Chapter 34

34.010 to 34.100

NOTES OF DECISIONS

The circuit court lacked jurisdiction to issue a writ of review concerning district court order denying defendant’s motion for leave to withdraw his guilty plea in a criminal proceeding. Humphreys v. State of Oregon, 19 Or App 630, 528 P2d 1094 (1974)

Court may join two writs that arise out of same transaction. Bienz v. City of Dayton, 29 Or App 761, 566 P2d 904 (1977), Sup Ct review denied

Approval of tentative plan under subdivision ordinance is final order reviewable in writ of review proceeding. Bienz v. City of Dayton, 29 Or App 761, 566 P2d 904 (1977), Sup Ct review denied

Order which is not appealable is not subject to review by writ of review. Botteron v. Carter, 33 Or App 417, 576 P2d 828 (1978)

Where rights and responsibilities of management employe at community college were controlled by terms of his contract and college’s Administrative Policy Handbook, remedy for termination was limited to writ of review, since district board’s termination decision was “decision or determination” under ORS 34.020 in exercise of its authority under ORS 341.290. Cole v. Chemeketa Comm. College, 58 Or App 77, 647 P2d 935 (1982), Sup Ct review denied

In absence of statutory basis by which judge could compel nonparty to criminal case to grant access to nonparty’s home to attorneys for criminal defendant, peremptory writ issued. State ex rel Beach v. Norblad, 308 Or 429, 781 P2d 349 (1989)

Availability of writ of review does not preclude action based on common law tort of wrongful discharge. Shockey v. City of Portland, 313 Or 414, 837 P2d 505 (1992)

Where petition for writ of review has been timely filed but petitioner has not taken additional steps necessary to obtain and serve writ, court retains jurisdiction but lacks authority to proceed further on petition. Spivak v. Marriott, 213 Or App 1, 159 P3d 1192 (2007)

Final decision by inferior tribunal precludes related claim if: 1) claimant was party to tribunal proceeding that adjudicated effect of facts common to related claim; and 2) related claim would involve reviewing correctness of tribunal decision under ORS 34.040 standards. Spivak v. Marriott, 213 Or App 1, 159 P3d 1192 (2007)

LAW REVIEW CITATIONS: 10 WLJ 95, 96 (1973); 10 WLJ 359, 374-384 (1974); 54 OLR 396-401 (1975); 15 EL 243 (1985)

34.010

NOTES OF DECISIONS

Hearing requirement of ORS 342.835 imposes on district fair dismissal board duty to consider evidence offered to contest reasons for nonrenewal and to make determination or decision within meaning of this section that can be reviewed under writ of review. Henthorn v. Grand Prairie School Dist., 287 Or 683, 601 P2d 1243 (1979)

34.020

NOTES OF DECISIONS

District court is “inferior court” within meaning of this section, and writ of review is available to review its decisions. Hoffman v. French, 287 Or 323, 599 P2d 452 (1979)

School board’s nonrenewal of probationary teacher under ORS 342.835 was proceeding in which board was required to make “decision or determination” within meaning of this section. Henthorn v. Grand Prairie School Dist., 287 Or 683, 601 P2d 1243 (1979)

Denial of claim for tax refund by board of county commissioners was “process or proceeding” under this section and was reviewable under writ of review. Rosboro Lumber Co. v. Heine, 289 Or 909, 618 P2d 960 (1980)

Where rights and responsibilities of management employe at community college were controlled by terms of his contract and college’s Administrative Policy Handbook, decision to terminate employe by district board was “decision or determination” within meaning of this section. Cole v. Chemeketa Comm. College, 58 Or App 77, 647 P2d 935 (1982), Sup Ct review denied

Circuit court lacked jurisdiction over writ of review under this section because local government’s decisions that plaintiff failed to establish nonconforming use and vested right to nonconforming use were “land use decisions,” reviewable exclusively by the Land Use Board of Appeals. Turner v. Lane County, 63 Or App 611, 665 P2d 370 (1983)

When defendant city had adopted resolution providing that three percent “shall be computed on and added to the cumulative assessable costs of construction, engineering, advertising and warrant interest to arrive at a total assessable amount,” ordinance did nothing that directly affected plaintiff; only subsequent assessment ordinances directly affected plaintiff, and those could be attacked by writ of review. Diversified Properties, Inc. v. City of Springfield, 86 Or App 325, 738 P2d 1010 (1987), Sup Ct review denied

Mayor’s imposition of sanction on police officer for violating police bureau order was quasi-judicial act, and trial court had writ of review jurisdiction. Koch v. City of Portland, 306 Or 444, 760 P2d 252 (1988)

