ORS Chapter 34

Chapter 34 — Writs

 

2009 EDITION

 

 

WRITS

 

SPECIALACTIONS AND PROCEEDINGS

 

WRITOF REVIEW

 

34.010       Formerwrit of certiorari as writ of review

 

34.020       Whomay obtain review; intermediate orders reviewable

 

34.030       Jurisdictionto grant writ; petition for writ; time limit

 

34.040       Whenallowed

 

34.050       Plaintiff’sundertaking

 

34.060       Towhom directed; return

 

34.070       Stayof proceedings

 

34.080       Issuanceand service of writ

 

34.090       Orderfor further return

 

34.100       Powerof court on review; appeal

 

34.102       Reviewof decisions of municipal corporations; transfers between circuit court andLand Use Board of Appeals; limitations

 

WRITOF MANDAMUS

 

(Generally)

 

34.105       Definitionsfor ORS 34.105 to 34.240

 

34.110       Whenand to whom writ issued

 

34.120       Courtshaving jurisdiction

 

34.130       Petitionfor writ; service; order of allowance; intervention

 

34.140       Directionand service of writ; proof of service; enforcing obedience to writ

 

34.150       Peremptoryand alternative writs; form

 

34.160       Allowanceof peremptory writ in first instance

 

34.170       Answeror motion to dismiss by defendant

 

34.180       Failureto answer or move for dismissal; additional pleadings

 

34.190       Otherpleadings; construction and amendment of pleadings; motions; manner of trial

 

34.200       Trialduring term time or vacation; allowance and trial in Supreme Court

 

34.210       Recoveryof damages; attorney fees, costs and disbursements

 

34.220       Recoveryas a bar

 

34.230       Impositionof fine; payment as bar

 

34.240       Appeal

 

(MandamusUnder Supreme Court’s Original Jurisdiction)

 

34.250       Certainmandamus proceedings under Supreme Court’s original jurisdiction

 

WRITOF HABEAS CORPUS

 

34.310       Purposeof writ; who may prosecute

 

34.320       Courtshaving jurisdiction; transfer of proceedings

 

34.330       Whomay not prosecute writ

 

34.340       Petition;who may apply; fee

 

34.350       Applicationby district attorney

 

34.355       Appointmentof counsel; compensation and costs

 

34.360       Contentsof petition when person challenges authority for confinement

 

34.362       Contentsof petition when person challenges conditions of confinement or deprivation ofrights while confined

 

34.365       Filingpetition of prisoner without payment of filing fees; fee as charge againsttrust account

 

34.370       Orderto show cause; time for ruling on show cause order; attorney fees; entry ofjudgment or issuance of writ; effect

 

34.380       Warrantin lieu of writ; when issued

 

34.390       Orderfor arrest of person having custody

 

34.400       Executionof warrant; return and proceedings thereon

 

34.410       Criminaloffense by person having custody

 

34.421       Contentsof writ

 

34.430       Defectof form; designation of persons

 

34.440       Whomay serve writ; tender of fees and undertaking when service is on sheriff orother officer

 

34.450       Paymentof charges when service is on person other than sheriff or other officer

 

34.460       Mannerof service

 

34.470       Servicewhen officer or other person hides or refuses admittance

 

34.480       Proofof service

 

34.490       Dutyto obey writ

 

34.500       Whenreturn must be made

 

34.520       Sicknessof person

 

34.530       Requiringreturn and production of party by order

 

34.540       Contentsof return

 

34.550       Warrantin case of refusal or neglect to obey writ

 

34.560       Failureof sheriff to return writ

 

34.570       Preceptcommanding bringing of prisoner

 

34.580       Inquiryinto cause of imprisonment

 

34.590       Dischargewhen no legal cause for restraint is shown

 

34.600       Whenparty to be remanded

 

34.610       Groundsfor discharge of prisoner in custody under order or civil process

 

34.620       Inquiryinto legality of certain judgments and process not permitted

 

34.630       Proceedingswhere commitment for criminal offense is legal, or party probably is guilty

 

34.640       Custodyof party pending proceedings

 

34.650       Noticeto third persons

 

34.660       Noticeto district attorney

 

34.670       Replicationfollowing return; hearing

 

34.680       Motionto deny petition; motion to strike; controverting replication; time to plead;construction and effect of pleadings

