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Chapter 34 — Writs
WRIT OF REVIEW
34.010 Former writ of certiorari as writ of review. The writ heretofore known as the writ of certiorari is known in these statutes as the writ of review.
34.020 Who may obtain review; intermediate orders reviewable. Except for a proceeding resulting in a land use decision or limited land use decision as defined in ORS 197.015, for which review is provided in ORS 197.830 to 197.845, or an expedited land division as described in ORS 197.360, for which review is provided in ORS 197.375 (8), any party to any process or proceeding before or by any inferior court, officer, or tribunal may have the decision or determination 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 order involving the merits and necessarily affecting the decision or determination sought 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]
34.030 Jurisdiction to grant writ; petition for writ; time limit. The writ shall be allowed by the circuit court, or, in counties where the county court has judicial functions, by the county court wherein the decision or determination sought to be reviewed was made, upon the petition of the plaintiff, describing the decision or determination with convenient certainty, and setting forth the errors alleged to have been committed therein. The petition shall be signed by the plaintiff or the attorney of the plaintiff, and verified by the certificate of an attorney to the effect that the attorney has examined the process or proceeding, and the decision or determination therein, and that it is erroneous as alleged in the petition. A writ shall not be allowed unless the petition therefor is made within 60 days from the date of the decision or determination sought to be reviewed. [Amended by 1979 c.772 §9a]
34.040 When allowed. (1) The writ shall be allowed in all cases in which a substantial interest of a plaintiff has been injured and an inferior court including an officer or tribunal other than an agency as defined in ORS 183.310 (1) in the exercise of judicial 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 whole record;
(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; 1995 c.658 §29]
34.050 Plaintiff’s undertaking. Before allowing the writ, the court shall require the plaintiff to give an undertaking to its approval, with one or more sureties, in the sum of $100, to the effect that the plaintiff will pay all costs and disbursements that may be adjudged to the defendant on the review. [Amended by 1977 c.515 §3; 1979 c.772 §9]
34.055 [1977 c.515 §2; repealed by 1979 c.772 §26]
34.060 To 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 the clerk 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 the record or proceedings in question annexed thereto, so that the same may be reviewed by the circuit court. The court allowing the writ shall fix the date on which it is to be returned, and such date shall be specified in the writ. [Amended by 1959 c.638 §9]
34.070 Stay of proceedings. In the discretion of the court issuing the writ, the writ may contain a requirement that the defendant desist from further proceedings in the matter to be reviewed, whereupon the proceedings shall be stayed accordingly. [Amended by 1977 c.515 §4; 1979 c.772 §10]
34.080 Issuance and service of writ. Upon the filing of the order allowing the writ, and the petition and undertaking of the plaintiff, the clerk shall issue the writ, as ordered. The writ shall be served by delivering the original, according to the direction thereof, and may be served by any person authorized to serve a summons. A certified copy of the writ shall be served by delivery to the opposite party in the suit or proceeding sought to be reviewed, at least 10 days before the return of the original writ.
34.090 Order for further return. If the return to the writ is incomplete, the court may order a further return to be made.
34.100 Power of court on review; appeal. Upon the review, the court shall have power to affirm, modify, reverse or annul the decision or determination reviewed, and if necessary, to award restitution to the plaintiff, or to direct the inferior court, officer, or tribunal to proceed in the matter reviewed according to its decision. From the judgment of the circuit court on review, an appeal may be taken in like manner and with like effect as from a judgment of a circuit court in an action. [Amended by 1973 c.197 §2; 1981 c.178 §2]
34.102 Review of decisions of municipal corporations; transfers between circuit court and Land Use Board of Appeals; limitations. (1) As used in this section, "municipal corporation" means a county, city, district or other municipal corporation or public corporation organized for a public purpose, including a cooperative body formed between municipal corporations.
(2) Except for a proceeding resulting in a land use decision or limited land use decision as defined in ORS 197.015, for which review is provided in ORS 197.830 to 197.845, or an expedited land division as described in ORS 197.360, for which review is provided in ORS 197.375 (8), the decisions of the governing body of a municipal corporation acting in a judicial or quasi-judicial capacity and made in the transaction of municipal corporation business shall be reviewed only as provided in ORS 34.010 to 34.100, and not otherwise.
(3) A petition for writ of review filed in the circuit court and requesting review of a land use decision or limited land use decision as defined in ORS 197.015 of a municipal corporation shall be transferred to the Land Use Board of Appeals and treated as a notice of intent to appeal if the petition was filed within the time allowed for filing a notice of intent to appeal pursuant to ORS 197.830. If the petition was not filed within the time allowed by ORS 197.830, the court shall dismiss the petition.
(4) A notice of intent to appeal filed with the Land Use Board of Appeals pursuant to ORS 197.830 and requesting review of a decision of a municipal corporation made in the transaction of municipal corporation business that is not reviewable as a land use decision or limited land use decision as defined in ORS 197.015 shall be transferred to the circuit court and treated as a petition for writ of review. If the notice was not filed with the board within the time allowed for filing a petition for writ of review pursuant to ORS 34.010 to 34.100, the court shall dismiss the petition.
(5) In any case in which the Land Use Board of Appeals or circuit court to which a petition or notice is transferred under subsection (3) or (4) of this section disputes whether it has authority to review the decision with which the petition or notice is concerned, the board or court before which the matter is pending shall refer the question of whether the board or court has authority to review to the Court of Appeals, which shall decide the question in a summary manner. [Formerly 19.230]
Note: 34.102 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 34 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
WRIT OF MANDAMUS
34.105 Definitions for ORS 34.105 to 34.240. As used in ORS 34.105 to 34.240:
(1) "Adverse party" means a beneficially interested party to a judicial or administrative proceeding from which a mandamus proceeding arises, whose interests are adverse to the relator.
(2) "Counsel for defendant" means the attorney who appears on behalf of the defendant in a mandamus proceeding as provided in ORS 34.130 (4).
