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 (Definitions for chapter) (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]

Source: Section 34.040 — When allowed, https://www.­oregonlegislature.­gov/bills_laws/ors/ors034.­html.

Notes of Decisions

In general

Party who remonstrated before inferior tribunal has prima facie standing to initiate writ of review proceeding to challenge decision of the inferior tribunal; respondents then have burden of raising objection of insufficient standing. Duddles v. City Council of West Linn, 21 Or App 310, 535 P2d 583 (1975)

Once raised, resolution of objection of insufficient standing requires evidentiary hearing by circuit court in which petitioner bears burden of proving standing. Duddles v. City Council of West Linn, 21 Or App 310, 535 P2d 583 (1975)

Property owner in reasonably close proximity, such as within sight or sound of proposed use of land, should ordinarily have standing to challenge a zoning decision. Duddles v. City Council of West Linn, 21 Or App 310, 535 P2d 583 (1975)

Under this section and ORS 215.422, community organization lacked standing to obtain review under representational theory where it had shown no particular injury to interests of members or itself, except in respect to one member who could not establish injury of some substantial right, nor could organization obtain standing under a de jure theory where organization was an unofficially formed group without defined membership. Clark v. Dagg, 38 Or App 71, 588 P2d 1298 (1979), Sup Ct review denied

Review for substantial evidence based on whole record pursuant to writ is identical in manner and effect to review applicable in Administrative Procedures Act and Land Use Board of Appeals settings. Johnson v. Civil Service Board of Portland, 161 Or App 489, 985 P2d 854 (1999), modified 162 Or App 527, 986 P2d 666 (1999)

In assessing whether hearsay evidence constitutes substantial evidence, case-specific inquiry is necessary to determine circumstances that include: 1) alternatives to relying on hearsay; 2) importance of hearsay to outcome; 3) existence of supporting or opposing evidence; 4) impact of inability to cross-examine; and 5) consequences of decision. Johnson v. Civil Service Board of Portland, 161 Or App 489, 985 P2d 854 (1999), modified 162 Or App 527, 986 P2d 666 (1999)

Denial of statutory right affecting legal status of petitioner’s own property constitutes cognizable injury or practical effect creating justiciable controversy. Orr v. East Valley Water District, 203 Or App 430, 125 P3d 834 (2005), Sup Ct review denied

Final decision by inferior tribunal precludes related claim if: 1) claimant was party to tribunal proceeding that adjudicated effect of facts common to related claim; and 2) related claim would involve reviewing correctness of tribunal decision under review standards of this section. Spivak v. Marriott, 213 Or App 1, 159 P3d 1192 (2007)

Reviewable decisions and proceedings

The writ of review procedure is normally the proper method for securing judicial review of the quasi-judicial decision of the local governing body. Brooks v. Dierker, 275 Or 619, 552 P2d 533 (1976)

Provisions authorizing appeal of boundary change order under writ of review were impliedly repealed by subsequent statutory amendment excluding state agencies from writ of review procedures. League of Women Voters v. Lane County Boundary Commission, 32 Or App 53, 573 P2d 1255 (1978), Sup Ct review denied

City council’s alleged failure to hold quasi-judicial due process hearing before discharging police chief was not cognizable in writ of review proceeding. Graziano v. City Council of Canby, 35 Or App 271, 581 P2d 552 (1978), Sup Ct review denied

Distinction between whether a decision is judicial/quasi-judicial, and thus cognizable in writ of review proceedings, or whether such decision is legislative and administrative, and thus subject to judicial review by some other means (such as declaratory judgment, suit in equity or action at law) is whether party seeks limited judicial appellate review of record before the inferior tribunal, or instead seeks aid of a record making and fact finding court. Graziano v. City Council of Canby, 35 Or App 271, 581 P2d 552 (1978), Sup Ct review denied

Board of county commissioners’ action on application for comprehensive plan change was deemed denial for purposes of review where two of five county commissioners abstained, and vote of remaining commissioners was 2 to 1 in favor of application, but county charter required affirmative vote by three commissioners for any action. Eastgate Theater v. Bd. of County Comm’rs, 37 Or App 745, 588 P2d 640 (1978)

