§ Rule 74 Mandate and prohibition

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Rule 74. Mandate and prohibition

    (a) Mandate and Prohibition. The procedure for obtaining a writ of prohibition or a writ of mandate shall be in accordance with these civil rules. An application for a peremptory or alternative writ of mandate or prohibition shall be commenced by filing of a petition or complaint with a court of competent jurisdiction.

    (b) Application for Writ. When any complaint or petition for a peremptory writ of mandate or prohibition prays that an alternative writ first be issued, the court in its discretion may issue such alternative writ based upon a verified complaint or affidavit showing grounds therefor. Such alternative writ shall command the party to do or refrain from doing the act sought to be required by a writ of mandamus or sought to be prohibited by writ of prohibition, or to show cause before the court at a specified time and place why the party has not elected to comply with the alternative writ. Copies of the summons, petition, any affidavits, and the alternative writ must be served upon the defendant at least 10 days prior to the date of the hearing. No contested trial of a petition or a complaint for writ of prohibition or mandamus shall be had on the merits at a show cause hearing pursuant to an alternative writ, and no peremptory writ shall issue as a result of such contested hearing. If the party on whom the alternative writ was served appears at the time specified to show cause, the court shall at such hearing determine and set a time for the trial of the action on its merits for a determination of whether a peremptory writ shall issue in the action, and the court may hear limited testimony, in its discretion, as to whether the alternative writ should remain in force and effect so as to require the party to perform an act or to refrain from performing an act pending final hearing on the merits.

    (c) Opposing Writ. Any party wishing to contest an application for a peremptory writ of mandate or writ of prohibition must file a responsive pleading to the complaint or petition in the same manner as an answer to any other complaint in a civil action. The plaintiff or petitioner may proceed against such responsive pleading in the same manner as in any other civil action.

    (d) Trial--Judgment. Upon trial of the complaint or petition for writ of mandamus or writ of prohibition, the plaintiff or petitioner shall have the burden of proof in the proceedings as in other civil actions and upon conclusion of the trial the court shall enter its decision and judgment granting or denying a peremptory writ together with a determination of damages, if applicable. If an answer be made which raises a question as to a matter of fact essential to the determination of the motion and affecting the substantial rights of the parties, and upon the supposed truth of the allegation on which the application for the writ is based, the court may, in its discretion, order the question to be tried before a jury and postpone the final hearing until such trial can be had and the verdict certified to the court. The question to be tried must be distinctly stated in the order for trial, and the county must be designated in  which the same shall be had. The order may also direct the jury to assess any damages which the plaintiff may have sustained in case they find for the plaintiff. Upon entry of the judgment, if the writ is awarded it shall be issued immediately upon application of the plaintiff or petitioner as a peremptory writ ordering the party to whom it is directed to perform an act or refrain from performing an act and shall have the force and effect of a judgment. A writ issued by the court shall be served upon the party to whom it is directed in the same manner as service of process under these rules.

    The rule headings for Idaho Rules of Civil Procedure have been editorially supplied.