Idaho Code

Idaho Code § 12-122 (2026)

Attorney’s fees in habeas corpus actions.

✓ current as of May 2026

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Attorney’s fees in habeas corpus actions.

In any habeas corpus action brought by a state penitentiary or county jail inmate, the judge shall award reasonable attorney’s fees to the respondent, if, in the judgment of the court, the habeas corpus action was brought frivolously by the petitioner.

In all habeas corpus actions which result in a denial or dismissal of a writ of habeas corpus, the court shall make a specific finding whether or not the habeas corpus action was brought frivolously by the petitioner.

For purposes of this section, "brought frivolously," shall mean that the petitioner petitioned the court for a writ of habeas corpus based upon claims which either had no basis in fact or, even if the factual allegations were true, they did not, as a matter of law, justify any relief to the petitioner; provided, however, that the court, in its discretion, may determine that the action was not brought frivolously when the action involves a material issue of law that has not been settled by statute or by supreme court decision in this state.

Notes of Decisions

Cited in 17 cases, 1988–2020 · leading case: Sanchez v. Arave, 815 P.2d 1061 (Idaho 1991).

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Sanchez v. Arave, 815 P.2d 1061 (Idaho 1991). · cites it 92× “Idaho Code § 12-122 also creates the prison inmate versus non-inmate classification proscribed by the Supreme Court in Rinaldi v.”

Banks v. State, 920 P.2d 905 (Idaho 1996). · cites it 8× “THE STATE IS ENTITLED TO AN AWARD OF ATTORNEY FEES PURSUANT TO I.C. § 12-122 Banks argues that I.C. § 12-122 is unconstitutional since it singles out a particular class of people, in violation of the Fourteenth Amendment of the United States Constitution and article I, § 13 of…”

Drennon v. Craven, 105 P.3d 694 (Idaho Ct. App. 2004). · cites it 6× “Attorney Fees and Costs Craven requests costs and reasonable attorney fees on appeal under I.C. §§ 12-122, 12-123, I.A.R. 35(a)(5) and I.”

Schevers v. State, 930 P.2d 603 (Idaho 1996). · cites it 4× “The State requests attorney fees under Idaho Code section 12-122, which permits attorney fees to be awarded to the respondent in a habeas corpus action if the court finds that the action was brought frivolously.”

Dopp v. Idaho Comm'n of Pardons & Parole, 84 P.3d 593 (Idaho Ct. App. 2004). · cites it 4× “Costs and Attorney Fees On intermediate appeal, the district court concluded that Dopp’s claims were frivolously pursued and awarded attorney fees as authorized by I.C. § 12-122. Dopp contends that the district court erred.”

Stevens v. Stevens, 16 P.3d 900 (Idaho 2000). · cites it 4× “Larry also requests attorney fees pursuant to I.C. § 12-122. Section 12-122 allows for the award of attorney fees in frivolous habeas corpus actions brought by prisoners or jail inmates.”

Gibson v. Bennett, 108 P.3d 417 (Idaho Ct. App. 2005). · cites it 2× “§ 12-121 rather *277 than I.C. § 12-122, the statute that generally governs the award of attorney fees in habeas corpus actions.”

Waggoner v. State, 828 P.2d 321 (Idaho Ct. App. 1991). · cites it 6× “The magistrate found that due process had been fully satisfied and that the petition had been frivolously brought, and he awarded costs to the state under I.C. § 12-122. The district court affirmed the magistrate’s order.”

State v. Wiedmeier, 824 P.2d 120 (Idaho 1992). · cites it 2× “2d 1061 (1991), the appellant did not challenge the constitutionality of I.C. § 12-122 until the appeal to this Court.”

Swain v. State, 841 P.2d 448 (Idaho Ct. App. 1992). · cites it 14× “The request is made under I.C. § 12-122. 1 This statute provides as follows: In any habeas corpus action brought by a state penitentiary or county jail inmate, the judge shall award reasonable attorney’s fees to the respondent, if, in the judgment of the court, the habeas corpus…”

Werlinger v. State, 785 P.2d 172 (Idaho Ct. App. 1990). · cites it 4× “The magistrate based the award in this case upon I.C. § 12-122. The statute provides that attorney fees shall be awarded to the respondent if an inmate of a state prison or county jail files a petition which the court deems to be frivolous.”

Sivak v. State, 950 P.2d 257 (Idaho Ct. App. 1997). · cites it 2× “Our court system has far more important and pressing issues to resolve with its finite resources.”

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