Sanchez v. Arave , 120 Idaho 321 ( 1991 )

JOHNSON, Justice.

In this appeal, Larry Brad Sanchez challenges the constitutionality of I.C. § 12-122. This statute requires the award of attorney fees in any habeas corpus action brought by a state penitentiary or county jail inmate, if the action was brought frivolously by the petitioner. We dismiss the appeal, because the issue was raised for the first time on appeal to this Court.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Sanchez filed a petition for writ of habeas corpus against Arvon Arave, warden of the Idaho State Correctional Institution, and the Idaho Board of Correction (the Board). The petition challenged the quality of medical treatment Sanchez was receiving after having been committed to the custody of the Board pursuant to sentencing in a criminal case.

Following a hearing at which Sanchez was represented by a public defender and both Arave and the Board were represented by the office of the Idaho Attorney General, the magistrate judge found that Sanchez was receiving adequate medical attention and that the matter had been brought frivolously as defined in I.C. § 12-122. The magistrate judge dismissed the petition and awarded Arave costs and attorney fees. The deputy attorney general who had represented Arave and the Board at the hearing filed a memorandum of costs and fees referring to I.C. § 12-122 and I.R.C.P. 54(d)(5). The magistrate judge did not, however, enter an order specifying the amount of costs and attorney fees awarded. The record does not contain any indication that Sanchez challenged the constitutionality of I.C. § 12-122 in the proceedings before the magistrate judge.

Sanchez then appealed the matter to a district judge. The notice of appeal stated that the appeal was from an order of the magistrate judge dismissing the petition for writ of habeas corpus and “the findings that this matter was frivolously brought and the awarding of attorney’s fees and costs.” During the appeal to the district judge, Sanchez was assisted by an inmate legal assistant.

Sanchez’s brief on appeal to the district judge did not present the issue of the constitutionality of I.C. § 12-122, nor did the district judge address this issue in deciding the appeal. The district judge rejected the issues raised by Sanchez on appeal, but remanded the proceeding to the magistrate judge for the purpose of fixing the costs and fees. Sanchez then appealed to this Court.

Sanchez lists the following as the sole issue in this appeal:

Is I.C. § 12-122 a constitutional statute as applied in appellant’s case?

II.

THE CONSTITUTIONALITY OF THE STATUTE WILL NOT BE CONSIDERED FOR THE FIRST TIME ON APPEAL.

Sanchez did not challenge the constitutionality of I.C. § 12-122 until the appeal to this Court. Under these circumstances, we will not consider the issue.

The longstanding rule of this Court is that we will not consider issues that are presented for the first time on appeal. E.g., Kinsela v. State, Dep’t of Finance, 117 Idaho 632, 634, 790 P.2d 1388, 1390 (1990). Recently we applied the rule to dismiss the appeal in a case where the state asked us to rule on an issue that was not raised in the trial court. State v. Martin, 119 Idaho 577, 808 P.2d 1322 (1991).

The rationale for this rule was first stated by the Supreme Court of the Territory of Idaho in 1867:

It is for the protection of inferior courts. It is manifestly unfair for a party to go into court and slumber, as it were, on [a] defense, take no exception to the ruling, present no point for the attention of the court, and seek to present [the] defense, that was never mooted before, to the judgment of the appellate court. Such a practice would destroy the purpose of an appeal and make the supreme court one for deciding questions of law in the first instance.

Smith v. Sterling, 1 Idaho 128, 131 (1867).

In Johnson v. Diefendorf 56 Idaho 620, 633, 57 P.2d 1068, 1073 (1936), the Court refused to discuss or decide the validity of a statute on grounds that were not pleaded or submitted to the trial court. In Oregon Shortline R.R. v. City of Chubbuck, 93 Idaho 815, 817, 474 P.2d 244, 246 (1970), the Court declined to decide whether a statute was unconstitutional when the issues had not been raised by the pleadings nor argued or decided in the trial court.

In Messmer v. Ker, 96 Idaho 75, 78, 524 P.2d 536, 539 (1974), the Court affirmed the granting of a new trial and then considered the constitutionality of a statute even though the issue had been raised for the first time on appeal. In doing so, the Court noted: “Constitutional issues may be considered for the first time on appeal if such consideration is necessary for subsequent proceedings in the case. I.C. § 1-205.” Id. I.C. § 1-205 provides for the manner of disposition of appeals by this Court. It states that “if a new trial be granted, the court shall pass upon and determine all the questions of law involved in. the case presented upon such appeal, and necessary to the final determination of the case.” I.C. § 1-205.

Although the district judge in this case remanded the proceeding to the magistrate judge for the purpose of fixing the costs and attorney fees, no new trial or hearing has been ordered. Therefore, I.C. § 1-205 and Messmer are not applicable.

III.

CONCLUSION.

We dismiss the appeal and remand the case to the magistrate judge for the purpose of fixing the costs and attorney fees, as ordered by the district judge.

We award the respondent costs on appeal. No attorney fees were requested on appeal.

BAKES, C.J., and BOYLE and McDEVITT, JJ., concur.