ORS Chapter 34

Chapter 34 — Writs

2009 EDITION

WRITS

SPECIALACTIONS AND PROCEEDINGS

WRITOF REVIEW

34.010 Formerwrit of certiorari as writ of review

34.020 Whomay obtain review; intermediate orders reviewable

34.030 Jurisdictionto grant writ; petition for writ; time limit

34.040 Whenallowed

34.050 Plaintiff’sundertaking

34.060 Towhom directed; return

34.070 Stayof proceedings

34.080 Issuanceand service of writ

34.090 Orderfor further return

34.100 Powerof court on review; appeal

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

WRITOF MANDAMUS

(Generally)

34.105 Definitionsfor ORS 34.105 to 34.240

34.110 Whenand to whom writ issued

34.120 Courtshaving jurisdiction

34.130 Petitionfor writ; service; order of allowance; intervention

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

34.150 Peremptoryand alternative writs; form

34.160 Allowanceof peremptory writ in first instance

34.170 Answeror motion to dismiss by defendant

34.180 Failureto answer or move for dismissal; additional pleadings

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

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

34.210 Recoveryof damages; attorney fees, costs and disbursements

34.220 Recoveryas a bar

34.230 Impositionof fine; payment as bar

34.240 Appeal

(MandamusUnder Supreme Court’s Original Jurisdiction)

34.250 Certainmandamus proceedings under Supreme Court’s original jurisdiction

WRITOF HABEAS CORPUS

34.310 Purposeof writ; who may prosecute

34.320 Courtshaving jurisdiction; transfer of proceedings

34.330 Whomay not prosecute writ

34.340 Petition;who may apply; fee

34.350 Applicationby district attorney

34.355 Appointmentof counsel; compensation and costs

34.360 Contentsof petition when person challenges authority for confinement

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

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

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

34.380 Warrantin lieu of writ; when issued

34.390 Orderfor arrest of person having custody

34.400 Executionof warrant; return and proceedings thereon

34.410 Criminaloffense by person having custody

34.421 Contentsof writ

34.430 Defectof form; designation of persons

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

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

34.460 Mannerof service

34.470 Servicewhen officer or other person hides or refuses admittance

34.480 Proofof service

34.490 Dutyto obey writ

34.500 Whenreturn must be made

34.520 Sicknessof person

34.530 Requiringreturn and production of party by order

34.540 Contentsof return

34.550 Warrantin case of refusal or neglect to obey writ

34.560 Failureof sheriff to return writ

34.570 Preceptcommanding bringing of prisoner

34.580 Inquiryinto cause of imprisonment

34.590 Dischargewhen no legal cause for restraint is shown

34.600 Whenparty to be remanded

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

34.620 Inquiryinto legality of certain judgments and process not permitted

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

34.640 Custodyof party pending proceedings

34.650 Noticeto third persons

34.660 Noticeto district attorney

34.670 Replicationfollowing return; hearing

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

34.690 Requiringproduction of person after writ issued

34.695 Conductof hearing

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

34.710 Appeal;conclusiveness of judgment

34.712 Summaryaffirmation of judgment on appeal

34.720 Imprisonmentafter discharge

34.730 Forfeiturefor refusing copy of order or process

AMENDMENTOF PETITION OR ACTION TO SEEK PROPER REMEDY

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

CERTAINWRITS ABOLISHED

34.810 Scirefacias and quo warranto

WRITOF REVIEW

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

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

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

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

(a)Exceeded its jurisdiction;

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

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

(d)Improperly construed the applicable law; or

(e)Rendered a decision that is unconstitutional.

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

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

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

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

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