USA Statutes : oregon
Title : TITLE 03 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS
Chapter : Chapter 34 Writs
The writ
heretofore known as the writ of certiorari is known in these statutes as
the writ of review.
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]
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] (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] 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] 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] 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] 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. If the return to the writ is
incomplete, the court may order a further return to be made. 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](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)

(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] 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. (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](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](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] (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] 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. 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]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]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](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]
(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
judge’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] 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. 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. 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 Court’s Original Jurisdiction)(1) 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 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
Court’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 Court’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 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. 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 plaintiff’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] 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) Dismisses the judicial review on the grounds that the motion
for leave to proceed with judicial review described in ORS 144.335 does
not present a substantial question of law;

(b) Summarily affirms the order of the board on the grounds that
the motion for leave to proceed with judicial review described in ORS
144.335 does not present a substantial question of law;

(c) Otherwise disposes of the judicial review on the merits of the
petitioner’s issues on judicial review; or

(d) Dismisses the judicial review because of a procedural defect.
[Amended by 1959 c.636 §22; 2001 c.661 §2; 2003 c.576 §311] (1) 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 $25.

(2) In addition to the fee provided for in subsection (1) of this
section, for the period commencing September 1, 2003, and ending December
31, 2006, the clerk of the court shall collect a surcharge of $8 upon the
filing of a petition for a writ of habeas corpus. [Amended by 1995 c.657
§6; 1999 c.114 §2; 2003 c.737 §§32,33; 2005 c.702 §§37,38]Note: The amendments to 34.340 by section 39, chapter 702, Oregon
Laws 2005, become operative January 1, 2007. See section 40, chapter 702,
Oregon Laws 2005. The text that is operative on and after January 1,
2007, is set forth for the user’s convenience.34.340. 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. 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. 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]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]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](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 plaintiff’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](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 inmate’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] 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. 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. 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. 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] 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 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)] 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.(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]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. 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.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] 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. 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. 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. 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. 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. (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. 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. 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] 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. 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. 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. 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]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]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.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. 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. 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. 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. 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](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] 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] 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](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] 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] 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 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
defendant’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] 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] 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(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 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.

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