Under this section writ of review is exclusive method of seeking judicial review of police chief’s order which terminated employment of two police officers. Decker v. Clark, 95 Or App 320, 769 P2d 228 (1989), Sup Ct review denied

Where action seeks to enforce rights arising from terms of contract rather than from extra-contractual source, action may be brought in contract even though remedy might otherwise be available through writ of review. Cloyd v. Lebanon School District 16C, 161 Or App 572, 985 P2d 232 (1999)

Plaintiff’s pursuit of contractually conferred administrative remedy does not prevent plaintiff from subsequently bringing suit based on contract rather than pursuing writ of review. Gibson v. Douglas County, 197 Or App 204, 106 P3d 151 (2005)

34.030

NOTES OF DECISIONS

This section relates to venue and is not jurisdictional. Dietz v. Ott, 8 Or App 634, 495 P2d 1212 (1972)

A motion to quash is the proper means of challenging a writ not filed within the time limit imposed by this section. Meury v. Jarrell, 16 Or App 239, 517 P2d 1221 (1974), aff’d 269 Or 606, 525 P2d 1286 (1974)

An amended petition under this section which states sufficient facts can be filed after the 60-day time limit has expired, so long as the original filing was within that time limit. Meury v. Jarrell, 16 Or App 239, 517 P2d 1221 (1974), aff’d269 Or 606, 525 P2d 1286 (1974); NW Environmental Defense Center v. The City Council for the City of Portland, 20 Or App 234, 531 P2d 284 (1975), Sup Ct review denied

Only the entry of the formal written judgment, or in the case of a zoning change, the adoption of the ordinance, begins the 60-day limitation period. Duddles v. City Council of West Linn, 21 Or App 310, 535 P2d 583 (1975)

Date of “decision or determination” which had effect of beginning period for appeal under this section was when city council voted and announced its decision to deny zone change and not date of entry of approved minutes of meeting. Hitchcock v. McMinnville City Council, 47 Or App 897, 615 P2d 409 (1980), aff’don other grounds, 291 Or 404, 631 P2d 777 (1981)

Where no vote was taken, or decision made at public hearing on conditional use permit application, and county’s procedures provided for entry of the final order in county journal, date of the journal entry was controlling date for determining the 60-day statutory period within which to commence writ of review action. Lyford v. Board of Commissioners for Benton County/Pacific Northwest Bell Telephone Company, 59 Or App 585, 651 P2d 1355 (1982), Sup Ct review denied

Petition for writ of review is not sufficient where petition contains merely conclusory allegations of error, does not inform court of evidence to be addressed and does not provide sufficient facts to enable court to determine whether to issue writ. Gruetzke v. City of Gresham, 108 Or App 325, 815 P2d 228 (1991), Sup Ct review denied

Court could not obtain jurisdiction over time-barred writ of review by permitting amendment of complaint for declaratory judgment to include petition and relating petition back to date complaint was filed. Shipp v. Multnomah County, 133 Or App 583, 891 P2d 1345 (1995), Sup Ct review denied

LAW REVIEW CITATIONS: 10 WLJ 371 (1974)

34.040

NOTES OF DECISIONS

In general

Party who remonstrated before inferior tribunal has prima facie standing to initiate writ of review proceeding to challenge decision of the inferior tribunal; respondents then have burden of raising objection of insufficient standing. Duddles v. City Council of West Linn, 21 Or App 310, 535 P2d 583 (1975)

Once raised, resolution of objection of insufficient standing requires evidentiary hearing by circuit court in which petitioner bears burden of proving standing. Duddles v. City Council of West Linn, 21 Or App 310, 535 P2d 583 (1975)

Property owner in reasonably close proximity, such as within sight or sound of proposed use of land, should ordinarily have standing to challenge a zoning decision. Duddles v. City Council of West Linn, 21 Or App 310, 535 P2d 583 (1975)

Under this section and ORS 215.422, community organization lacked standing to obtain review under representational theory where it had shown no particular injury to interests of members or itself, except in respect to one member who could not establish injury of some substantial right, nor could organization obtain standing under a de jure theory where organization was an unofficially formed group without defined membership. Clark v. Dagg, 38 Or App 71, 588 P2d 1298 (1979), Sup Ct review denied

Review for substantial evidence based on whole record pursuant to writ is identical in manner and effect to review applicable in Administrative Procedures Act and Land Use Board of Appeals settings. Johnson v. Civil Service Board of Portland, 161 Or App 489, 985 P2d 854 (1999), modified 162 Or App 527, 986 P2d 666 (1999)

