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Rule 65B

Rule 65B. Extraordinary relief.

(a) Availability of remedy. Where no other plain, speedyand adequate remedy is available, a person may petition the court forextraordinary relief on any of the grounds set forth in paragraph (b)(involving wrongful restraint on personal liberty), paragraph (c) (involvingthe wrongful use of public or corporate authority) or paragraph (d) (involvingthe wrongful use of judicial authority, the failure to exercise such authority,and actions by the Board of Pardons and Parole). There shall be no special formof writ. Except for instances governed by Rule 65C, the procedures in this ruleshall govern proceedings on all petitions for extraordinary relief. To theextent that this rule does not provide special procedures, proceedings onpetitions for extraordinary relief shall be governed by the procedures setforth elsewhere in these rules.

(b) Wrongful restraints on personal liberty.

(b)(1) Scope. Except for instances governed by Rule 65C,this paragraph shall govern all petitions claiming that a person has beenwrongfully restrained of personal liberty, and the court may grant reliefappropriate under this paragraph.

(b)(2) Commencement. The proceeding shall be commenced byfiling a petition with the clerk of the court in the district in which thepetitioner is restrained or the respondent resides or in which the allegedrestraint is occurring.

(b)(3) Contents of the petition and attachments. Thepetition shall contain a short, plain statement of the facts on the basis ofwhich the petitioner seeks relief. It shall identify the respondent and theplace where the person is restrained. It shall state the cause or pretense ofthe restraint, if known by the petitioner. It shall state whether the legalityof the restraint has already been adjudicated in a prior proceeding and, if so,the reasons for the denial of relief in the prior proceeding. The petitionershall attach to the petition any legal process available to the petitioner thatresulted in restraint. The petitioner shall also attach to the petition a copyof the pleadings filed by the petitioner in any prior proceeding thatadjudicated the legality of the restraint.

(b)(4) Memorandum of authorities. The petitioner shall notset forth argument or citations or discuss authorities in the petition, butthese may be set out in a separate memorandum, two copies of which shall befiled with the petition.

(b)(5) Dismissal of frivolous claims. On review of thepetition, if it is apparent to the court that the legality of the restraint hasalready been adjudicated in a prior proceeding, or if for any other reason anyclaim in the petition shall appear frivolous on its face, the court shallforthwith issue an order dismissing the claim, stating that the claim isfrivolous on its face and the reasons for this conclusion. The order need notstate findings of fact or conclusions of law. The order shall be sent by mailto the petitioner. Proceedings on the claim shall terminate with the entry ofthe order of dismissal.

(b)(6) Responsive pleadings. If the petition is notdismissed as being frivolous on its face, the court shall direct the clerk ofthe court to serve a copy of the petition and a copy of any memorandum upon therespondent by mail. At the same time, the court may issue an order directingthe respondent to answer or otherwise respond to the petition, specifying atime within which the respondent must comply. If the circumstances require, thecourt may also issue an order directing the respondent to appear before the courtfor a hearing on the legality of the restraint. An answer to a petition shallstate plainly whether the respondent has restrained the person alleged to havebeen restrained, whether the person so restrained has been transferred to anyother person, and if so, the identity of the transferee, the date of thetransfer, and the reason or authority for the transfer. Nothing in thisparagraph shall be construed to prohibit the court from ruling upon thepetition based upon a dispositive motion.

(b)(7) Temporary relief. If it appears that the personalleged to be restrained will be removed from the court's jurisdiction or willsuffer irreparable injury before compliance with the hearing order can beenforced, the court shall issue a warrant directing the sheriff to bring therespondent before the court to be dealt with according to law. Pending adetermination of the petition, the court may place the person alleged to havebeen restrained in the custody of such other persons as may be appropriate.

(b)(8) Alternative service of the hearing order. If therespondent cannot be found, or if it appears that a person other than therespondent has custody of the person alleged to be restrained, the hearingorder and any other process issued by the court may be served on the personhaving custody in the manner and with the same effect as if that person hadbeen named as respondent in the action.

