2017 ORS 34.370¹
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 inmate’s trust account.

(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]

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

Notes of Decisions

Availability of relief under writ of habeas corpus is not defeated by transfer of custody from one correc­tional facility to an­oth­er while matter is pending. Clemman v. Wright, 109 Or App 325, 819 P2d 327 (1991); McGee v. Johnson, 161 Or App 384, 984 P2d 341 (1999)

Law Review Cita­tions

14 WLJ 55 (1977)

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.