In assessing whether hearsay evidence constitutes substantial evidence, case-specific inquiry is necessary to determine circumstances that include: 1) alternatives to relying on hearsay; 2) importance of hearsay to outcome; 3) existence of supporting or opposing evidence; 4) impact of inability to cross-examine; and 5) consequences of decision. Johnson v. Civil Service Board of Portland, 161 Or App 489, 985 P2d 854 (1999), modified 162 Or App 527, 986 P2d 666 (1999)

Denial of statutory right affecting legal status of petitioner’s own property constitutes cognizable injury or practical effect creating justiciable controversy. Orr v. East Valley Water District, 203 Or App 430, 125 P3d 834 (2005), Sup Ct review denied

Final decision by inferior tribunal precludes related claim if: 1) claimant was party to tribunal proceeding that adjudicated effect of facts common to related claim; and 2) related claim would involve reviewing correctness of tribunal decision under review standards of this section. Spivak v. Marriott, 213 Or App 1, 159 P3d 1192 (2007)

Reviewable decisions and proceedings

The writ of review procedure is normally the proper method for securing judicial review of the quasi-judicial decision of the local governing body. Brooks v. Dierker, 275 Or 619, 552 P2d 533 (1976)

Provisions authorizing appeal of boundary change order under writ of review were impliedly repealed by subsequent statutory amendment excluding state agencies from writ of review procedures. League of Women Voters v. Lane County Boundary Commission, 32 Or App 53, 573 P2d 1255 (1978), Sup Ct review denied

City Council’s alleged failure to hold quasi-judicial due process hearing before discharging police chief was not cognizable in writ of review proceeding. Graziano v. City Council of Canby, 35 Or App 271, 581 P2d 552 (1978), Sup Ct review denied

Distinction between whether a decision is judicial/quasi-judicial, and thus cognizable in writ of review proceedings, or whether such decision is legislative and administrative, and thus subject to judicial review by some other means (such as declaratory judgment, suit in equity or action at law) is whether party seeks limited judicial appellate review of record before the inferior tribunal, or instead seeks aid of a record making and fact finding court. Graziano v. City Council of Canby, 35 Or App 271, 581 P2d 552 (1978), Sup Ct review denied

Board of county commissioners’ action on application for comprehensive plan change was deemed denial for purposes of review where two of five county commissioners abstained, and vote of remaining commissioners was 2 to 1 in favor of application, but county charter required affirmative vote by three commissioners for any action. Eastgate Theater v. Bd. of County Comm’rs, 37 Or App 745, 588 P2d 640 (1978)

Since statutory scheme relating to road vacation ([former] ORS 368.565 to 368.580) sufficiently channels discretion through fact-finding procedures and broadly stated criteria, decisions under it qualify as quasi-judicial functions and may be examined under writ of review procedures. Strawberry Hill 4-Wheelers v. Benton Co. Bd. of Comm., 287 Or 591, 601 P2d 769 (1979)

School board’s nonrenewal of probationary teacher under ORS 342.835 was “quasi-judicial” function subject to writ of review. Henthorn v. Grand Prairie School Dist., 287 Or 683, 601 P2d 1243 (1979)

City council’s decision to rezone parcel from lower to higher density single-family residential was quasi-judicial and thus reviewable by writ of review. Neuberger v. City of Portland, 288 Or 155, 603 P2d 771 (1979)

City council’s removal of plaintiff as city attorney was quasi-judicial proceeding, so appeal to circuit court was by way of writ of review and not declaratory judgment. Jordan v. City Council of Lake Oswego, 49 Or App 31, 618 P2d 1298 (1980), Sup Ct review denied

City council’s decision to sell publicly owned property pursuant to ORS 271.310 was legislative, as it did not entail an adjudicatory application of pre-existing criteria to concrete facts and therefore was not judicially reviewable by writ of review. Lane v. City of Prineville, 49 Or App 385, 619 P2d 940 (1980)

Decision by county sewerage agency to charge sewer connection fee to school district for expansion of its existing maintenance facility was quasi-judicial determination and reviewable exclusively by writ of review. School Dist. No. 48, Wash. Co. v. Unified Sewerage Agency, 51 Or App 795, 627 P2d 485 (1981)

Final decision by director of port district to deny relocation expenses made pursuant to [former] ORS 281.080 was reviewable under this section and trial court had no jurisdiction to hear action in contract. Spada v. Port of Portland, 55 Or App 148, 637 P2d 229 (1981)

