4 NICS App. 75, SPSITHA v. THOMAS (March 1996)

IN THE SHOALWATER BAY TRIBAL COURT OF APPEALS

    SHOALWATER BAY INDIAN TRIBE

    TOKELAND, WASHINGTON

    Southern Puget Sound Intertribal Housing Authority, Respondent/Plaintiff

v.

    Shane Thomas, Appellant/Respondent

    No. SHO-CIV-11/95-033 (March 7, 1996)

SUMMARY

Appeal of trial court judgment and order to vacate. Appellant raises issues for first time on appeal. As there are no reviewable issues before this Court, we affirm.

FULL TEXT

Before:            Elbridge Coochise, Chief Justice; Charles R. Hostnik, Justice; John L. Roe, Justice.

This matter came before the Shoalwater Bay Tribal Court of Appeals on March 7, 1996 pursuant to Appellant's Request for Review and Reconsideration of the Order Denying Appeal, dated February 5, 1996.

The Shoalwater Bay Tribal Court on December 13, 1995, found against Appellant Shane Thomas in this unlawful detainer action and entered a Judgment and Order to Vacate. On December 22, 1995 Mr. Thomas appealed the trial court decision.

On February 5, 1996 Chief Justice Coochise denied Mr. Thomas's appeal. Pursuant to Shoalwater Bay Appellate Code § 19.05.020, Mr. Thomas requested that the full three-judge panel reconsider the denial.

ISSUES ON APPEAL

Mr. Thomas alleges in his appeal that he was not informed of his right to have legal counsel or his right to call witnesses. Mr. Thomas also alleges that the presence of a law enforcement officer in the courtroom prevented him from presenting complete testimony.

JURISDICTION

Mr. Thomas is a member of the Shoalwater Bay Tribe. The action at issue occurred on the Shoalwater Bay Indian Reservation. This case was brought pursuant to the Shoalwater Bay Housing

4 NICS App. 75, SPSITHA v. THOMAS (March 1996) p. 76

Code. Section 5.1.010 of that Code provides:

The provisions of this code shall apply to all persons and property subject to the governing authority of the Shoalwater Bay Indian Tribe as established by the tribal Constitution and by the laws of the United States.

Therefore, this Court has personal, subject matter, and territorial jurisdiction over this action.

DISCUSSION

This Court reviews the February 5, 1996 denial of this appeal pursuant to Appellate Code § 19.05.020. That section provides for the full three judge appellate panel to reconsider the Chief Judge's decision to dismiss an appeal under § 19.05.01. Section 19.05.010 of the Appellate Code provides, in relevant part:

. . . The Chief Judge shall review the documents and shall accept the appeal on behalf of the Court of Appeals provided:

(a)       The notice of appeal was filed within the required time limit.

(b)       The notice of appeal substantially complies with the requirements of section 19.04.030.

(c)       The appeal appears, on its face, to comply with Section 19.03.010.

The Chief Judge shall notify the parties within 45 days whether the appeal is accepted or is dismissed for failure to meet the requirements of this section.

Appellate Code, § 19.05.010. Subsection (a) has been met. The appeal was filed timely.

Subsection (b) requires us to review § 19.04.030, which governs the content of the Notice of Appeal. That section provides:

A notice of appeal or notice for permission to appeal shall be entitled as such and shall:

(a)       Name the parties and their spokespersons, if any;

(b)       State the case number, date and nature of the decision appealed from;

(c)       Specify those parts of the decision which the party wants reviewed; and

(d)       List each error of law or procedure which the appellant claims was committed by the Shoalwater Bay Tribal Court and its effect on the outcome of the case.

Appellate Code, § 19.04.030. Subsections (a) and (b) have been met.

4 NICS App. 75, SPSITHA v. THOMAS (March 1996) p. 77

Subsection (c) requires the Appellant to specify those parts of the trial court decision which he wants this Court to review. The issues raised by the Appellant in his notice of appeal are issues which are raised for the first time on appeal. Therefore, they could not be part of the trial court decision. If these issues are not part of the decision, there are no parts to specify for review. Subsection (c) is not met.

Subsection (d) requires a similar analysis. If issues are not brought to the attention of the trial court, but are raised for the first time on appeal, then they cannot be an error of law or an error of procedure committed at the trial court level. Therefore, they cannot affect the outcome of the case. Subsection (d) is not met.

The third issue we must address under § 19.05.010 requires us to determine whether the appeal on its face complies with § 19.03.010. See Appellate Code, § 19.05.010(c). That section provides, in relevant part:

An aggrieved party who claims, in good faith, that the Shoalwater Bay Tribal Court made an error of law or procedure which affected the outcome of the case may seek review in the Court of Appeals of any final order, commitment, or judgment of the Shoalwater Bay Tribal Court. . . .

Appellate Code, § 19.03.010. Issues raised for the first time on appeal cannot affect the outcome of the case at the trial level. Therefore, this section cannot be, and has not been, met.

We are here to review the actions of the trial judge as reflected in the trial court record. The issues raised by the Appellant are being raised for the first time on appeal. These issues were not brought to the attention of the trial judge. Therefore, the trial judge did not have an opportunity to look at, or consider, those issues in deciding what relief was appropriate in this case.

Since the trial judge did not rule on these issues, we cannot review whether the trial judge acted appropriately. An appellate court can only review what the trial judge did. This is why it is important to bring to the trial judge's attention all issues that apply to the case.

ORDER

For the foregoing reasons, this panel affirms the actions of the Chief Justice in Dismissing this appeal for failure to meet the requirements of Shoalwater Bay Appellate Code, § 19.05.010.