that video poker and video lottery are not the same thing.
In conclusion, I would remand this matter to the trial court so the genuine issue of material fact which exists in this case can be ruled upon.