County’s act of retaining interest on mineral lease income is ministerial rather that quasi-judicial and therefore, declaratory relief was proper remedy. State ex rel School Dist. 13 v. Columbia County, 66 Or App 237, 674 P2d 608 (1983), Sup Ct review denied

On remand, Court of Appeals held that substantial evidence, for purpose of this section, means such evidence as reasonable minds might accept as adequate to support conclusion. Caffey v. Lane County, 75 Or App 399, 706 P2d 590 (1985)

Judicial or quasi-judicial function involves or requires adjudicatory process which typically results in decision, applies pre-existing criteria to concrete facts and is directed at closely circumscribed factual situation or relatively small number of persons. Koch v. City of Portland, 306 Or 444, 760 P2d 252 (1988)

In addition to considering presence or absence of procedural requirements, determination of whether policymaking process is quasi-judicial or legislative in nature must at least include balancing factors of: 1) whether process, once begun, calls for reaching decision confined by preexisting criteria rather than discretion; 2) extent to which decision maker applies preexisting criteria to concrete facts; and 3) extent to which decision is directed at closely circumscribed factual situation or relatively small number of persons. Hood River Valley Residents’ Committee, Inc. v. Board of County Commissioners of Hood River County, 193 Or App 485, 91 P3d 748 (2004)

Procedure for writ of review

The writ should issue only if the district court error is disclosed on the record properly before the circuit court. Myers v. Carter, and Marquam Inv. Corp., 27 Or App 351, 556 P2d 703 (1976), Sup Ct review denied

Questions of fact

Where substantial conflicts of evidence were present in zone change case before city council and council findings, adopted after issuance of order, did not suggest deliberate ratification of order, these findings were inadequate. Heilman v. City of Roseburg, 39 Or App 71, 591 P2d 390 (1979)

Findings which address only one goal of comprehensive plan are adequate to support denial of zone change if goal provides substantial reason for denial. Heilman v. City of Roseburg, 39 Or App 71, 591 P2d 390 (1979)

City council is not bound by decision of planning commission even when it is supported by substantial evidence. Heilman v. City of Roseburg, 39 Or App 71, 591 P2d 390 (1979)

Board of county commissioner’s order granting minor partition of agricultural land based upon finding that land was unsuitable for production of farm crops was not supported by substantial evidence when evidence consisted of six photographs unaccompanied by testimony and two soil maps of insufficient detail to distinguish property at issue. Miles v. Bd. of Comm. of Clackamas County, 48 Or App 951, 618 P2d 986 (1980)

LAW REVIEW CITATIONS: 10 WLJ 371 (1974); 6 EL 173 (1975); 55 OLR 123 (1976)

34.050

NOTES OF DECISIONS

Plaintiff’s failure to tender undertaking suspends authority of court to proceed with issuance of writ, but does not divest court of jurisdiction over dispute. Magar v. City of Portland, 179 Or App 104, 39 P3d 234 (2002)

34.080

NOTES OF DECISIONS

Failure to serve the opposite party is a jurisdictional defect. NW Environmental Defense Center v. The City Council for the City of Portland, 20 Or App 234, 531 P2d 284 (1975), Sup Ct review denied

A motion to quash does not deprive the court of its discretionary power to extend the time for return of a writ of review. NW Environmental Defense Center v. The City Council for the City of Portland, 20 Or App 234, 531 P2d 284 (1975), Sup Ct review denied

In writ of review proceeding involving land use decision, requirement of service on “opposite party” means service on the owner of the subject property. Shanks v. Washington County, 22 Or App 426, 539 P2d 1111 (1975)

Petitioners in a road vacation proceeding before board of county commissioners were opposite parties who had to be served in a writ of review action challenging a vacation order. Thompson v. Bd. of County Commrs. of Columbia County, 29 Or App 813, 564 P2d 1376 (1977), Sup Ct review denied

Where party appeared at hearings of zoning board of appeals and city council assessment panel in person and by an attorney, party was an “opposite party” under this section and failure to serve him in writ of review proceeding deprived trial court of jurisdiction. A & X, Inc. v. Common Council of City of Eugene, 41 Or App 171, 597 P2d 849 (1979), Sup Ct review denied

34.100

NOTES OF DECISIONS

When an administrative tribunal properly exercises its jurisdiction and employes correct procedure in arriving at its factual determinations, court is not empowered, under a writ of review, to set aside those determinations if there is any evidence within the record to support the decisions. Stueve v. Everett, 11 Or App 18, 500 P2d 491 (1972), Sup Ct review denied