Since statutory scheme relating to road vacation ([former] ORS 368.565 to 368.580) sufficiently channels discretion through fact-finding procedures and broadly stated criteria, decisions under it qualify as quasi-judicial functions and may be examined under writ of review procedures. Strawberry Hill 4-Wheelers v. Benton Co. Bd. of Comm., 287 Or 591, 601 P2d 769 (1979)

School board’s nonrenewal of probationary teacher under ORS 342.835 was “quasi-judicial” function subject to writ of review. Henthorn v. Grand Prairie School Dist., 287 Or 683, 601 P2d 1243 (1979)

City council’s decision to rezone parcel from lower to higher density single-family residential was quasi-judicial and thus reviewable by writ of review. Neuberger v. City of Portland, 288 Or 155, 603 P2d 771 (1979)

City council’s removal of plaintiff as city attorney was quasi-judicial proceeding, so appeal to circuit court was by way of writ of review and not declaratory judgment. Jordan v. City Council of Lake Oswego, 49 Or App 31, 618 P2d 1298 (1980), Sup Ct review denied

City council’s decision to sell publicly owned property pursuant to ORS 271.310 was legislative, as it did not entail an adjudicatory application of pre-existing criteria to concrete facts and therefore was not judicially reviewable by writ of review. Lane v. City of Prineville, 49 Or App 385, 619 P2d 940 (1980)

Decision by county sewerage agency to charge sewer connection fee to school district for expansion of its existing maintenance facility was quasi-judicial determination and reviewable exclusively by writ of review. School Dist. No. 48, Wash. Co. v. Unified Sewerage Agency, 51 Or App 795, 627 P2d 485 (1981)

Final decision by director of port district to deny relocation expenses made pursuant to [former] ORS 281.080 was reviewable under this section and trial court had no jurisdiction to hear action in contract. Spada v. Port of Portland, 55 Or App 148, 637 P2d 229 (1981)

County’s act of retaining interest on mineral lease income is ministerial rather that quasi-judicial and therefore, declaratory relief was proper remedy. State ex rel School Dist. 13 v. Columbia County, 66 Or App 237, 674 P2d 608 (1983), Sup Ct review denied

On remand, Court of Appeals held that substantial evidence, for purpose of this section, means such evidence as reasonable minds might accept as adequate to support conclusion. Caffey v. Lane County, 75 Or App 399, 706 P2d 590 (1985)

Judicial or quasi-judicial function involves or requires adjudicatory process which typically results in decision, applies pre-existing criteria to concrete facts and is directed at closely circumscribed factual situation or relatively small number of persons. Koch v. City of Portland, 306 Or 444, 760 P2d 252 (1988)

Mayor’s imposition of sanction on police officer for violating police bureau order was quasi-judicial act, and trial court had writ of review jurisdiction. Koch v. City of Portland, 306 Or 444, 760 P2d 252 (1988)

In addition to considering presence or absence of procedural requirements, determination of whether policymaking process is quasi-judicial or legislative in nature must at least include balancing factors of: 1) whether process, once begun, calls for reaching decision confined by preexisting criteria rather than discretion; 2) extent to which decision maker applies preexisting criteria to concrete facts; and 3) extent to which decision is directed at closely circumscribed factual situation or relatively small number of persons. Hood River Valley Residents’ Committee, Inc. v. Board of County Commissioners of Hood River County, 193 Or App 485, 91 P3d 748 (2004)

Procedure for writ of review

The writ should issue only if the district court error is disclosed on the record properly before the circuit court. Myers v. Carter, and Marquam Inv. Corp., 27 Or App 351, 556 P2d 703 (1976), Sup Ct review denied

Questions of fact

Where substantial conflicts of evidence were present in zone change case before city council and council findings, adopted after issuance of order, did not suggest deliberate ratification of order, these findings were inadequate. Heilman v. City of Roseburg, 39 Or App 71, 591 P2d 390 (1979)