(3) "Defendant" means the court, corporation, board, officer or person against whom relief is sought in a mandamus proceeding.
(4) "Relator" means the beneficially interested party on whose relation a mandamus proceeding is brought. [1989 c.702 §2]
34.110 When and to whom writ issued. A writ of mandamus may be issued to any inferior court, corporation, board, officer or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station; but though the writ may require such court, corporation, board, officer or person to exercise judgment, or proceed to the discharge of any functions, it shall not control judicial discretion. The writ shall not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law.
34.120 Courts having jurisdiction. (1) Except as provided in subsection (2) of this section, the circuit court or judge thereof of the county wherein the defendant, if a public officer or body, exercises functions, or if a private person or corporation, wherein such person resides or may be found, or such private corporation might be sued in an action, shall have exclusive jurisdiction of mandamus proceedings, including proceedings under ORS 215.429 and 227.179.
(2) The regular division of the Oregon Tax Court or judge thereof shall have jurisdiction in mandamus proceedings in all cases involving tax laws as described in ORS 305.410, and the Supreme Court may take original jurisdiction in mandamus proceedings as provided in section 2 of amended Article VII of the Oregon Constitution. [Amended by 1965 c.6 §10; 1999 c.340 §6; 1999 c.533 §1]
34.130 Petition for writ; service; order of allowance; intervention. (1) The relator shall file a petition for a writ of mandamus with the clerk of the court or court administrator.
(2) The relator shall serve a copy of the petition on the defendant and, if the mandamus proceeding arises from a judicial or administrative proceeding, on all parties to such proceeding. Service of the petition on the defendant and adverse parties is sufficient if it complies with ORCP 9 B. The court in its discretion may act on a petition regardless of defects in the service of the petition on any adverse party, and the petition may be allowed with or without notice to the adverse party, as in a writ of review proceeding.
(3) Except as to a petition filed in the Supreme Court, the writ shall be allowed by the court or judge thereof on the petition. On the filing of the order of allowance, the clerk or court administrator forthwith shall issue the writ in accordance with the petition. The clerk or court administrator may require the relator to provide a form of writ in accordance with the petition.
(4)(a) Except as provided in paragraph (b) of this subsection, at any time in the course of a mandamus action until the return date of the alternative writ, any adverse party may intervene in the mandamus proceeding as matter of right. At any time subsequent to the return date of the alternative writ, the court in its discretion may allow an adverse party to intervene. With the consent of the defendant and, if the defendant is a judge of the Supreme Court, Court of Appeals, Oregon Tax Court or circuit court, subject to ORS 1.550 and 1.560, the attorney for an adverse party may appear on behalf of the defendant.
(b) For a petition filed pursuant to ORS 215.429 or 227.179, a motion to intervene must be filed with the court within 21 days of the date the petition was filed under subsection (1) of this section.
(5) The filing or allowance of a petition for a writ of mandamus does not stay any judicial or administrative proceeding from which the mandamus proceeding may arise, but the court in its discretion may stay such proceeding. [Amended by 1971 c.193 §27; 1989 c.702 §3; 1999 c.533 §2]
34.140 Direction and service of writ; proof of service; enforcing obedience to writ. (1) The writ shall be directed to the court, corporation, board, officer or person designated in the order of allowance, and may be served thereon, by any person authorized to serve a summons, by delivery of the original to such officer or person, or to any member of such court, or to any officer of such corporation upon whom a summons lawfully may be served. A certified copy of the writ shall be served on all intervenors, adverse parties and counsel for the defendant. Such service is sufficient if it complies with ORCP 9. The relator shall file with the court proof of service of the writ on the defendant, and intervenors, adverse parties and counsel for the defendant, if any.
(2) Obedience to the writ may be enforced in such manner as the court or judge thereof shall direct. [Amended by 1989 c.702 §4]
34.150 Peremptory and alternative writs; form. The writ shall be either alternative or peremptory; when in the alternative, it shall state concisely the facts, according to the petition, showing the obligation of the defendant to perform the act, and the omission of the defendant to perform it, and command the defendant, that immediately after the receipt of the writ, or at some other specified time, the defendant do the act required to be performed, or show cause before the court or judge thereof, by whom the writ was allowed, at a time and place therein specified, why the defendant has not done so; and that the defendant then and there return the writ, with the certificate of the defendant annexed, of having done as the defendant is commanded, or the cause of omission thereof. When peremptory, the writ shall be in a similar form, except that the words requiring the defendant to show cause why the defendant has not done as commanded, and to return the cause therefor, shall be omitted.
34.160 Allowance of peremptory writ in first instance. When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus shall be allowed in the first instance; in all other cases, the alternative writ shall be first issued.
34.170 Answer or motion to dismiss by defendant. On the return day of the alternative writ, or such further day as the court or judge thereof may allow, the defendant on whom the writ was served may show cause by motion to dismiss or answer to the writ, in the same manner as to a complaint in an action. [Amended by 1979 c.284 §70]
34.180 Failure to answer or move for dismissal; additional pleadings. If the defendant does not show cause by motion to dismiss or answer, a peremptory mandamus shall be allowed against the defendant. If the answer contains new matter, the same may be moved against or replied to by the plaintiff, within such time as the court or judge may prescribe. If the replication contains new matter, the same may be moved against by the defendant within such time as the court or judge may prescribe, or the defendant may countervail such matter on the trial or other proceedings by proof, either in direct denial or by way of avoidance. [Amended by 1979 c.284 §71]
34.190 Other pleadings; construction and amendment of pleadings; motions; manner of trial. The pleadings in the proceeding by mandamus are those mentioned in ORS 34.170 and 34.180, and none other are allowed. They are to have the same effect and construction, and may be amended in the same manner, as pleadings in an action. Either party may move to strike out, or be allowed to plead over after motion; and the issues joined shall be tried, and the further proceedings thereon had in like manner and with like effect as in an action. [Amended by 1979 c.284 §72]
34.200 Trial during term time or vacation; allowance and trial in Supreme Court. In the circuit court or Oregon Tax Court the writ may be made returnable either in term time or vacation, and if the latter, may be tried and determined before the judge in like manner and with like effect as in term time. In the Supreme Court the writ may be allowed by the court or any judge thereof, but shall only be tried and determined by the court; and all issues therein shall be tried by the court. [Amended by 1965 c.6 §11]
34.210 Recovery of damages; attorney fees, costs and disbursements. (1) If the court orders issuance of a peremptory writ of mandamus, the relator shall recover from the defendant damages which the relator has sustained from a false return, to be ascertained in the same manner as in an action.