Plaintiff must show more than reversible decision before this section authorizes restitution award to plaintiff. State ex rel Parmenter v. Wallowa County Court, 114 Or App 362, 835 P2d 152 (1992), Sup Ct review denied

Reviewing court may remand matter to inferior court, officer or tribunal and direct inferior body to proceed according to reviewing court’s decision. Home Builders Assn. of Metropolitan Portland v. City of West Linn, 204 Or App 655, 131 P3d 805 (2006), Sup Ct review denied

34.102

(formerly 19.230)

NOTES OF DECISIONS

“Not reviewable as a land use decision. . .as defined in ORS 197.015” means that subject matter of controversy is outside statutory definition of term. Owen Development Group, Inc. v. City of Gearhart, 111 Or App 476, 826 P2d 1016 (1992)

Under statutes in effect in 1989, this section permitted trial court to review local government decision about partition because ORS 197.015 specified that decision was not land use decision but 1991 legislation eliminated such specification. State ex rel Parmenter v. Wallowa County Court, 114 Or App 362, 835 P2d 152 (1992), Sup Ct review denied

Principle that writ of review provides exclusive remedy does not prevent bringing inverse condemnation claim against county based on quasi-judicial decision. Butchart v. Baker County, 214 Or App 61, 166 P3d 537 (2007)

34.110

NOTES OF DECISIONS

In general

Mandamus is not proper remedy to test constitutionality of treatment afforded inmate of penal institution. Brooks v. Cupp, 6 Or App 539, 488 P2d 804 (1971), Sup Ct review denied

When public official has acted in way that violates some statute, rule or ordinance, he has implied legal duty to correct his error, and mandamus is appropriate remedy to compel him to do so. Parks v. Bd. of County Commr. of Tillamook County, 11 Or App 177, 501 P2d 85 (1972), Sup Ct review denied

Demand that duty be performed is generally required when interests involved are private, but is not necessarily required when interests involved are public. Parks v. Bd. of County Commr. of Tillamook County, 11 Or App 177, 501 P2d 85 (1972), Sup Ct review denied

Mere pendency in Supreme Court of mandamus proceeding subsequently commenced does not of itself stay trial court proceedings unless Supreme Court orders stay or grants other affirmative relief effecting such result. Lee v. Brown, 264 Or 341, 505 P2d 924 (1973), cert. denied, 414 US 830

In mandamus proceeding parties should proceed according to the rule that a demurrer to the alternative writ admits all well-pleaded facts in the writ. State ex rel Ware v. Hieber, 267 Or 124, 515 P2d 721 (1973)

A legal obligation to perform the act which is sought to be compelled must exist on the part of the defendant. Wilber v. Wheeler, 273 Or 855, 543 P2d 1052 (1975)

The writ of mandamus compelling the Director of Personnel of Lane County to certify as an employe an applicant known to lack certain minimum qualifications was improperly issued. Byland and Muir v. Wold, 27 Or App 715, 557 P2d 695 (1976)

Under “limited jurisdiction” test district court is “inferior court” for purposes of mandamus, and therefore circuit court could issue writs of mandamus to it. Mattila v. Mason 287 Or 235, 598 P2d 675 (1979)

Where, at time of their civil service examination, plaintiffs had no legal right to prevent application of veteran’s preference points to their entrance examination scores, they could not compel city personnel director, through mandamus, to re-apply such points to their promotional examinations since mandamus remedy is to be applied only when legal right has been established. Brown v. Dearborn, 52 Or App 237, 628 P2d 405 (1981), Sup Ct review denied

Petitioners were precluded from obtaining mandamus because they had remedy under APA even if they did not prevail in their attempt to obtain it. Mongelli v. Oregon Life and Health Guaranty, 85 Or App 518, 737 P2d 633 (1987); Scovell v. Goldschmidt, 106 Or App 111, 806 P2d 181 (1991), Sup Ct review denied

Criminal defendant’s petition for peremptory writ of mandamus, which sought discontinued use of pretrial agreement and disallowance of trial in defendant’s absence, should have been denied because defendant could seek relief through direct appeal and thus had plain, speedy and adequate remedy at law. State ex rel Young v. Keys, 98 Or App 69, 778 P2d 500 (1989)

Workers’ compensation referee’s rulings on claims, which allegedly exceeded referee’s jurisdiction, was not redressable by mandamus because exclusive review of order was provided in Workers’ Compensation Law and constituted plain, speedy and adequate remedy. SAIF v. Johnson, 99 Or App 64, 781 P2d 374 (1989), Sup Ct review denied

