2007 Oregon Code - Chapter 34 :: Chapter 34 - Writs
Chapter 34 — Writs
2007 EDITION
WRITS
SPECIAL ACTIONS AND PROCEEDINGS
WRIT OF REVIEW
34.010Â Â Â Â Â Â Former
writ of certiorari as writ of review
34.020Â Â Â Â Â Â Who
may obtain review; intermediate orders reviewable
34.030Â Â Â Â Â Â Jurisdiction
to grant writ; petition for writ; time limit
34.040Â Â Â Â Â Â When
allowed
34.050Â Â Â Â Â Â PlaintiffÂ’s
undertaking
34.060Â Â Â Â Â Â To
whom directed; return
34.070Â Â Â Â Â Â Stay
of proceedings
34.080Â Â Â Â Â Â Issuance
and service of writ
34.090Â Â Â Â Â Â Order
for further return
34.100Â Â Â Â Â Â Power
of court on review; appeal
34.102Â Â Â Â Â Â Review
of decisions of municipal corporations; transfers between circuit court and
Land Use Board of Appeals; limitations
WRIT OF MANDAMUS
(Generally)
34.105Â Â Â Â Â Â Definitions
for ORS 34.105 to 34.240
34.110Â Â Â Â Â Â When
and to whom writ issued
34.120Â Â Â Â Â Â Courts
having jurisdiction
34.130Â Â Â Â Â Â Petition
for writ; service; order of allowance; intervention
34.140Â Â Â Â Â Â Direction
and service of writ; proof of service; enforcing obedience to writ
34.150Â Â Â Â Â Â Peremptory
and alternative writs; form
34.160Â Â Â Â Â Â Allowance
of peremptory writ in first instance
34.170Â Â Â Â Â Â Answer
or motion to dismiss by defendant
34.180Â Â Â Â Â Â Failure
to answer or move for dismissal; additional pleadings
34.190Â Â Â Â Â Â Other
pleadings; construction and amendment of pleadings; motions; manner of trial
34.200Â Â Â Â Â Â Trial
during term time or vacation; allowance and trial in Supreme Court
34.210Â Â Â Â Â Â Recovery
of damages; attorney fees, costs and disbursements
34.220Â Â Â Â Â Â Recovery
as a bar
34.230Â Â Â Â Â Â Imposition
of fine; payment as bar
34.240Â Â Â Â Â Â Appeal
(Mandamus Under Supreme CourtÂ’s Original
Jurisdiction)
34.250Â Â Â Â Â Â Certain
mandamus proceedings under Supreme CourtÂ’s original jurisdiction
WRIT OF HABEAS CORPUS
34.310Â Â Â Â Â Â Purpose
of writ; who may prosecute
34.320Â Â Â Â Â Â Courts
having jurisdiction; transfer of proceedings
34.330Â Â Â Â Â Â Who
may not prosecute writ
34.340Â Â Â Â Â Â Petition;
who may apply; fee
34.350Â Â Â Â Â Â Application
by district attorney
34.355Â Â Â Â Â Â Appointment
of counsel; compensation and costs
34.360Â Â Â Â Â Â Contents
of petition when person challenges authority for confinement
34.362Â Â Â Â Â Â Contents
of petition when person challenges conditions of confinement or deprivation of
rights while confined
34.365Â Â Â Â Â Â Filing
petition of prisoner without payment of filing fees; fee as charge against
trust account
34.370Â Â Â Â Â Â Order
to show cause; time for ruling on show cause order; attorney fees; entry of
judgment or issuance of writ; effect
34.380Â Â Â Â Â Â Warrant
in lieu of writ; when issued
34.390Â Â Â Â Â Â Order
for arrest of person having custody
34.400Â Â Â Â Â Â Execution
of warrant; return and proceedings thereon
34.410Â Â Â Â Â Â Criminal
offense by person having custody
34.421Â Â Â Â Â Â Contents
of writ
34.430Â Â Â Â Â Â Defect
of form; designation of persons
34.440Â Â Â Â Â Â Who
may serve writ; tender of fees and undertaking when service is on sheriff or
other officer
34.450Â Â Â Â Â Â Payment
of charges when service is on person other than sheriff or other officer
34.460Â Â Â Â Â Â Manner
of service
34.470Â Â Â Â Â Â Service
when officer or other person hides or refuses admittance
34.480Â Â Â Â Â Â Proof
of service
34.490Â Â Â Â Â Â Duty
to obey writ
34.500Â Â Â Â Â Â When
return must be made
34.520Â Â Â Â Â Â Sickness
of person
34.530Â Â Â Â Â Â Requiring
return and production of party by order
34.540Â Â Â Â Â Â Contents
of return
34.550Â Â Â Â Â Â Warrant
in case of refusal or neglect to obey writ
34.560Â Â Â Â Â Â Failure
of sheriff to return writ
34.570Â Â Â Â Â Â Precept
commanding bringing of prisoner
34.580Â Â Â Â Â Â Inquiry
into cause of imprisonment
34.590Â Â Â Â Â Â Discharge
when no legal cause for restraint is shown
34.600Â Â Â Â Â Â When
party to be remanded
34.610Â Â Â Â Â Â Grounds
for discharge of prisoner in custody under order or civil process
34.620Â Â Â Â Â Â Inquiry
into legality of certain judgments and process not permitted
34.630Â Â Â Â Â Â Proceedings
where commitment for criminal offense is legal, or party probably is guilty
34.640Â Â Â Â Â Â Custody
of party pending proceedings
34.650Â Â Â Â Â Â Notice
to third persons
34.660Â Â Â Â Â Â Notice
to district attorney
34.670Â Â Â Â Â Â Replication
following return; hearing
34.680Â Â Â Â Â Â Motion
to deny petition; motion to strike; controverting replication; time to plead;
construction and effect of pleadings
34.690Â Â Â Â Â Â Requiring
production of person after writ issued
34.695Â Â Â Â Â Â Conduct
of hearing
34.700Â Â Â Â Â Â Judgment;
liability for obedience to judgment; payment of attorney fees
34.710Â Â Â Â Â Â Appeal;
conclusiveness of judgment
34.712Â Â Â Â Â Â Summary
affirmation of judgment on appeal
34.720Â Â Â Â Â Â Imprisonment
after discharge
34.730Â Â Â Â Â Â Forfeiture
for refusing copy of order or process
AMENDMENT OF PETITION OR ACTION TO SEEK
PROPER REMEDY
34.740Â Â Â Â Â Â Amendment
of petition or action against public body when wrong remedy sought; effect of
amendment on time limitations; attorney fees