(2) The court in its discretion may designate a prevailing party and award attorney fees, costs and disbursements to the prevailing party, but no attorney fees, costs and disbursements shall be awarded against a judge as a defendant in a mandamus action for any action taken in the judge’s official capacity. Attorney fees, costs and disbursements may only be awarded against adverse parties who have been served with the petition and writ. [Amended by 1989 c.702 §5]
34.220 Recovery as a bar. A recovery of damages by virtue of ORS 34.210 against a party who has made a return to a writ of mandamus is a bar to any other action or suit against the same party for the same cause.
34.230 Imposition of fine; payment as bar. Whenever a peremptory mandamus is directed to a public officer or body commanding the performance of any public duty specially enjoined by law, if it appears to the court or judge thereof that the officer or any member of the body has without just excuse refused or neglected to perform the duty so enjoined, the court or judge may impose a fine, not exceeding $500, upon every such officer or member of such body; and the payment thereof is a bar to any action for any penalty incurred by the officer or member by reason of the refusal or neglect of the officer or member to perform the duty so enjoined.
34.240 Appeal. From the judgment of the circuit court or Oregon Tax Court, or judge thereof, refusing to allow a mandamus, or directing a peremptory mandamus, an appeal may be taken in like manner and with like effect as in an action. [Amended by 1965 c.6 §12; 1973 c.197 §3]
(Mandamus Under Supreme Court’s Original Jurisdiction)
34.250 Certain mandamus proceedings under Supreme Court’s original jurisdiction. (1) The provisions of this section apply only to the exercise of the Supreme Court’s original jurisdiction in mandamus proceedings that challenge the actions of judges in particular cases in the circuit courts, the Oregon Tax Court or the Court of Appeals. The provisions of this section do not apply to the exercise of the Supreme Court’s original jurisdiction in mandamus proceedings that challenge the administrative action of a judge or court, or that challenge other action of a judge or court that is of an institutional nature. To the extent that any provision of ORS 34.105 to 34.240 is inconsistent with the provisions of this section, the provisions of this section govern in mandamus proceedings subject to this section.
(2) The case title of a petition in a mandamus proceeding that is subject to this section must be the same as the case title of the proceeding in the lower court, except that the relator must be designated as "relator" in addition to the relator’s designation in the lower court, and any party who is adverse to the relator must be designated as "adverse party" in addition to that party’s designation in the lower court. The petition must not name as a party to the mandamus proceeding the lower court or the judge whose action is challenged.
(3) The relator must serve a copy of the petition on all parties who have appeared in the lower court case and on the judge or court whose action is being challenged.
(4) The judge or court whose action is challenged in the mandamus proceeding may seek to intervene in the mandamus proceeding if the judge or court wishes to assert an interest separate from the parties. If the Supreme Court allows the judge or court to intervene, the judge or court shall be designated as "intervenor" in the mandamus proceeding.
(5) If the Supreme Court elects to issue an alternative writ of mandamus, the Supreme Court shall issue an order allowing the petition. The order may be issued in combination with the alternative writ of mandamus. The State Court Administrator shall mail copies of the Supreme Court’s order and alternative writ of mandamus to the relator, to the adverse party, to any intervenor, and to the judge or court whose action is challenged in the petition. Proof of service of an alternative writ need not be filed with the Supreme Court, and the judge or court to which the writ is issued need not file a return unless the alternative writ specifically requires a return.
(6) At any time after the filing of the petition for writ of mandamus or issuance of the alternative writ of mandamus, if the judge or court whose action is being challenged performs the act sought in the petition or required by the alternative writ, the relator shall notify the Supreme Court that the judge or court has complied. The judge, the court, or any other party to the lower court case may also give notice to the Supreme Court of the compliance. On motion of any party or on its own motion, the Supreme Court may dismiss a mandamus proceeding after receiving the notice provided for in this subsection.
(7) If the judge or court to whom the alternative writ of mandamus is directed does not perform the act required by the writ, the mandamus proceeding will proceed to briefing and oral argument as provided in the rules of the Supreme Court or as directed by the Supreme Court. An answer or other responsive pleading need not be filed by any party to the proceeding unless the alternative writ specifically requires the filing of an answer or other responsive pleading.
(8) If the Supreme Court has determined that the relator is entitled to a peremptory writ of mandamus, the court shall direct the State Court Administrator to issue a peremptory writ of mandamus. The peremptory writ of mandamus may be combined with the appellate judgment. If a combined peremptory writ of mandamus and an appellate judgment issue, the relator need not file proof of service of the writ with the court, and the judge or court to which the writ is issued need not file a return showing compliance with the writ.
(9) The State Court Administrator shall issue an appellate judgment showing the Supreme Court’s disposition of the matter, as provided in the rules of the Supreme Court, if:
(a) The court has issued an alternative or peremptory writ of mandamus, the mandamus proceeding is concluded and all issues in the proceeding have been decided; or
(b) The court has not issued a writ of mandamus, but the court has awarded costs and disbursements or attorney fees in the proceeding. [1997 c.388 §2]
WRIT OF HABEAS CORPUS
34.310 Purpose of writ; who may prosecute. The writ of habeas corpus ad subjiciendum is the writ designated in ORS 34.310 to 34.730, and every other writ of habeas corpus is abolished. Every person imprisoned or otherwise restrained of liberty, within this state, except in the cases specified in ORS 34.330, may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint, and if illegal, to be delivered therefrom.
