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.

(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 trust account of the adult in custody.

(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 (Replication following return) 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 (Purpose of writ) to 34.730 (Forfeiture for refusing copy of order or process).

(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; 2019 c.213 §12]

Source: Section 34.370 — Order to show cause; time for ruling on show cause order; attorney fees; entry of judgment or issuance of writ; effect, https://www.­oregonlegislature.­gov/bills_laws/ors/ors034.­html.

Notes of Decisions

Trial court erred by dismissing case after writ issued and before pleadings were filed. Bird v. Maass, 104 Or App 271, 800 P2d 792 (1990)

Consideration of factual materials submitted with defendant institution’s response was improper in determining legal sufficiency of petition. Billings v. Gates, 133 Or App 236, 890 P2d 995 (1995), aff’d on other grounds, 323 Or 167, 916 P2d 291 (1996)

Attorney fees are not available where writ is issued but proceeding is subsequently dismissed. Wagy v. Armenakis, 152 Or App 210, 953 P2d 428 (1998), Sup Ct review denied

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
Green check means up to date. Up to date

Current through early 2024

§ 34.370’s source at oregon​.gov