ORCP 29 procedures and requirements for joinder do not apply in mandamus proceeding. State ex rel Dewberry v. Kulongoski, 220 Or App 345, 187 P3d 220 (2008), aff’d 346 Or 260, 210 P3d 884 (2009)

Judicial acts and functions

District court’s decision whether to require disclosure of documents was judicial, not ministerial, decision and thus not subject to challenge through mandamus proceeding. State ex rel City of Portland v. Keys, 96 Or App 669, 773 P2d 1347 (1989)

When remedy at law is sufficient

Writ of mandamus was issued when right to be vindicated was a public as well as a private one despite fact that petitioner failed to avail himself of adequate and available remedy at law. McAlmond v. Myers, 262 Or 521, 500 P2d 457 (1972)

Right to judicial review of an administrative hearing was an adequate remedy at law, so mandamus would not be to quash service in that hearing. Phillips v. Layman, 15 Or App 107, 514 P2d 1352 (1973), Sup Ct review denied

Where relators alleged that denial of pretrial hearing prejudiced them in that: (1) they would be denied pretrial discovery of testimony of prosecution witness who refused to be interviewed and (2) denied pretrial opportunity to determine whether probable cause to require them to answer charge existed was not kind of prejudice which would render direct appeal inadequate remedy. State ex rel Automotive Emporium v. Murchison, 289 Or 265, 611 P2d 1169 (1980)

Where defendant had an adequate remedy in the ordinary course of the law by way of a request for transcript under ORS 138.500 (2) followed by a motion to supplement the record under ORAP 6.15, mandamus would not lie to compel trial court to grant defendant’s request for a transcript. State v. Montgomery, 294 Or 417, 657 P2d 668 (1983)

Mandamus relief is not available to putative father who challenges denial of pretrial motion for appointment and compensation of experts to conduct blood tests because direct appeal of adverse judgment, if any, is “plain, speedy and adequate remedy” at law. State ex rel Le Vasseur v. Merten, 297 Or 577, 686 P2d 366 (1984)

Where ability to obtain adjudication on merits is entirely within control of adverse party, plaintiff does not have plain, speedy and adequate remedy in ordinary course of law. State ex rel Dewberry v. Kulongoski, 220 Or App 345, 187 P3d 220 (2008), aff’d346 Or 260, 210 P3d 884 (2009)

LAW REVIEW CITATIONS: 15 EL 245 (1985)

34.120

NOTES OF DECISIONS

Correction: The permanent edition citation for Nielson v. Bryson should be 257 Or 179, 477 P2d 714 (1970).

34.130

LAW REVIEW CITATIONS: 2 EL 326 (1972)

34.160

NOTES OF DECISIONS

Where intervenor and county put at issue propriety of issuing conditional use permit and county had not clearly withdrawn from litigation, court erred in issuing peremptory writ without conducting hearing regarding previously issued alternative writ. Wallace v. Board of County Commissioners of Klamath County, 105 Or App 364, 804 P2d 1220 (1991)

34.210

NOTES OF DECISIONS

In action for writ of mandamus against a city which included request for damages, plaintiff was not entitled to damage award, even though writ was granted when it did not establish necessary elements of cause of action. State ex rel Kashmir Corp. v. Schmidt, 49 Or App 271, 619 P2d 918 (1980), aff’d 291 Or 603, 633 P2d 791 (1981)

Statute is exclusive basis for award of attorney fees in mandamus action. State ex rel Pend-Air Citizen’s Committee v. City of Pendleton, 145 Or App 236, 929 P2d 1044 (1996), Sup Ct review denied

Factors to be considered in determining whether award of attorney fees is proper include whether plaintiff’s success vindicates rights of others with regard to broad-based interest, complexity of legal issue involved and whether agency position was reasonable. State ex rel Pend-Air Citizen’s Committee v. City of Pendleton, 145 Or App 236, 929 P2d 1044 (1996), Sup Ct review denied

Limitation on joining damage claim with mandamus action supersedes general rule of ORCP 24A permitting joinder of claims. Holman v. City of Warrenton, 242 F. Supp. 2d 791 (D. Or. 2002)

34.310 to 34.730

NOTES OF DECISIONS

Availability of relief under writ of habeas corpus is not defeated by transfer of custody from one correctional facility to another while matter is pending. Clemman v. Wright, 109 Or App 325, 819 P2d 327 (1991); McGee v. Johnson, 161 Or App 384, 984 P2d 341 (1999)

LAW REVIEW CITATIONS: 14 WLJ 55 (1977)