34.320 Courts having jurisdiction; transfer of proceedings. The circuit court of the judicial district wherein the party is imprisoned or restrained, and, if vested with power to exercise judicial functions, the county court and county judge of the county wherein the party is imprisoned or restrained, shall have concurrent jurisdiction of proceedings by habeas corpus, and said courts and judges may issue, hear and decide all questions arising upon habeas corpus. If a plaintiff has filed a petition in a court with jurisdiction over the proceedings, and the plaintiff is thereafter transferred to a place that is outside of the jurisdiction of that court, the court shall transfer the proceedings to the circuit court for the judicial district in which the party is imprisoned or restrained. If the court in which the petition was filed determines that by reason of the plaintiff’s transfer the claims of the plaintiff do not require immediate judicial scrutiny, or are otherwise subject to dismissal, the court shall dismiss the petition. [Amended by 1999 c.114 §1]
34.330 Who not entitled to prosecute writ. A person may not prosecute a writ of habeas corpus if:
(1) The person is imprisoned or restrained by virtue of process issued by a court of the United States, or a judge, commissioner or other officer thereof, in cases where such courts, or judges or officers thereof, have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of actions, suits or other proceedings in such court, or before such commissioner or other officer.
(2) The person is imprisoned or restrained by virtue of the judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such judgment or decree.
(3) Except as provided in ORS 138.530, the person is eligible to obtain post-conviction relief pursuant to ORS 138.510 to 138.680.
(4) The person is eligible to seek judicial review of a final order of the State Board of Parole and Post-Prison Supervision under ORS 144.335 but the person fails to seek judicial review of the order in a timely manner.
(5) The person seeks judicial review of a final order of the board under ORS 144.335 but the Court of Appeals:
(a) Dismisses the judicial review on the grounds that the motion for leave to proceed with judicial review described in ORS 144.335 does not present a substantial question of law;
(b) Summarily affirms the order of the board on the grounds that the motion for leave to proceed with judicial review described in ORS 144.335 does not present a substantial question of law;
(c) Otherwise disposes of the judicial review on the merits of the petitioner’s issues on judicial review; or
(d) Dismisses the judicial review because of a procedural defect. [Amended by 1959 c.636 §22; 2001 c.661 §2]
Note: Section 5, chapter 661, Oregon Laws 2001, provides:
Sec. 5. The amendments to ORS 34.330 and 144.335 by sections 1 and 2, chapter 661, Oregon Laws 2001, and the amendments to ORS 151.450 by section 110 of this 2001 Act apply only to final orders of the State Board of Parole and Post-Prison Supervision mailed on or after January 1, 2002. [2001 c.661 §5; 2001 c.962 §116]
34.340 Petition; who may apply; fee. The writ shall be allowed by the court or judge thereof upon the petition of the party for whose relief it is intended, or of some other person in behalf of the party, signed and verified by the oath of the plaintiff, to the effect that the plaintiff believes it to be true. The petition must be accompanied by a filing fee of $25. [Amended by 1995 c.657 §6; 1999 c.114 §2]
34.350 Application by district attorney. Whenever a writ of habeas corpus is required in any action, suit or proceeding, civil or criminal, to which the state is a party, the application therefor may be made by the district attorney having charge thereof, and whenever so issued the court or judge shall state in the order of allowance that it was issued on such application.
34.355 Appointment of counsel; compensation and costs. If counsel is appointed by a court to represent, in an initial proceeding by habeas corpus or on appeal as provided in ORS 34.710, a person who is imprisoned or otherwise restrained of liberty by virtue of a charge or conviction of crime and who is unable to afford counsel, the court shall determine and allow compensation for counsel and costs and expenses of the person in the proceeding or on appeal. Compensation for counsel and expenses of the person in an initial proceeding or in a circuit court on appeal shall be determined and allowed as provided in ORS 135.055. Compensation for counsel and costs and expenses of the person on appeal to the Court of Appeals or on review by the Supreme Court shall be determined and allowed as provided in ORS 138.500. The compensation and expenses so allowed in an initial proceeding in a county court shall be paid by the county in which the person was charged or convicted of crime. The compensation and expenses so allowed in an initial proceeding in a circuit court or on appeal shall be paid by the state from funds available for the purpose. [1979 c.867 §17; 1981 s.s. c.3 §128; 1985 c.502 §21]
Note: The amendments to 34.355 by section 64, chapter 962, Oregon Laws 2001, become operative October 1, 2003. See section 15, chapter 962, Oregon Laws 2001. The text that is operative on and after October 1, 2003, is set forth for the user’s convenience.
34.355. If counsel is appointed by a court to represent, in an initial proceeding by habeas corpus or on appeal as provided in ORS 34.710, a person who is imprisoned or otherwise restrained of liberty by virtue of a charge or conviction of crime and who is determined to be financially eligible for appointed counsel at state expense, the public defense services executive director shall determine compensation for counsel and costs and expenses of the person in the proceeding or on appeal. Compensation for counsel and expenses of the person in an initial proceeding or in a circuit court on appeal shall be determined and paid as provided in ORS 135.055. Compensation for counsel and costs and expenses of the person on appeal to the Court of Appeals or on review by the Supreme Court shall be determined and paid as provided in ORS 138.500. The compensation and expenses so allowed in an initial proceeding in a county court shall be paid by the county in which the person was charged or convicted of crime.
34.360 Contents of petition when person challenges authority for confinement. If the challenge is to the authority for confinement, the petition shall state, in substance:
(1) That the party in whose behalf the writ is petitioned is imprisoned or restrained of liberty, the place where, and officer or person by whom the party is imprisoned or restrained, naming both parties if their names are known, or describing them if not known.