 

34.690       Requiringproduction of person after writ issued

 

34.695       Conductof hearing

 

34.700       Judgment;liability for obedience to judgment; payment of attorney fees

 

34.710       Appeal;conclusiveness of judgment

 

34.712       Summaryaffirmation of judgment on appeal

 

34.720       Imprisonmentafter discharge

 

34.730       Forfeiturefor refusing copy of order or process

 

AMENDMENTOF PETITION OR ACTION TO SEEK PROPER REMEDY

 

34.740       Amendmentof petition or action against public body when wrong remedy sought; effect ofamendment on time limitations; attorney fees

 

CERTAINWRITS ABOLISHED

 

34.810       Scirefacias and quo warranto

 

WRITOF REVIEW

 

      34.010Former writ of certiorari as writ of review. The writ heretofore known as thewrit of certiorari is known in these statutes as the writ of review.

 

      34.020Who may obtain review; intermediate orders reviewable. Except for aproceeding resulting in a land use decision or limited land use decision as definedin ORS 197.015, for which review is provided in ORS 197.830 to 197.845, or anexpedited land division as described in ORS 197.360, for which review isprovided in ORS 197.375 (8), any party to any process or proceeding before orby any inferior court, officer, or tribunal may have the decision ordetermination thereof reviewed for errors, as provided in ORS 34.010 to 34.100,and not otherwise. Upon a review, the court may review any intermediate orderinvolving the merits and necessarily affecting the decision or determinationsought to be reviewed. [Amended by 1979 c.772 §8; 1981 c.748 §38; 1983 c.827 §42;1991 c.817 §18; 1995 c.595 §21]

 

      34.030Jurisdiction to grant writ; petition for writ; time limit. The writ shallbe allowed by the circuit court, or, in counties where the county court hasjudicial functions, by the county court wherein the decision or determinationsought to be reviewed was made, upon the petition of the plaintiff, describingthe decision or determination with convenient certainty, and setting forth theerrors alleged to have been committed therein. The petition shall be signed bythe plaintiff or the attorney of the plaintiff, and verified by the certificateof an attorney to the effect that the attorney has examined the process orproceeding, and the decision or determination therein, and that it is erroneousas alleged in the petition. A writ shall not be allowed unless the petitiontherefor is made within 60 days from the date of the decision or determinationsought to be reviewed. [Amended by 1979 c.772 §9a]

 

      34.040When allowed.(1) The writ shall be allowed in all cases in which a substantial interest of aplaintiff has been injured and an inferior court including an officer ortribunal other than an agency as defined in ORS 183.310 (1) in the exercise ofjudicial or quasi-judicial functions appears to have:

      (a)Exceeded its jurisdiction;

      (b)Failed to follow the procedure applicable to the matter before it;

      (c)Made a finding or order not supported by substantial evidence in the wholerecord;

      (d)Improperly construed the applicable law; or

      (e)Rendered a decision that is unconstitutional.

      (2)The fact that the right of appeal exists is no bar to the issuance of the writ.[Amended by 1965 c.292 §1; 1973 c.561 §1; 1979 c.772 §13; 1995 c.79 §12; 1995c.658 §29]

 

      34.050Plaintiff’s undertaking. Before allowing the writ, the court shall requirethe plaintiff to give an undertaking to its approval, with one or moresureties, in the sum of $100, to the effect that the plaintiff will pay allcosts and disbursements that may be adjudged to the defendant on the review. [Amendedby 1977 c.515 §3; 1979 c.772 §9]

 

      34.055 [1977 c.515 §2;repealed by 1979 c.772 §26]

 

      34.060To whom directed; return. The writ shall be directed to the court, officer,or tribunal whose decision or determination is sought to be reviewed, or to theclerk or other person having the custody of its records or proceedings,requiring return of the writ to the circuit court, with a certified copy of therecord or proceedings in question annexed thereto, so that the same may bereviewed by the circuit court. The court allowing the writ shall fix the dateon which it is to be returned, and such date shall be specified in the writ. [Amendedby 1959 c.638 §9]

 

      34.070Stay of proceedings.In the discretion of the court issuing the writ, the writ may contain arequirement that the defendant desist from further proceedings in the matter tobe reviewed, whereupon the proceedings shall be stayed accordingly. [Amended by197