When and to whom writ issued
Source:
Section 34.110 — When and to whom writ issued, https://www.oregonlegislature.gov/bills_laws/ors/ors034.html
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Notes of Decisions
In general
Mandamus is not proper remedy to test constitutionality of treatment afforded inmate of penal institution. Brooks v. Cupp, 6 Or App 539, 488 P2d 804 (1971), Sup Ct review denied
When public official has acted in way that violates some statute, rule or ordinance, he has implied legal duty to correct his error, and mandamus is appropriate remedy to compel him to do so. Parks v. Bd. of County Commr. of Tillamook County, 11 Or App 177, 501 P2d 85 (1972), Sup Ct review denied
Demand that duty be performed is generally required when interests involved are private, but is not necessarily required when interests involved are public. Parks v. Bd. of County Commr. of Tillamook County, 11 Or App 177, 501 P2d 85 (1972), Sup Ct review denied
Mere pendency in Supreme Court of mandamus proceeding subsequently commenced does not of itself stay trial court proceedings unless Supreme Court orders stay or grants other affirmative relief effecting such result. Lee v. Brown, 264 Or 341, 505 P2d 924 (1973), cert. denied, 414 US 830
In mandamus proceeding parties should proceed according to the rule that a demurrer to the alternative writ admits all well-pleaded facts in the writ. State ex rel Ware v. Hieber, 267 Or 124, 515 P2d 721 (1973)
A legal obligation to perform the act which is sought to be compelled must exist on the part of the defendant. Wilber v. Wheeler, 273 Or 855, 543 P2d 1052 (1975)
The writ of mandamus compelling the Director of Personnel of Lane County to certify as an employe an applicant known to lack certain minimum qualifications was improperly issued. Byland and Muir v. Wold, 27 Or App 715, 557 P2d 695 (1976)
Under “limited jurisdiction” test district court is “inferior court” for purposes of mandamus, and therefore circuit court could issue writs of mandamus to it. Mattila v. Mason 287 Or 235, 598 P2d 675 (1979)
Where, at time of their civil service examination, plaintiffs had no legal right to prevent application of veteran’s preference points to their entrance examination scores, they could not compel city personnel director, through mandamus, to re-apply such points to their promotional examinations since mandamus remedy is to be applied only when legal right has been established. Brown v. Dearborn, 52 Or App 237, 628 P2d 405 (1981), Sup Ct review denied
Petitioners were precluded from obtaining mandamus because they had remedy under APA even if they did not prevail in their attempt to obtain it. Mongelli v. Oregon Life and Health Guaranty, 85 Or App 518, 737 P2d 633 (1987); Scovell v. Goldschmidt, 106 Or App 111, 806 P2d 181 (1991), Sup Ct review denied
Criminal defendant’s petition for peremptory writ of mandamus, which sought discontinued use of pretrial agreement and disallowance of trial in defendant’s absence, should have been denied because defendant could seek relief through direct appeal and thus had plain, speedy and adequate remedy at law. State ex rel Young v. Keys, 98 Or App 69, 778 P2d 500 (1989)
Workers’ compensation referee’s rulings on claims, which allegedly exceeded referee’s jurisdiction, was not redressable by mandamus because exclusive review of order was provided in Workers’ Compensation Law and constituted plain, speedy and adequate remedy. SAIF v. Johnson, 99 Or App 64, 781 P2d 374 (1989), Sup Ct review denied
ORCP 29 procedures and requirements for joinder do not apply in mandamus proceeding. State ex rel Dewberry v. Kulongoski, 220 Or App 345, 187 P3d 220 (2008), aff’d 346 Or 260, 210 P3d 884 (2009)
Judicial acts and functions
District court’s decision whether to require disclosure of documents was judicial, not ministerial, decision and thus not subject to challenge through mandamus proceeding. State ex rel City of Portland v. Keys, 96 Or App 669, 773 P2d 1347 (1989)
When remedy at law is sufficient
Writ of mandamus was issued when right to be vindicated was a public as well as a private one despite fact that petitioner failed to avail himself of adequate and available remedy at law. McAlmond v. Myers, 262 Or 521, 500 P2d 457 (1972)
Right to judicial review of an administrative hearing was an adequate remedy at law, so mandamus would not be to quash service in that hearing. Phillips v. Layman, 15 Or App 107, 514 P2d 1352 (1973), Sup Ct review denied
Where relators alleged that denial of pretrial hearing prejudiced them in that: (1) they would be denied pretrial discovery of testimony of prosecution witness who refused to be interviewed and (2) denied pretrial opportunity to determine whether probable cause to require them to answer charge existed was not kind of prejudice which would render direct appeal inadequate remedy. State ex rel Automotive Emporium v. Murchison, 289 Or 265, 611 P2d 1169 (1980)
Where defendant had an adequate remedy in the ordinary course of the law by way of a request for transcript under ORS 138.500 (2) followed by a motion to supplement the record under ORAP 6.15, mandamus would not lie to compel trial court to grant defendant’s request for a transcript. State v. Montgomery, 294 Or 417, 657 P2d 668 (1983)
Mandamus relief is not available to putative father who challenges denial of pretrial motion for appointment and compensation of experts to conduct blood tests because direct appeal of adverse judgment, if any, is “plain, speedy and adequate remedy” at law. State ex rel Le Vasseur v. Merten, 297 Or 577, 686 P2d 366 (1984)
Where ability to obtain adjudication on merits is entirely within control of adverse party, plaintiff does not have plain, speedy and adequate remedy in ordinary course of law. State ex rel Dewberry v. Kulongoski, 220 Or App 345, 187 P3d 220 (2008), aff’d346 Or 260, 210 P3d 884 (2009)
Where circuit court determines on review of petition that relator has plain, speedy and adequate remedy at law, court is prohibited from issuing writ of mandamus. State ex rel Portland Habilitation Center v. PSU, 353 Or 42, 292 P3d 537 (2012)
Law Review Citations
15 EL 245 (1985)