(2) That such person is not imprisoned or restrained by virtue of any order, judgment, decree or process specified in ORS 34.330.
(3) The cause or pretense of the imprisonment or restraint, according to the best knowledge or belief of the plaintiff.
(4) If the original imprisonment or restraint is by virtue of any order, warrant or process, a copy thereof shall be annexed to the petition, or it must be alleged that, by reason of the removal or concealment of the party before the application, a demand of such copy could not be made, or that the demand was made, and the legal fees therefor tendered to the person having the party in custody, and that a copy was refused.
(5) That the claim has not already been adjudged upon a prior writ of habeas corpus, to the knowledge or belief of the plaintiff. [Amended by 1991 c.884 §3; 1999 c.114 §3]
34.362 Contents of petition when person challenges conditions of confinement or deprivation of rights while confined. If the person is imprisoned or restrained by virtue of any order, judgment, decree or process specified in ORS 34.330 and the person challenges the conditions of confinement or complains of a deprivation of rights while confined, the petition shall:
(1) Comply with requirements of ORS 34.360 (1), (3), (4) and (5); and
(2) State facts in support of a claim that the person is deprived of a constitutional right that requires immediate judicial attention and for which no other timely remedy is practicably available to the plaintiff. [1991 c.884 §5]
34.365 Filing petition of prisoner without payment of filing fees; fee as charge against trust account. (1) Any court of the State of Oregon may authorize the filing of a petition for a writ of habeas corpus by or on behalf of any person imprisoned or otherwise restrained of liberty by virtue of a charge or conviction of crime without payment of the filing fees therefor, if such person presents to the court or judge thereof satisfactory proof, by affidavit and as otherwise required by such judge, that the person is unable to pay such fees.
(2) Notwithstanding the fact that a court has authorized the filing of a petition without payment of the filing fee required by ORS 34.340, the fee may be drawn from, or charged against, the plaintiff’s trust account if the plaintiff is an inmate in a correctional facility. [1955 c.493 §1; 1995 c.657 §7; 1999 c.114 §4]
34.370 Order to show cause; time for ruling on show cause order; attorney fees; entry of judgment or issuance of writ; effect. (1) Except as provided in subsection (6) of this section, the judge to whom the petition for a writ of habeas corpus is presented shall, without delay, issue an order directing the defendant to show cause why the writ should not be allowed.
(2) Upon the issuance of a show cause order under subsection (1) of this section, the following shall apply:
(a) The judge shall order that the defendant appear in writing in opposition to the issuance of the writ as soon as is practicable and not more than 14 days from the date that the show cause order issues.
(b) The judge shall rule on the show cause order within seven days after either the defendant files a written appearance in opposition or the appearance period expires, whichever comes first. Upon making a ruling, the judge shall do one of the following, as appropriate:
(A) If the petition is a meritless petition, issue a judgment denying the petition and ordering the plaintiff to pay the cost of attorney fees incurred by the defendant. In no case shall the award of attorney fees exceed $100. The fees may be drawn from, or charged against, the inmate’s trust account.
(B) Issue a judgment granting appropriate habeas corpus relief.
(C) Issue a writ of habeas corpus requiring that a return be made.
(3) Entry of a judgment under subsection (2)(b)(A) or subsection (6) of this section shall be without prejudice. The judgment shall explain to the parties the reason for the denial.
(4) If the court has issued a writ of habeas corpus requiring a return under subsection (2)(b)(C) of this section, the parties may stipulate to a hearing as described in ORS 34.670 without the necessity of a return or a replication. If the court accepts the stipulation, it shall set the matter for hearing in an expedited manner.
(5) Issuance of the writ under subsection (2) of this section shall not bind the court with respect to any subsequent rulings related to the pleadings of the parties or the ultimate disposition of the proceeding.
(6) The court may, on its own motion, enter a judgment denying a meritless petition brought under ORS 34.310 to 34.730.
(7) As used in this section, "meritless petition" means one which, when liberally construed, fails to state a claim upon which habeas corpus relief may be granted. [Amended by 1963 c.322 §1; 1991 c.884 §6; 1995 c.294 §1; 1995 c.657 §8; 1999 c.114 §5]
34.380 Warrant in lieu of writ; when issued. Whenever it appears by satisfactory evidence that any person is illegally imprisoned or restrained and there is good reason to believe that the person will be carried out of the state or suffer irreparable injury before the person can be relieved by the issuing of a habeas corpus, any court or judge authorized to issue such writ may issue a warrant reciting the facts, directed to any sheriff or other person therein designated, commanding the sheriff or other person to take such illegally imprisoned or restrained person and forthwith bring the person before such court or judge, to be dealt with according to law.
34.390 Order for arrest of person having custody. When the proof mentioned in ORS 34.380 is also sufficient to justify an arrest of the person having the party in custody, as for a criminal offense committed in the taking or detaining of such party, the warrant may also contain an order for the arrest of such person for such offense.
34.400 Execution of warrant; return and proceedings thereon. Any officer or person to whom a warrant issued under ORS 34.380 is directed shall execute the same by bringing the party therein named and the person who detains the party, if so commanded by the warrant, before the court or judge issuing the warrant; and thereupon the person detaining such party shall make a return in like manner, and the like proceedings shall be had thereon, as if a writ of habeas corpus had been issued in the first instance.