34.310

NOTES OF DECISIONS

Despite abolition of “civil death,” writ of habeas corpusremains available where no other timely process is available to convicted prisoners for challenging unlawful imprisonment, unlawful restraint or other deprivation of rights requiring immediate judicial scrutiny. Penrod/Brown v. Cupp, 283 Or 21, 581 P2d 934 (1978)

Where diabetic inmate alleged deprivation of necessary diet and medical care, claim, which demonstrated need for immediate judicial intervention and to which there was no adequate and timely alternative available, could properly be brought by writ of habeas corpus. Mueller v. Cupp, 45 Or App 495, 608 P2d 1203 (1980)

Writ of habeas corpus was not available to juvenile petitioner to challenge her placement in Rosemont School on grounds that it violated [former] ORS 419.509 because petitioner had adequate alternative remedy through petition to juvenile court. Shrewsbury v. Larson, 52 Or App 81, 627 P2d 910 (1981), Sup Ct review denied

Where plaintiff’s replication alleges sufficient specific facts that conditions of confinement unnecessarily subject plaintiff to serious health hazards, claim for habeas corpus is supported and plaintiff has right to hearing regarding constitutional rights. Bedell v. Schiedler, 307 Or 562, 770 P2d 909 (1989); Waters v. Bunnell, 138 Or App 377, 909 P2d 214 (1996)

Where plaintiff, penitentiary inmate, alleged he had made several suicide attempts, he had requested to see psychiatrist on 15 to 20 occasions, but defendant had failed to provide any treatment, immediate judicial scrutiny was required and court erred in dismissing writ of habeas corpus. Fox v. Zenon, 106 Or App 37, 806 P2d 166 (1991)

Where alcoholism and mental illness alleged by plaintiff confined to penitentiary did not create risk of serious and immediate harm, immediate judicial scrutiny was not required, and court did not err when it dismissed writ of habeas corpus. Jones v. Maass, 106 Or App 42, 806 P2d 168 (1991), Sup Ct review denied

Plaintiffs who alleged they were denied psychiatric diagnosis and treatment while patients at Oregon State Hospital under jurisdiction of Psychiatric Security Review Board were not entitled to habeas corpus relief on ground that they might be released sooner than their original term if they were to receive that diagnosis and treatment. Bahrenfus v. Bachik, 106 Or App 46, 806 P2d 170 (1991), Sup Ct review denied

Plaintiff’s claim requesting court to order Department of Corrections to provide plaintiff with annual evaluations as entitled by Oregon Laws 1987, chapter 486 was insufficient for habeas corpus relief where plaintiff failed to allege need for immediate judicial scrutiny. Tyrrell v. Maass, 106 Or App 565, 808 P2d 732 (1991), Sup Ct review denied

Where inmate alleged serious medical consequences due to confiscation of orthopedic footwear, habeas corpus relief was justified. Voth v. Maass, 120 Or App 574, 852 P2d 969 (1993)

Absent showing that sanction requires immediate judicial scrutiny, habeas corpus is not available to address imposition of fine or extension of parole release date. Pham v. Thompson, 156 Or App 440, 965 P2d 482 (1998), Sup Ct review denied

Where initial parole board order extended incarceration portion of indeterminate sentence past date prisoner was entitled by statute to parole, issuance of superseding order after date prisoner was entitled to parole did not make prisoner’s challenge to initial order moot. Hamel v. Johnson, 330 Or 180, 998 P2d 661 (2000)

Habeas corpus is permissible means by which defendant charged with murder may challenge trial court’s decision to deny release. Rico-Villalobos v. Guisto, 339 Or 197, 118 P3d 246 (2005)

34.320

NOTES OF DECISIONS

Transfer of prisoner to another county does not divest circuit court in which petition was filed of jurisdiction over habeas corpus matter. McGee v. Johnson, 161 Or App 384, 984 P2d 341 (1999)

34.330

NOTES OF DECISIONS

Habeas corpus is a proper method of questioning the constitutionality of treatment accorded prisoners. Bekins v. Cupp, 274 Or 115, 545 P2d 861 (1976)

Where petitioner claims that post-conviction relief is unavailable and trial court’s dismissal of petition for writ of habeas corpus was error, question of whether issue could reasonably have been raised on direct appeal thereby barring petitioner from obtaining post-conviction relief must be litigated first. Twitty v. Maass, 95 Or App 715, 770 P2d 963 (1989), on reconsideration 96 Or App 631, 773 P2d 1336 (1989)

Prior to 1983, persons who were found to be insane were not convicted and therefore were not eligible for post-conviction relief; since 1983, post-conviction relief is clearly available to persons under PSRB’s jurisdiction because verdict of guilty except for insanity is conviction, and therefore habeas corpus is not available. Mueller v. Benning, 314 Or 615, 841 P2d 640 (1992)