(b)(9) Avoidance of service by respondent. If anyone havingcustody of the person alleged to be restrained avoids service of the hearingorder or attempts wrongfully to remove the person from the court'sjurisdiction, the sheriff shall immediately arrest the responsible person. Thesheriff shall forthwith bring the person arrested before the court to be dealtwith according to law.

(b)(10) Hearing or other proceedings. In the event that thecourt orders a hearing, the court shall hear the matter in a summary fashionand shall render judgment accordingly. The respondent or other person havingcustody shall appear with the person alleged to be restrained or shall statethe reasons for failing to do so. The court may nevertheless direct therespondent to bring before it the person alleged to be restrained. If thepetitioner waives the right to be present at the hearing, the court shallmodify the hearing order accordingly. The hearing order shall not be disobeyedfor any defect of form or any misdescription in the order or the petition, ifenough is stated to impart the meaning and intent of the proceeding to therespondent.

(c) Wrongful use of or failure to exercise publicauthority.

(c)(1) Who may petition the court; security. The attorneygeneral may, and when directed to do so by the governor shall, petition thecourt for relief on the grounds enumerated in this paragraph. Any person whois not required to be represented by the attorney general and who is aggrievedor threatened by one of the acts enumerated in subparagraph (2) of thisparagraph may petition the court under this paragraph if (A) the person claimsto be entitled to an office unlawfully held by another or (B) if the attorneygeneral fails to file a petition under this paragraph after receiving notice ofthe person's claim. A petition filed by a person other than the attorneygeneral under this paragraph shall be brought in the name of the petitioner,and the petition shall be accompanied by an undertaking with sufficientsureties to pay any judgment for costs and damages that may be recoveredagainst the petitioner in the proceeding. The sureties shall be in the form forbonds on appeal provided for in Rule 73.

(c)(2) Grounds for relief. Appropriate relief may begranted: (A) where a person usurps, intrudes into, or unlawfully holds orexercises a public office, whether civil or military, a franchise, or an officein a corporation created by the authority of the state of Utah; (B) where apublic officer does or permits any act that results in a forfeiture of theoffice; (C) where persons act as a corporation in the state of Utah withoutbeing legally incorporated; (D) where any corporation has violated the laws ofthe state of Utah relating to the creation, alteration or renewal ofcorporations; or (E) where any corporation has forfeited or misused itscorporate rights, privileges or franchises.

(c)(3) Proceedings on the petition. On the filing of apetition, the court may require that notice be given to adverse parties beforeissuing a hearing order, or may issue a hearing order requiring the adverseparty to appear at the hearing on the merits. The court may also granttemporary relief in accordance with the terms of Rule 65A.

(d) Wrongful use of judicial authority or failure to complywith duty; actions by board of pardons and parole.

(d)(1) Who may petition. A person aggrieved or whoseinterests are threatened by any of the acts enumerated in this paragraph maypetition the court for relief.

(d)(2) Grounds for relief. Appropriate relief may begranted: (A) where an inferior court, administrative agency, or officerexercising judicial functions has exceeded its jurisdiction or abused itsdiscretion; (B) where an inferior court, administrative agency, corporation orperson has failed to perform an act required by law as a duty of office, trustor station; (C) where an inferior court, administrative agency, corporation orperson has refused the petitioner the use or enjoyment of a right or office towhich the petitioner is entitled; or (D) where the Board of Pardons and Parolehas exceeded its jurisdiction or failed to perform an act required by constitutionalor statutory law.

(d)(3) Proceedings on the petition. On the filing of apetition, the court may require that notice be given to adverse parties beforeissuing a hearing order, or may issue a hearing order requiring the adverseparty to appear at the hearing on the merits. The court may direct the inferiorcourt, administrative agency, officer, corporation or other person named asrespondent to deliver to the court a transcript or other record of theproceedings. The court may also grant temporary relief in accordance with theterms of Rule 65A.

(d)(4) Scope of review. Where the challenged proceedingsare judicial in nature, the court's review shall not extend further than todetermine whether the respondent has regularly pursued its authority.

Advisory Committee Notes