ORS 34.740
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.

Source: Section 34.740 — Amendment of petition or action against public body when wrong remedy sought; effect of amendment on time limitations; attorney fees, https://www.­oregonlegislature.­gov/bills_laws/ors/ors034.­html.

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

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

§ 34.740’s source at oregon​.gov