2017 ORS 34.040¹
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]

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 (Review of decision of hearings officer or other authority), 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 (Probationary teacher) 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 (Transfer or lease of real property owned or controlled by political subdivision) 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)

Notes of Decisions

The circuit court lacked jurisdic­tion to issue a writ of review concerning district court order denying defendant’s mo­tion for leave to withdraw his guilty plea in a crim­i­nal pro­ceed­ing. Humphreys v. State of Oregon, 19 Or App 630, 528 P2d 1094 (1974)

Court may join two writs that arise out of same transac­tion. Bienz v. City of Dayton, 29 Or App 761, 566 P2d 904 (1977), Sup Ct review denied

Approval of tentative plan under subdivision ordinance is final order reviewable in writ of review pro­ceed­ing. Bienz v. City of Dayton, 29 Or App 761, 566 P2d 904 (1977), Sup Ct review denied

Order which is not ap­pealable is not subject to review by writ of review. Botteron v. Carter, 33 Or App 417, 576 P2d 828 (1978)

Where rights and responsibilities of manage­ment employe at community college were controlled by terms of his contract and college’s Administrative Policy Handbook, remedy for termina­tion was limited to writ of review, since district board’s termina­tion decision was “decision or determina­tion” under ORS 34.020 (Who may obtain review) in exercise of its authority under ORS 341.290 (General powers). Cole v. Chemeketa Comm. College, 58 Or App 77, 647 P2d 935 (1982), Sup Ct review denied

In absence of statutory basis by which judge could compel nonparty to crim­i­nal case to grant access to nonparty’s home to attorneys for crim­i­nal defendant, peremptory writ issued. State ex rel Beach v. Norblad, 308 Or 429, 781 P2d 349 (1989)

Availability of writ of review does not preclude ac­tion based on common law tort of wrongful discharge. Shockey v. City of Portland, 313 Or 414, 837 P2d 505 (1992)

Where peti­tion for writ of review has been timely filed but peti­tioner has not taken addi­tional steps necessary to obtain and serve writ, court retains jurisdic­tion but lacks authority to proceed further on peti­tion. Spivak v. Marriott, 213 Or App 1, 159 P3d 1192 (2007)

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 ORS 34.040 (When allowed) standards. Spivak v. Marriott, 213 Or App 1, 159 P3d 1192 (2007)

Law Review Cita­tions

10 WLJ 95, 96 (1973); 10 WLJ 359, 374-384 (1974); 54 OLR 396-401 (1975); 15 EL 243 (1985)

1 Legislative Counsel Committee, CHAPTER 34—Writs, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors034.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 34, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano034.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.