34.410 Criminal offense by person having custody. If the person having such party in custody is brought before the court or judge as for a criminal offense, the person shall be examined, committed, released or discharged by the court or judge in like manner as in other criminal cases of like nature. [Amended by 1973 c.836 §324]
34.420 [Repealed by 1991 c.884 §1 (34.421 enacted in lieu of 34.420)]
34.421 Contents of writ. The writ shall require the defendant to file a return, at a specified time and place, that states the time and cause of plaintiff’s imprisonment or restraint. The writ shall not command the defendant to produce the plaintiff before the court or judge issuing the writ, unless the court, in its discretion, so orders. The court shall consider an allegation of lack of authority, brought only under ORS 34.360, as a factor weighing in favor of requiring the defendant to produce the plaintiff at the time of the return. [1991 c.884 §2 (enacted in lieu of 34.420)]
34.430 Defect of form; designation of persons. The writ shall not be disobeyed for any defect of form. It is sufficient:
(1) If the officer or person having the custody of the person imprisoned or restrained is designated either by name of office, if the officer or person has any, or by the own name of the officer or person, or if both such names are unknown or uncertain, the officer or person may be described by an assumed appellation; and anyone who may be served with the writ is to be deemed the officer or person to whom it was directed, although it may be directed to the officer or person by a wrong name or description, or to another person.
(2) If the person who is directed to be produced is designated by name, or if the name of the person is uncertain or unknown, the person may be described in any other way, so as to designate the person intended.
34.440 Who may serve writ; tender of fees and undertaking when service is on sheriff or other officer. (1) A writ of habeas corpus may be served by any sheriff within the county of the sheriff, or by any other person designated in the writ in any county within the state. The service of the writ shall be deemed complete, so as to require the prisoner to be brought up before the court or judge issuing the writ under the provisions of ORS 34.370, only if:
(a) The party serving the writ tenders to the person in whose custody the prisoner may be, if such person is a sheriff or other officer, the fees allowed by law for bringing up such prisoner; and
(b) The party also enters into an undertaking to such sheriff or other officer, in a penalty double the sum for which the prisoner is detained, if the prisoner is detained for any specific sum of money, and if not, then in such a sum as the judge granting the writ directs, not exceeding $1,000, to the effect that such person shall pay the charges for carrying back the prisoner if the prisoner is remanded, and that the prisoner will not escape, either in going to or returning from the place to which the prisoner is to be taken.
(2) If such fees are not paid, or such security is not tendered, the officer to whom the writ is directed shall make a return, in the manner required by ORS 34.540, and shall state in the return the reason why the prisoner is not produced, and thereupon the court or judge granting the writ may proceed as if the prisoner was produced. This section, except for the first sentence, does not apply to a case wherein the writ is issued on the application of the district attorney. [Amended by 1991 c.884 §7]
34.450 Payment of charges when service is on person other than sheriff or officer. Every court or judge allowing a writ of habeas corpus, directed to a person other than a sheriff or other officer, may require, in order to render the service effectual, that the charges of producing the party be paid by the applicant; and in such case the court or judge shall, in the order allowing the writ, specify the amount of such charges, which shall not exceed the fees allowed by law to sheriffs for similar services.
34.460 Manner of service. The writ of habeas corpus may be served by delivery of the original to the officer or person to whom it is directed, or if the officer or person cannot be found, by leaving it at the jail or other place in which the party is imprisoned or restrained, with any under officer or other person having charge for the time of such party.
34.470 Service when party hides or refuses admittance. If the officer or person on whom the writ ought to be served hides from the person attempting to make service, or refuses admittance to the person attempting to make service, it may be served by affixing it in some conspicuous place on the outside, either of the dwelling house of the officer or person or the jail or other place where the party is confined. [Amended by 1987 c.158 §5]
34.480 Proof of service. The proof of service of the writ shall be the same as in the service of a summons, except that the same shall be indorsed upon a copy of the writ made by the officer or person serving it, and returned to the clerk who issued the writ.
34.490 Duty to obey writ. It is the duty of every sheriff or other officer upon whom a writ of habeas corpus is served, whether such writ is directed to the sheriff or officer or not, upon payment or tender of the fees allowed by law, and the delivery or tender of the undertaking described in ORS 34.440, to obey and return the writ according to the exigency thereof; and it is the duty of every other person upon whom the writ is served, having the custody of the person for whose benefit it is issued, to obey and return it in like manner, without requiring the payment of any fees, unless the payment of such fees has been required by the court or judge allowing such writ.
34.500 When return must be made. If the writ is returnable at a certain time, the return shall be made at the time and place specified therein; if it is returnable forthwith, and the place of return is within 20 miles of the place of service, the return must be made within 24 hours, and the same time is allowed for every additional 20 miles.
34.510 [Repealed by 1991 c.884 §10]
34.520 Sickness of person. Whenever, from the sickness or infirmity of the party, the party cannot, without danger, be produced, the officer or person in whose custody the party is may state that fact in the return to the writ, and if satisfied of the truth of the allegation, and the return is otherwise sufficient, the court or judge shall proceed to decide on the return, and to dispose of the matter, the same as if the party had been produced.
34.530 Requiring return and production of party by order. At any time after the allowance of a writ of habeas corpus, the plaintiff therein, or the person applying therefor on behalf of the plaintiff, may give notice to the judge issuing the writ, and thereupon, if necessary to avoid delay, the judge shall by order require that the return be made and the party produced before the judge at such time and place, within the county or district, as may be convenient.
34.540 Contents of return. (1) The officer or person upon whom the writ was duly served shall state in the return, plainly and unequivocally:
(a) Whether the officer or person has the party in custody or power or under restraint, and if the officer or person has not, whether the officer or person has had the party in custody or under power or restraint at any and what time prior or subsequent to the date of the writ.
(b) If the officer or person has the party in custody or power or under restraint, the authority and true cause of such imprisonment or restraint, setting forth the same at large.
(2) If the party is detained by virtue of any writ, warrant or other written authority, a copy thereof shall be annexed to the return, and the original shall be produced, and exhibited on the return of the writ, to the court or judge before whom the writ is returnable.
(3) If the person upon whom the writ was served has had the party in power or custody or under restraint at any time prior or subsequent to the date of the writ, but has transferred such custody or restraint to another, the return shall state particularly to whom, at what time, for what cause, and by what authority the transfer took place.
(4) The return shall be signed by the person making the same, and except where the person is a sworn public officer, and makes the return in official capacity, it shall be verified by oath.