Findings which address only one goal of comprehensive plan are adequate to support denial of zone change if goal provides substantial reason for denial. Heilman v. City of Roseburg, 39 Or App 71, 591 P2d 390 (1979)

City council is not bound by decision of planning commission even when it is supported by substantial evidence. Heilman v. City of Roseburg, 39 Or App 71, 591 P2d 390 (1979)

Board of county commissioner’s order granting minor partition of agricultural land based upon finding that land was unsuitable for production of farm crops was not supported by substantial evidence when evidence consisted of six photographs unaccompanied by testimony and two soil maps of insufficient detail to distinguish property at issue. Miles v. Bd. of Comm. of Clackamas County, 48 Or App 951, 618 P2d 986 (1980)

Law Review Citations

10 WLJ 371 (1974); 6 EL 173 (1975); 55 OLR 123 (1976)

34.010
Former writ of certiorari as writ of review
34.020
Who may obtain review
34.030
Jurisdiction to grant writ
34.040
When allowed
34.050
Plaintiff’s undertaking
34.060
To whom directed
34.070
Stay of proceedings
34.080
Issuance and service of writ
34.090
Order for further return
34.100
Power of court on review
34.102
Review of decisions of municipal corporations
34.105
Definitions for ORS 34.105 to 34.240
34.110
When and to whom writ issued
34.120
Courts having jurisdiction
34.130
Petition for writ
34.140
Direction and service of writ
34.150
Peremptory and alternative writs
34.160
Allowance of peremptory writ in first instance
34.170
Answer or motion to dismiss by defendant
34.180
Failure to answer or move for dismissal
34.190
Other pleadings
34.200
Allowance and trial in Supreme Court
34.210
Recovery of damages
34.220
Recovery as a bar
34.230
Imposition of fine
34.240
Appeal
34.250
Certain mandamus proceedings under Supreme Court’s original jurisdiction
34.310
Purpose of writ
34.320
Courts having jurisdiction
34.330
Who may not prosecute writ
34.340
Petition
34.350
Application by district attorney
34.355
Appointment of counsel
34.360
Contents of petition when person challenges authority for confinement
34.362
Contents of petition when person challenges conditions of confinement or deprivation of rights while confined
34.365
Filing petition of prisoner without payment of filing fees
34.370
Order to show cause
34.380
Warrant in lieu of writ
34.390
Order for arrest of person having custody
34.400
Execution of warrant
34.410
Criminal offense by person having custody
34.421
Contents of writ
34.430
Defect of form
34.440
Who may serve writ
34.450
Payment of charges when service is on person other than sheriff or other officer
34.460
Manner of service
34.470
Service when officer or other person hides or refuses admittance
34.480
Proof of service
34.490
Duty to obey writ
34.500
When return must be made
34.520
Sickness of person
34.530
Requiring return and production of party by order
34.540
Contents of return
34.550
Warrant in case of refusal or neglect to obey writ
34.560
Failure of sheriff to return writ
34.570
Precept commanding bringing of prisoner
34.580
Inquiry into cause of imprisonment
34.590
Discharge when no legal cause for restraint is shown
34.600
When party to be remanded
34.610
Grounds for discharge of prisoner in custody under order or civil process
34.620
Inquiry into legality of certain judgments and process not permitted
34.630
Proceedings where commitment for criminal offense is legal, or party probably is guilty
34.640
Custody of party pending proceedings
34.650
Notice to third persons
34.660
Notice to district attorney
34.670
Replication following return
34.680
Motion to deny petition
34.690
Requiring production of person after writ issued
34.695
Conduct of hearing
34.700
Judgment
34.710
Appeal
34.712
Summary affirmation of judgment on appeal
34.720
Imprisonment after discharge
34.730
Forfeiture for refusing copy of order or process
34.740
Amendment of petition or action against public body when wrong remedy sought
34.810
Scire facias and quo warranto
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