Chapter 34 — Chapter 34

ORS 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

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ORS 34.020 Who may obtain review; intermediate orders reviewable. Except for a proceeding resulting in a land use decision or limited land use decision as defined in ORS 197.015, for which review is provided in ORS 197.830 to 197.845, any party to any process or proceeding before or by any inferior court, officer, or tribunal may have the decision or determination thereof reviewed for errors, as provided in ORS 34.010 to 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; 2025 c.476 §23]

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ORS 34.030 Jurisdiction to grant writ; petition for writ; time limit. (1) Except as provided in subsection (2) of this section, the writ shall be allowed by the circuit court, or, in counties where the county court has judicial functions, by the county court wherein the decision or determination sought to be reviewed was made, upon the petition of the plaintiff, describing the decision or determination with convenient certainty, 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

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ORS 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

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

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ORS 34.055 [1977 c.515 §2; repealed by 1979 c.772 §26]

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ORS 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]

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ORS 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]

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ORS 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

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ORS 34.090 Order for further return. If the return to the writ is incomplete, the court may order a further return to be made

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ORS 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]

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ORS 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

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ORS 34.105 Definitions for ORS 34.105 to 34.240. As used in ORS 34.105 to 34.240

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ORS 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

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ORS 34.120 Courts having jurisdiction. (1) Except as provided in subsection (2) of this section, the circuit court or judge of the circuit court of the county in which the defendant, if a public officer or body, exercises functions, or if a private person or corporation, in which such person resides or may be found, or such private corporation might be sued in an action, shall have exclusive jurisdiction of mandamus proceedings, including proceedings under ORS 215.429 and 227.179

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ORS 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

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ORS 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

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ORS 34.150 Peremptory and alternative writs; form. (1) The writ shall be either alternative or peremptory

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ORS 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

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ORS 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]

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ORS 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]

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ORS 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]

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ORS 34.200 Allowance and trial in Supreme Court. In the Supreme Court the writ may be allowed by the court or any judge thereof, but shall only be tried and determined by the court. All issues therein shall be tried by the court. [Amended by 1965 c.6 §11; 2005 c.22 §27; 2015 c.212 §14]

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ORS 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

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ORS 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

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ORS 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

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ORS 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]

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ORS 34.250 Certain mandamus proceedings 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

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ORS 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

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ORS 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 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]

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ORS 34.330 Who may not prosecute writ. A person may not prosecute a writ of habeas corpus if

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ORS 34.340 Petition; who may apply; fee. The writ shall be allowed by the court or judge thereof upon the petition of the party for whose relief it is intended, or of some other person in behalf of the party, signed and verified by the oath of the plaintiff, to the effect that the plaintiff believes it to be true. The petition must be accompanied by the filing fee established under ORS 21.135. [Amended by 1995 c.657 §6; 1999 c.114 §2; 2003 c.737 §§32,33; 2005 c.702 §§37,38,39; 2011 c.595 §39]

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ORS 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

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ORS 34.355 Appointment of counsel; compensation and costs. If counsel is appointed by a court to represent, in an initial proceeding by habeas corpus or on appeal as provided in ORS 34.710, a person who is imprisoned or otherwise restrained of liberty by virtue of a charge or conviction of crime and who is determined to be financially eligible for appointed counsel at state expense, the executive director of the Oregon Public Defense Commission 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; 2023 c.281 §17]

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ORS 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

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ORS 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

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ORS 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 declaration under penalty of perjury and as otherwise required by such judge, that the person is unable to pay such fees

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ORS 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

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ORS 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

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ORS 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

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ORS 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

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ORS 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]

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ORS 34.420 [Repealed by 1991 c.884 §1 (34.421 enacted in lieu of 34.420)]

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ORS 34.421 Contents of writ. The writ shall require the defendant to file a return, at a specified time and place, that states the time and cause of plaintiff’s imprisonment or restraint. The writ shall not command the defendant to produce the plaintiff before the court or judge issuing the writ, unless the court, in its discretion, so orders. The court shall consider an allegation of 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)]

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ORS 34.430 Defect of form; designation of persons. The writ shall not be disobeyed for any defect of form. It is sufficient

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ORS 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

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ORS 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

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ORS 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

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ORS 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]

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ORS 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

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