34.550 Warrant in case of refusal or neglect to obey writ. If the person upon whom the writ was duly served refuses or neglects to obey the same by producing the party named in the writ and making a full and explicit return thereto within the time required, and no sufficient excuse is shown therefor, the court or judge before whom the writ was made returnable shall, upon due proof of the service thereof, forthwith issue a warrant against such person, directed to any sheriff in this state, commanding the sheriff forthwith to apprehend such person and bring the person immediately before such court or judge; and on the person being so brought, the person shall be committed to close custody in the jail of the county in which such judge shall be until the person makes return to the writ and complies with any order made in relation to the party for whose relief the writ was issued.
34.560 Failure of sheriff to return writ. If a sheriff neglects to return the writ, the warrant may be directed to any other person to be designated therein, who shall have full power to execute the same, and such sheriff, upon being brought up, may be committed to the jail of any county other than the county over which the sheriff has jurisdiction. [Amended by 1965 c.221 §12; 1987 c.158 §6]
34.570 Precept commanding bringing of prisoner. The court or judge issuing the warrant may also, at the same time or afterwards, issue a precept to the person to whom the warrant is directed, commanding the person to bring forthwith before such court or judge the party for whose benefit the writ was allowed, who shall thereafter remain in the custody of such person until discharged or remanded.
34.580 Inquiry into cause of imprisonment. The court or judge before whom the party is brought on the writ shall, immediately after the return thereof, proceed to examine into the facts contained in the return, and into the cause of the imprisonment or restraint of such party.
34.590 Discharge when no legal cause for restraint is shown. If no legal cause is shown for the imprisonment or restraint, or for the continuation thereof, the court or judge shall discharge such party from the custody or restraint under which the person is held.
34.600 When party to be remanded. It shall be the duty of the court or judge forthwith to remand such party if it appears that the party is legally detained in custody, either:
(1) By virtue of process issued by any court, or judge or commissioner or any other officer thereof, of the United States, in a case where such court, or judge or officer thereof, has exclusive jurisdiction; or,
(2) By virtue of the judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree; or,
(3) For any contempt, specially and plainly charged in the commitment, by some court, officer or body having authority to commit for the contempt so charged; and,
(4) That the time during which such party may legally be detained has not expired.
34.610 Grounds for discharge of prisoner in custody under order or civil process. If it appears on the return that the prisoner is in custody by virtue of an order or civil process of any court legally constituted, or issued by an officer in the course of judicial proceedings before the officer, authorized by law, such prisoner shall be discharged only if one of the following cases exists:
(1) The jurisdiction of the court or officer has been exceeded, either as to matter, place, sum or person.
(2) The original imprisonment was lawful, yet by some act, omission or event which has taken place afterwards, the party has become entitled to be discharged.
(3) The order or process is defective in some matter of substance required by law, rendering the same void.
(4) The order or process, though in proper form, has been issued in a case not allowed by law.
(5) The person having the custody of the prisoner under such order or process is not the person empowered by law to detain the prisoner.
(6) The order or process is not authorized by any judgment or decree of any court, nor by any provision of law.
34.620 Inquiry into legality of certain judgments and process not permitted. No court or judge, on the return of a writ of habeas corpus, has power to inquire into the legality or justice of any order, judgment or process specified in ORS 34.330, nor into the justice, propriety or legality of any commitment for a contempt made by a court, officer or body, according to law, and charged in such commitment, as provided by law.
34.630 Proceedings where commitment for criminal offense is legal, or party probably is guilty. If it appears that the party has legally been committed for a criminal offense, or if the party appears by the testimony offered with the return, or upon the hearing thereof, probably to be guilty of such offense, although the commitment is irregular, the party shall forthwith be remanded to the custody or placed under the restraint from which the party was taken, if the officer or person under whose custody or restraint the party was, is legally entitled thereto; if not so entitled, the party shall be committed to the custody of the officer or person so entitled.
34.640 Custody of party pending proceedings. Until judgment is given upon the return, the party may either be committed to the custody of the sheriff of the county, or placed in such care or custody as age and other circumstances may require.
34.650 Notice to third persons. When it appears from the return that the party named therein is in custody on an order or process under which another person has an interest in continuing imprisonment or restraint of the party, no order shall be made for discharge of the party until it shall appear that the party so interested, or the attorney of the party so interested has had notice of the time and place at which the writ has been made returnable.
34.660 Notice to district attorney. When it appears from the return that the party is imprisoned or restrained on a criminal accusation, the court or judge shall make no order for the discharge of the party until notice of the return is given to the district attorney of the county where the party is imprisoned or restrained.
34.670 Replication following return; hearing. The plaintiff in the proceeding, on the return of the writ, may, by replication, signed as in an action, controvert any of the material facts set forth in the return, or the plaintiff may allege therein any fact to show, either that imprisonment or restraint of the plaintiff is unlawful, or that the plaintiff is entitled to discharge; and thereupon the court or judge shall proceed in a summary way to hear such evidence as may be produced in support of or against the imprisonment or restraint, and to dispose of the party as the law and justice of the case may require. [Amended by 1979 c.284 §73]
34.680 Motion to deny petition; motion to strike; controverting replication; time to plead; construction and effect of pleadings. (1) The defendant may, before the writ issues, move to deny the petition on the grounds that the petition fails to state a claim for habeas corpus relief. The defendant may, at any time after the writ issues, move to dismiss the writ on the grounds that the pleadings, including the petition, the return, the replication, if any, and any supporting evidence, demonstrate that plaintiff has failed to state or establish a claim for habeas corpus relief.
(2) The plaintiff may move to strike the return or any allegation or defense in the return. The defendant may move to strike the replication or any new matter in the replication, or by proof controvert the same, as upon a direct denial or avoidance.