Court is not required to convert defective habeas corpuspetition alleging post-conviction relief claim into petition for post-conviction relief. Perry v. Zenon, 127 Or App 682, 874 P2d 89 (1994)

34.355

NOTES OF DECISIONS

Imprisoned person must be permitted opportunity to explain why appointed counsel should be replaced. Combs v. Baldwin, 161 Or App 270, 984 P2d 366 (1999)

34.362

NOTES OF DECISIONS

Placement in prison Intensive Management Unit does not raise issues subject to writ of habeas corpus. Troxel v. Maass, 120 Or App 397, 853 P2d 294 (1993)

Allegation that petitioner was being subjected to ongoing and periodical assaults by guards met minimum requirements for habeas corpus jurisdiction. Schafer v. Maass, 122 Or App 518, 858 P2d 474 (1993)

Civil rights lawsuit for tort damages and injunctive relief is not adequate alternative remedy for petitioner alleging unconstitutional imprisonment or restraint of person. Barrett v. Belleque, 344 Or 91, 176 P3d 1272 (2008)

34.370

NOTES OF DECISIONS

Trial court erred by dismissing case after writ issued and before pleadings were filed. Bird v. Maass, 104 Or App 271, 800 P2d 792 (1990)

Consideration of factual materials submitted with defendant institution’s response was improper in determining legal sufficiency of petition. Billings v. Gates, 133 Or App 236, 890 P2d 995 (1995), aff’d on other grounds, 323 Or 167, 916 P2d 291 (1996)

Attorney fees are not available where writ is issued but proceeding is subsequently dismissed. Wagy v. Armenakis, 152 Or App 210, 953 P2d 428 (1998), Sup Ct review denied

34.610

NOTES OF DECISIONS

Petitioner was not entitled to release through writ of habeas corpus where facts did not show that fair trial was no longer possible so as to entitle her to dismissal of prosecution under ORS 135.747 or that trial court had not properly found that proof or presumption of guilt was evident or strong under ORS 135.240. Haynes v. Burks, 290 Or 75, 619 P2d 632 (1980)

If other requirements for habeas corpus relief are met, subconstitutional violation may support claim that continued imprisonment of inmate is unlawful. Colby v. Thompson, 183 Or App 311, 52 P3d 1058 (2002), Sup Ct review denied

34.620

NOTES OF DECISIONS

Under this section, contempt commitment was not made “according to law” where Oregon Tax Court committed defendant for failure to obey alternative writ of mandamus, but failed to comply with procedures required by [former] ORS 33.040. In re Westerfield, 285 Or 615, 592 P2d 549 (1979)

34.670

NOTES OF DECISIONS

Petitioner is not entitled to present evidence on petition for writ of habeas corpus unless pleadings make factual allegation sufficient to support the relief requested. Scott v. Cupp, 55 Or App 23, 637 P2d 173 (1981)

Allegations in replication did not constitute evidence, so hearing on whether evidence accompanying answer had been controverted was not required. McClintock v. Schiedler, 123 Or App 334, 859 P2d 580 (1993)

34.680

NOTES OF DECISIONS

Motion to strike is functional equivalent of demurrer. Lane v. Maass, 309 Or 671, 790 P2d 1137 (1990); Feller v. Wright, 103 Or App 575, 798 P2d 703 (1990)

Where motion to dismiss writ is for failure to state claim and motion is unsupported by evidentiary materials, court should treat motion as comparable to motion to dismiss under ORCP 21 rather than as motion for summary judgment. Dunn v. Hill, 211 Or App 590, 156 P3d 72 (2007)

LAW REVIEW CITATIONS: 73 OLR 785 (1994)

34.700

NOTES OF DECISIONS

Petition for writ did not allege type of harm redressable by habeas corpus relief and should have been dismissed on that basis. Miller v. Maass, 95 Or App 445, 769 P2d 788 (1989)

State Board of Parole and Post-Prison Supervision issuance of superseding release date order constitutes change in circumstances rendering challenge to earlier board order moot. Jones v. Thompson, 156 Or App 226, 968 P2d 380 (1998), Sup Ct review denied

34.710

NOTES OF DECISIONS

Where judgment indicates clear intent to reject plaintiff’s claims, trial court need not use any particular words to render judgment in habeas corpus case appealable. Lovelace v. Morrow, 186 Or App 719, 64 P3d 1201 (2003), Sup Ct review denied