Idaho injunctions: a writ that puts you back in a property taken at night

Idaho's Rule 65 carries a remedy most states leave to statute: an injunction that functions as a writ of restitution, putting someone back into real property. The circumstances it names are unusually specific, and they are worth knowing because they describe how possession is actually lost.

The restitution writ

Rule 65(f):

The district courts may issue a writ of injunction for affirmative relief having the force and effect of a writ of restitution, restoring any person to the possession of any real property from which the person was removed by force, violence, fraud, or stealth, or from which the person is kept out of possession by threats if possession was taken on Sunday, a legal holiday, or in the nighttime, or while the party in possession was temporarily absent.

Read the two halves separately.

Removal by force, violence, fraud or stealth is the first route — a lockout, a deception, a quiet entry.

Being kept out by threats is the second, and it carries its own qualifying circumstances: possession taken on a Sunday, on a legal holiday, in the nighttime, or while the party in possession was temporarily absent. Those four are the classic opportunities for a self-help eviction, and the rule names them.

The relief is bounded, and the limit matters: "The granting of the writ extends only to the right of possession under the facts of the case, in respect to the manner in which the possession was obtained." The writ decides how possession was taken, not who ultimately owns or is entitled to the property. Title fights are for the main case.

Seven days' notice

The restitution writ is not an ex parte remedy:

This writ may only be issued on 7 days' notice in writing to the adverse party of the time and place of hearing on the application for writ.

Seven days, in writing, specifying time and place. So the sequence for a lockout is: serve the notice, attend the hearing, obtain the writ — not an emergency application at the courthouse door.

When a preliminary injunction may be granted

Rule 65(e) sets out the grounds in an enumerated list, beginning: "A preliminary injunction may be granted in the following cases: (1) when it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the acts complained of, either for a limited period or perpetually…"

Idaho's approach here is older than the federal balancing formula — a list of qualifying situations rather than a four-factor test. Plead into the listed category that fits rather than reciting the federal factors.

Security, and who is exempt

Security is required before an injunction issues, in the amount the court sets, and the exemption is broad:

The State of Idaho or any political subdivision, its officers, and its agencies are not required to give security.

Political subdivisions as well as the State, which is wider than several neighboring states allow.

Employer-and-employee cases are carved out

Rule 65(g):

These rules do not modify any statute of the state of Idaho relating to restraining orders or injunctions in actions affecting employer and employee.

So in a labor dispute the statutory scheme governs, and Rule 65 does not displace it. Check the statute before assuming the ordinary procedure applies.

What the order itself must say

Rule 65(d)(1) imposes the same three requirements Arizona does:

Every order granting an injunction and every restraining order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail, and not by referring to the complaint or other document, the act or acts restrained or required.

Note "restrained or required" — Idaho's form provision contemplates mandatory relief as readily as prohibitory, which matters given the restitution writ above.

Rule 65(d)(2) then limits who is caught: the order "binds only the following who receive actual notice of it by personal service or otherwise," beginning with the parties. Actual notice is the trigger, and it need not be formal.

Evidence from the hearing carries into the trial

Rule 65(a)(2):

Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial. But the court must preserve any party's right to a jury trial.

So a preliminary injunction hearing is not a rehearsal. Admissible evidence taken there becomes part of the trial record without being offered again, which cuts both ways: a strong witness is banked, and a witness who does poorly has done poorly on the record that will decide the case.

The closing sentence is the limit — the court "must preserve any party's right to a jury trial." Advancing and consolidating the trial with the hearing cannot be used to move a jury case in front of a judge alone.

Press the motion, or the order is dissolved

A TRO issued without notice carries a duty to follow through:

If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order.

"Must dissolve." A party that obtains emergency relief and then goes quiet loses it — the rule does not leave that to the court's discretion.

The restrained party has a faster route than waiting:

On 2 days' notice to the party who obtained the order without notice, or on shorter notice set by the court, the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.

Two days' notice, or less if the court allows, and then a decision "as promptly as justice requires."

A short checklist

If you have been put out of a property:

1. Check how possession was taken — force, violence, fraud or stealth, or by threats in one of the four named circumstances.
2. Note the timing. A Sunday, a holiday, the nighttime or your temporary absence are each qualifying circumstances.
3. Give 7 days' written notice of the time and place of hearing; there is no ex parte route.
4. Frame the application around the manner of taking, not around who owns the property.
5. Keep the title claim in the main case; the writ decides possession only.

Applying for an injunction generally:

1. Plead into one of the Rule 65(e) categories rather than reciting the federal factors.
2. Be ready on security, unless you act for the State or a political subdivision.
3. Check for a governing statute if the dispute is between employer and employee.
4. Give notice — the without-notice route is the exception in Idaho as elsewhere.
5. Read the order for scope before relying on it; the restitution writ is deliberately narrow.

Where these rules live

• I.R.C.P. 65 — Injunctions and restraining orders
• I.R.C.P. 2.2 — Computing and extending time
• Responding to an Idaho complaint
• Idaho motion to dismiss
• Idaho depositions
• Idaho subpoenas

This page explains what the rules say. It isn't legal advice, and the Idaho statutes governing employer-and-employee injunctions are not carried on this site.