(3) The return and replication shall be made within such time as the court or judge shall direct, and the petition, return and replication shall be construed and have the same effect as in an action. [Amended by 1979 c.284 §74; 1991 c.884 §8]
34.690 Requiring production of person after writ issued. The court or judge before whom the writ is returnable may, before final decision, issue a precept to the officer or other person to whom the writ is directed, requiring the production of the person. [Amended by 1991 c.884 §9]
34.695 Conduct of hearing. If the matter proceeds to an evidentiary hearing, as described in ORS 34.670, the court shall decide the issues raised in the pleadings and may receive proof by affidavits, depositions, oral testimony or other competent evidence. [1991 c.884 §12]
34.700 Judgment; liability for obedience to judgment; payment of attorney fees. (1) If it appears that the party detained is imprisoned or restrained illegally, judgment shall be given that the party be discharged forthwith; otherwise, judgment shall be given that the proceeding be dismissed and the party remanded. No officer or other person is liable to any action or proceeding for obeying such judgment of discharge.
(2) The court shall include in the judgment an order that the defendant pay the attorney fees incurred by the petition, not to exceed $100, if:
(a) The court enters a judgment requiring that the plaintiff be discharged; and
(b) The court finds that the allegations or defenses in the return were frivolous. [Amended by 1995 c.657 §9; 1999 c.114 §6]
34.710 Appeal; conclusiveness of judgment. Any party to a proceeding by habeas corpus, including the state when the district attorney appears therein, may appeal from the judgment of the court refusing to allow such writ or any final judgment therein, either in term time or vacation, in like manner and with like effect as in an action. No question once finally determined upon a proceeding by habeas corpus shall be reexamined upon another proceeding of the same kind.
34.712 Summary affirmation of judgment on appeal. In reviewing the judgment of any court under ORS 34.310 to 34.730, the Court of Appeals, on its own motion or on the motion of the defendant, may summarily affirm, without oral argument, the judgment after submission of the appellant’s brief and without submission of the defendant’s brief if the court finds that no substantial question of law is presented by the appeal. Notwithstanding ORS 2.570, the Chief Judge of the Court of Appeals may deny or, if the plaintiff does not oppose the motion, grant a defendant’s motion for summary affirmation. A dismissal of appeal under this section constitutes a decision upon the merits of the appeal. [1995 c.294 §3; 1999 c.114 §7]
34.720 Imprisonment after discharge. No person who has been finally discharged upon a proceeding by habeas corpus shall again be imprisoned, restrained or kept in custody for the same cause; but it is not to be deemed the same cause if:
(1) The person has been discharged from a commitment on a criminal charge, and afterwards is committed for the same offense by the legal order or process of the court wherein the person is bound by a release agreement or has deposited security, or in which the person is indicted or convicted for the same offense; or
(2) After a judgment of discharge for a defect of evidence or for a material defect in the commitment, in a criminal case, the party again is arrested on sufficient evidence, and committed by legal process for the same offense; or
(3) In a civil action or suit, the party has been discharged for illegality in the judgment, decree or process, and afterwards is imprisoned for the same cause of action or suit; or
(4) In a civil action or suit, the person has been discharged from commitment on a writ of arrest, and afterwards is committed on execution, in the same action or suit, or on a writ of arrest in another action or suit, after the dismissal of the first one. [Amended by 1973 c.836 §325]
34.730 Forfeiture for refusing copy of order or process. Any officer or other person refusing to deliver a copy of any order, warrant, process or other authority by which the officer or person detains any person, to anyone who demands a copy, and tenders the fees therefor, shall forfeit $200 to the person so detained.
AMENDMENT OF PETITION OR ACTION TO SEEK PROPER REMEDY
34.740 Amendment of petition or action against public body when wrong remedy sought; effect of amendment on time limitations; attorney fees. (1) A circuit court shall allow a person to amend a petition or action in the manner provided by this section if:
(a) The person seeks relief against a public body, as defined in ORS 192.410;
(b) The person incorrectly filed a petition for a writ of review, a petition for a writ of mandamus or an action for declaratory judgment; and
(c) The correct remedy of the person is a petition for a writ of review, a petition for a writ of mandamus or an action for declaratory judgment.
(2) If a petition or action is amended under this section, the petition or action is not subject to dismissal by reason of not having been commenced within the time otherwise allowed by law if the reason that the person filed the wrong petition or action was either:
(a) The person relied on a reasonable interpretation of the law relating to the correct remedy; or
(b) The public body that is the respondent or defendant in the proceeding gave misleading information to the person about the proper remedy, the person relied in good faith on the information provided by the public body and by reason of that reliance the person sought the wrong remedy.
(3) A circuit court shall order a public body, as defined in ORS 192.410, to pay reasonable attorney fees incurred by any person in filing a petition for a writ of review, a petition for a writ of mandamus or an action for declaratory judgment seeking relief from the public body if:
(a) The court determines that the person has filed the wrong petition or action, and the person subsequently amends the pleading in the manner provided by subsection (1) of this section;
(b) The public body that is the respondent or defendant in the proceeding gave information to the person with the intent to mislead the person as to the proper remedy or gave information to the person, with a reckless disregard for the truth or falsity of the information, about the proper remedy; and
(c) The person relied in good faith on the information provided by the public body, and by reason of that reliance the person sought the wrong remedy. [2001 c.561 §2]
Note: Section 3, chapter 561, Oregon Laws 2001, provides:
Sec. 3. Sections 1 [14.165] and 2 [34.740] of this 2001 Act apply only to actions or other proceedings filed on or after the effective date of this 2001 Act [January 1, 2002]. [2001 c.561 §3]
Note: 34.740 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 34 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
CERTAIN WRITS ABOLISHED
34.810 Scire facias and quo warranto. The writ of scire facias, the writ of quo warranto, and proceedings by information in the nature of quo warranto are abolished, and the remedies heretofore obtainable under those forms may be obtained by action in the mode prescribed in ORS 30.510 to 30.640.
34.820 [Repealed 1981 c.898 §53]