2017 ORS 34.740¹
Amendment of petition or action against public body when wrong remedy sought
  • effect of amendment on time limitations
  • attorney fees

(1) A circuit court shall allow a person to amend a petition or action in the manner provided by this section if:

(a) The person seeks relief against a public body, as defined in ORS 192.311 (Definitions for ORS 192.311 to 192.478);

(b) The person incorrectly filed a petition for a writ of review, a petition for a writ of mandamus or an action for declaratory judgment; and

(c) The correct remedy of the person is a petition for a writ of review, a petition for a writ of mandamus or an action for declaratory judgment.

(2) If a petition or action is amended under this section, the petition or action is not subject to dismissal by reason of not having been commenced within the time otherwise allowed by law if the reason that the person filed the wrong petition or action was either:

(a) The person relied on a reasonable interpretation of the law relating to the correct remedy; or

(b) The public body that is the respondent or defendant in the proceeding gave misleading information to the person about the proper remedy, the person relied in good faith on the information provided by the public body and by reason of that reliance the person sought the wrong remedy.

(3) A circuit court shall order a public body, as defined in ORS 192.311 (Definitions for ORS 192.311 to 192.478), to pay reasonable attorney fees incurred by any person in filing a petition for a writ of review, a petition for a writ of mandamus or an action for declaratory judgment seeking relief from the public body if:

(a) The court determines that the person has filed the wrong petition or action, and the person subsequently amends the pleading in the manner provided by subsection (1) of this section;

(b) The public body that is the respondent or defendant in the proceeding gave information to the person with the intent to mislead the person as to the proper remedy or gave information to the person, with a reckless disregard for the truth or falsity of the information, about the proper remedy; and

(c) The person relied in good faith on the information provided by the public body, and by reason of that reliance the person sought the wrong remedy. [2001 c.561 §2]

Note: 34.740 (Amendment of petition or action against public body when wrong remedy sought) was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 34 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

Notes of Decisions

Where trial court determined that plaintiff had not demonstrated clear entitle­ment to remedy of peremptory writ as opposed to alternative writ of mandamus, peti­tioner did not “incorrectly” file a peti­tion, as re­quired under this statute; thus, court was not re­quired to allow peti­tioner to make substantive amend­ment during course of judicial pro­ceed­ing that would convert peti­tion from mandamus ac­tion into declaratory judg­ment ac­tion. State ex rel O’Connor v. Helm/Clackamas County, 273 Or App 717, 359 P3d 550 (2015), Sup Ct review denied

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.