Chapter 34 — Writs

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, 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 3…

34.030 Jurisdiction to grant writ; petition for writ; time limit

Except as provided in subsection (2) of this section, 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, a…

34.040 When allowed

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: Exceeded its jurisdiction; Failed to follow the procedure applicable to the …

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.

34.055 [1977 c.515 §2; repealed by 1979 c.772 §26]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

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.

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 o…

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 t…

34.102 Review of decisions of municipal corporations; transfers between circuit court and Land Use Board of Appeals; limitations

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. Except for a proceeding resulting in a land use decision or limited land use decision as defined in ORS 197.015, for which rev…

34.105 Definitions for ORS 34.105 to 34.240

As used in ORS 34.105 to 34.240: “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. “Counsel for defendant” means the attorney who appears on behalf of the defendant in a mandamus proceeding as provided in ORS 34.130 (4). “Def…

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 fun…

34.120 Courts having jurisdiction

Except as provided in subsection (2) of this section, the circuit court or judge of the circuit court of the county in which the defendant, if a public officer or body, exercises functions, or if a private person or corporation, in which such person resides or may be found, or such private corporation might be sued in an action, shall have exclusive jurisdic…

34.130 Petition for writ; service; order of allowance; intervention

The relator shall file a petition for a writ of mandamus with the clerk of the court or court administrator. 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 su…

34.140 Direction and service of writ; proof of service; enforcing obedience to writ

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 …

34.150 Peremptory and alternative writs; form

The writ shall be either alternative or peremptory. When in the alternative, the writ 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 the act; Command that the defendant, immediately after the receipt of the writ, or at some other speci…

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.

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 d…

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 …

34.200 Allowance and trial in Supreme Court

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. All issues therein shall be tried by the court.

34.210 Recovery of damages; attorney fees, costs and disbursements

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. The court in its discretion may designate a prevailing party and award attorney fees, costs and disbursements to the prevailing party, b…

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…

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. (Mandamus Under Supreme Court’s Original Jurisdiction)

34.250 Certain mandamus proceedings under Supreme Court’s original jurisdiction

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…

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 restra…

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 de…

34.330 Who may not prosecute writ

A person may not prosecute a writ of habeas corpus if: 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 ju…

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 the filing fee established under ORS 21.135.

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 determined to be financially eligible for appointed counsel at state expense, the executive director of the Ore…

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: 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. That …

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 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: Comply with requirements of ORS 34.360 (1), (3), (4) and (5); and State facts in support of a claim that the person …

34.365 Filing petition of prisoner without payment of filing fees; fee as charge against trust account

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 declaration under…

34.370 Order to show cause; time for ruling on show cause order; attorney fees; entry of judgment or issuance of writ; effect

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. Upon the issuance of a show cause order under subsection (1) of this section, the following shall apply: The judge shall …

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 …

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 s…

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.

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 l…

34.430 Defect of form; designation of persons

The writ shall not be disobeyed for any defect of form. It is sufficient: 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 descri…

34.440 Who may serve writ; tender of fees and undertaking when service is on sheriff or other officer

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: The party…

34.450 Payment of charges when service is on person other than sheriff or other 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 n…

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 officer or other person 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.

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 dut…

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 dispo…

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, withi…

34.540 Contents of return

The officer or person upon whom the writ was duly served shall state in the return, plainly and unequivocally: 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 subsequen…

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 i…

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.

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: 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, By virt…

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: The jurisdiction of the court or officer has bee…

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 …

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 th…

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. Thereupon the court or …

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

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, demon…

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.

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.

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

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. The court shall inclu…

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 judgment therein, 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 …

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…

34.720 Imprisonment after discharge

A person who has been finally discharged upon a proceeding by habeas corpus may not again be imprisoned, restrained or kept in custody for the same cause. A person is not deemed to be imprisoned, restrained or kept in custody for the same cause if: The person has been discharged from a commitment on a criminal charge, and afterwards is committed for the sam…

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

A circuit court shall allow a person to amend a petition or action in the manner provided by this section if: The person seeks relief against a public body, as defined in ORS 192.311; 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 The correct remedy of the person i…

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]

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