ORS 34.110
When and to whom writ issued


A writ of mandamus may be issued to any inferior court, corporation, board, officer or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station; but though the writ may require such court, corporation, board, officer or person to exercise judgment, or proceed to the discharge of any functions, it shall not control judicial discretion. The writ shall not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law.

Source: Section 34.110 — When and to whom writ issued, https://www.­oregonlegislature.­gov/bills_laws/ors/ors034.­html.

Notes of Decisions

In general

Mandamus is not proper remedy to test constitutionality of treatment afforded inmate of penal institution. Brooks v. Cupp, 6 Or App 539, 488 P2d 804 (1971), Sup Ct review denied

When public official has acted in way that violates some statute, rule or ordinance, he has implied legal duty to correct his error, and mandamus is appropriate remedy to compel him to do so. Parks v. Bd. of County Commr. of Tillamook County, 11 Or App 177, 501 P2d 85 (1972), Sup Ct review denied

Demand that duty be performed is generally required when interests involved are private, but is not necessarily required when interests involved are public. Parks v. Bd. of County Commr. of Tillamook County, 11 Or App 177, 501 P2d 85 (1972), Sup Ct review denied

Mere pendency in Supreme Court of mandamus proceeding subsequently commenced does not of itself stay trial court proceedings unless Supreme Court orders stay or grants other affirmative relief effecting such result. Lee v. Brown, 264 Or 341, 505 P2d 924 (1973), cert. denied, 414 US 830

In mandamus proceeding parties should proceed according to the rule that a demurrer to the alternative writ admits all well-pleaded facts in the writ. State ex rel Ware v. Hieber, 267 Or 124, 515 P2d 721 (1973)

A legal obligation to perform the act which is sought to be compelled must exist on the part of the defendant. Wilber v. Wheeler, 273 Or 855, 543 P2d 1052 (1975)

The writ of mandamus compelling the Director of Personnel of Lane County to certify as an employe an applicant known to lack certain minimum qualifications was improperly issued. Byland and Muir v. Wold, 27 Or App 715, 557 P2d 695 (1976)

Under “limited jurisdiction” test district court is “inferior court” for purposes of mandamus, and therefore circuit court could issue writs of mandamus to it. Mattila v. Mason 287 Or 235, 598 P2d 675 (1979)

Where, at time of their civil service examination, plaintiffs had no legal right to prevent application of veteran’s preference points to their entrance examination scores, they could not compel city personnel director, through mandamus, to re-apply such points to their promotional examinations since mandamus remedy is to be applied only when legal right has been established. Brown v. Dearborn, 52 Or App 237, 628 P2d 405 (1981), Sup Ct review denied

Petitioners were precluded from obtaining mandamus because they had remedy under APA even if they did not prevail in their attempt to obtain it. Mongelli v. Oregon Life and Health Guaranty, 85 Or App 518, 737 P2d 633 (1987); Scovell v. Goldschmidt, 106 Or App 111, 806 P2d 181 (1991), Sup Ct review denied

Criminal defendant’s petition for peremptory writ of mandamus, which sought discontinued use of pretrial agreement and disallowance of trial in defendant’s absence, should have been denied because defendant could seek relief through direct appeal and thus had plain, speedy and adequate remedy at law. State ex rel Young v. Keys, 98 Or App 69, 778 P2d 500 (1989)

Workers’ compensation referee’s rulings on claims, which allegedly exceeded referee’s jurisdiction, was not redressable by mandamus because exclusive review of order was provided in Workers’ Compensation Law and constituted plain, speedy and adequate remedy. SAIF v. Johnson, 99 Or App 64, 781 P2d 374 (1989), Sup Ct review denied

ORCP 29 procedures and requirements for joinder do not apply in mandamus proceeding. State ex rel Dewberry v. Kulongoski, 220 Or App 345, 187 P3d 220 (2008), aff’d 346 Or 260, 210 P3d 884 (2009)

Judicial acts and functions

District court’s decision whether to require disclosure of documents was judicial, not ministerial, decision and thus not subject to challenge through mandamus proceeding. State ex rel City of Portland v. Keys, 96 Or App 669, 773 P2d 1347 (1989)

When remedy at law is sufficient

Writ of mandamus was issued when right to be vindicated was a public as well as a private one despite fact that petitioner failed to avail himself of adequate and available remedy at law. McAlmond v. Myers, 262 Or 521, 500 P2d 457 (1972)

Right to judicial review of an administrative hearing was an adequate remedy at law, so mandamus would not be to quash service in that hearing. Phillips v. Layman, 15 Or App 107, 514 P2d 1352 (1973), Sup Ct review denied

Where relators alleged that denial of pretrial hearing prejudiced them in that: (1) they would be denied pretrial discovery of testimony of prosecution witness who refused to be interviewed and (2) denied pretrial opportunity to determine whether probable cause to require them to answer charge existed was not kind of prejudice which would render direct appeal inadequate remedy. State ex rel Automotive Emporium v. Murchison, 289 Or 265, 611 P2d 1169 (1980)

Where defendant had an adequate remedy in the ordinary course of the law by way of a request for transcript under ORS 138.500 (2) followed by a motion to supplement the record under ORAP 6.15, mandamus would not lie to compel trial court to grant defendant’s request for a transcript. State v. Montgomery, 294 Or 417, 657 P2d 668 (1983)

Mandamus relief is not available to putative father who challenges denial of pretrial motion for appointment and compensation of experts to conduct blood tests because direct appeal of adverse judgment, if any, is “plain, speedy and adequate remedy” at law. State ex rel Le Vasseur v. Merten, 297 Or 577, 686 P2d 366 (1984)

Where ability to obtain adjudication on merits is entirely within control of adverse party, plaintiff does not have plain, speedy and adequate remedy in ordinary course of law. State ex rel Dewberry v. Kulongoski, 220 Or App 345, 187 P3d 220 (2008), aff’d346 Or 260, 210 P3d 884 (2009)

Where circuit court determines on review of petition that relator has plain, speedy and adequate remedy at law, court is prohibited from issuing writ of mandamus. State ex rel Portland Habilitation Center v. PSU, 353 Or 42, 292 P3d 537 (2012)

Law Review Citations

15 EL 245 (1985)

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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