CERTAIN WRITS ABOLISHED
34.810Â Â Â Â Â Â Scire
facias and quo warranto
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
PlaintiffÂ’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
(Generally)
     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. (1) The writ shall be either alternative or peremptory.
     (2) When in the alternative, the writ
shall:
     (a) State concisely the facts, according
to the petition, showing:
     (A) The obligation of the defendant to
perform the act; and
     (B) The omission of the defendant to
perform the act;
     (b) Command that the defendant,
immediately after the receipt of the writ, or at some other specified time:
     (A) Perform the act required to be
performed; or
     (B) 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
     (c) Command 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.
     (3) When peremptory, the writ shall be in
a form similar to that described in subsection (2) of this section, 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. [Amended by
2005 c.22 §26]
     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. (1) 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.
     (2) 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. [Amended
by 1965 c.6 §11; 2005 c.22 §27]
     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 judgeÂ’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 CourtÂ’s Original Jurisdiction)
     34.250
Certain mandamus proceedings under Supreme CourtÂ’s original jurisdiction. (1) The provisions of this section apply
only to the exercise of the Supreme CourtÂ’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 CourtÂ’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 CourtÂ’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 CourtÂ’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 plaintiffÂ’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 may not 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 of a competent tribunal of civil or criminal
jurisdiction, or by virtue of an execution issued upon such judgment.
     (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) Summarily affirms the order of the
board on the grounds that the person failed to present a substantial question
of law;
     (b) Otherwise disposes of the judicial
review on the merits of the petitionerÂ’s issues on judicial review; or
     (c) Dismisses the judicial review because
of a procedural defect. [Amended by 1959 c.636 §22; 2001 c.661 §2; 2003 c.576 §311;
2007 c.411 §2]
     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 $28. [Amended by 1995 c.657 §6; 1999 c.114 §2; 2003 c.737 §§32,33;
2005 c.702 §§37,38,39]
     Note: Section 15 (10), chapter 860, Oregon Laws
2007, provides:
     Sec.
15. (10) In addition to the
fee provided for in ORS 34.340, for the period commencing September 1, 2007,
and ending June 30, 2009, the clerk of the court shall collect a surcharge of
$1 upon the filing of a petition for a writ of habeas corpus. [2007 c.860 §15(10)]
     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 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. [1979 c.867 §17; 1981 s.s. c.3 §128;
1985 c.502 §21; 2001 c.962 §64]
     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 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; 2003 c.576 §312]
     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:
     (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; 2003 c.576 §313]
     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
plaintiffÂ’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 inmateÂ’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 plaintiffÂ’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 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 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 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. [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 of any
court, or of any execution issued upon such judgment; 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. [Amended by 2003 c.576 §314]
     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 of any court, nor by any provision of law. [Amended by 2003
c.576 §315]
     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. 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; 2005 c.22 §28]
     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 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. [Amended by 2003 c.576 §235]
     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
appellantÂ’s brief and without submission of the defendantÂ’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 defendantÂ’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.
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:
     (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;
     (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;
     (3) In a civil action or suit, the party
has been discharged for illegality in the judgment 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; 2003 c.14 §17; 2003 c.576 §316]
     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: 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]
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