Wise v. Hays

701 P.2d 1054 (1985)

74 Or.App. 245

Irving S. WISE, Respondent, v. Hazel G. HAYS, Chairperson, Oregon Board of Parole, Appellant.

Nos. 145,525; CA A33783.

Court of Appeals of Oregon.

Argued and Submitted May 17, 1985.

Decided July 3, 1985.

*1055 Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

No appearance for respondent.

Before BUTTLER, P.J., and WARDEN and VAN HOOMISSEN, JJ.

VAN HOOMISSEN, Judge.

Defendant appeals the issuance of a peremptory writ of mandamus requiring the Board of Parole to conduct a parole consideration hearing for plaintiff. We conclude that the circuit court erred in issuing the writ and quash it. The Board of Parole established plaintiff's parole release date as January, 1986. He did not seek judicial review of that decision, and the time for direct review passed. Subsequently, he petitioned for an alternative writ of mandamus seeking a rehearing, because, he contended, the Parole Board had failed to comply with ORS 144.210 at his earlier hearing. See Smith v. Board of Parole, 62 Or. App. 628, 661 P.2d 558 (1983). Defendant moved to dismiss the petition, arguing that mandamus would not lie, because the Board's decision setting plaintiff's parole release date was subject to direct judicial review and he had failed to seek judicial review. See Esperum v. Board of Parole, 296 Or. 789, 681 P.2d 1128 (1984); Harris v. Board of Parole, 47 Or. App. 289, 614 P.2d 602, rev. den. 290 Or. 157 (1980); ORS 144.335. The trial court rejected that argument and issued the writ. We conclude that that action was erroneous.

Mandamus cannot be used as a substitute for appellate review. State ex rel. Ricco v. Biggs, 198 Or. 413, 422, 255 P.2d 1055 (1953). The writ is extraordinary and is not to be issued in any case when there is a "plain, speedy and adequate remedy in the ordinary course of the law." ORS 34.110. Direct appeal is an adequate remedy within the meaning of ORS 34.110. State ex rel. LeVasseur v. Merten, 297 Or. 577, 580, 686 P.2d 366 (1984).

Having failed to seek judicial review of the Board's order, plaintiff is not now entitled to relief by writ of mandamus. Rosboro Lumber Co. v. Heine, 289 Or. 909, 922-923, 618 P.2d 960, reh. den. 290 Or. 213, 620 P.2d 925 (1980); see Annot., 145 A.L.R. 1044 (1943).

Peremptory writ of mandamus quashed.