Chapter 114 Oregon Laws 1999

Session Law

AN ACT

SB 395

Relating to transfer of habeas corpus proceedings; amending ORS 34.320, 34.340, 34.360, 34.365, 34.370, 34.700 and 34.712.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 34.320 is amended to read:

34.320. The circuit court of the judicial district wherein the party is imprisoned or restrained, and, if vested with power to exercise judicial functions, the county court and county judge of the county wherein the party is imprisoned or restrained, shall have concurrent jurisdiction of proceedings by habeas corpus, and said courts and judges may issue, hear and decide all questions arising upon habeas corpus. If a plaintiff has filed a petition in a court with jurisdiction over the proceedings, and the plaintiff is thereafter transferred to a place that is outside of the jurisdiction of that court, the court shall transfer the proceedings to the circuit court for the judicial district in which the party is imprisoned or restrained. If the court in which the petition was filed determines that by reason of the plaintiff's transfer the claims of the plaintiff do not require immediate judicial scrutiny, or are otherwise subject to dismissal, the court shall dismiss the petition.

SECTION 2. ORS 34.340 is amended to read:

34.340. The writ shall be allowed by the court or judge thereof upon the petition of the party for whose relief it is intended, or of some other person in behalf of the party, signed and verified by the oath of the [petitioner] plaintiff, to the effect that the [petitioner] plaintiff believes it to be true. The petition must be accompanied by a filing fee of $25.

SECTION 3. ORS 34.360 is amended to read:

34.360. If the challenge is to the authority for confinement, the petition shall state, in substance:

(1) That the party in whose behalf the writ is petitioned is imprisoned or restrained of liberty, the place where, and officer or person by whom the party is imprisoned or restrained, naming both parties if their names are known, or describing them if not known.

(2) That such person is not imprisoned or restrained by virtue of any order, judgment, decree or process specified in ORS 34.330.

(3) The cause or pretense of the imprisonment or restraint, according to the best knowledge or belief of the [petitioner] plaintiff.

(4) If the original imprisonment or restraint is by virtue of any order, warrant or process, a copy thereof shall be annexed to the petition, or it must be alleged that, by reason of the removal or concealment of the party before the application, a demand of such copy could not be made, or that the demand was made, and the legal fees therefor tendered to the person having the party in custody, and that a copy was refused.

(5) That the claim has not already been adjudged upon a prior writ of habeas corpus, to the knowledge or belief of the [petitioner] plaintiff.

SECTION 4. ORS 34.365 is amended to read:

34.365. (1) Any court of the State of Oregon may authorize the filing of a petition for a writ of habeas corpus by or on behalf of any person imprisoned or otherwise restrained of liberty by virtue of a charge or conviction of crime without payment of the filing fees therefor, if such person presents to the court or judge thereof satisfactory proof, by affidavit and as otherwise required by such judge, that the person is unable to pay such fees.

(2) Notwithstanding the fact that a court has authorized the filing of a petition without payment of the filing fee required by ORS 34.340, the fee may be drawn from, or charged against, the [petitioner's] plaintiff's trust account if the [petitioner] plaintiff is an inmate in a correctional facility.

SECTION 5. ORS 34.370 is amended to read:

34.370. (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 [petitioner] 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.

(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 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 to 34.730.

(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.

SECTION 6. ORS 34.700 is amended to read:

34.700. (1) If it appears that the party detained is imprisoned or restrained illegally, judgment shall be given that the party be discharged forthwith; otherwise, judgment shall be given that the proceeding be dismissed and the party remanded. No officer or other person is liable to any action or proceeding for obeying such judgment of discharge.

(2) The court shall include in the judgment an order that the defendant pay the attorney fees incurred by the petition, not to exceed $100, if:

(a) The court enters a judgment requiring that the [petitioner] plaintiff be discharged; and

(b) The court finds that the allegations or defenses in the return were frivolous.

SECTION 7. ORS 34.712 is amended to read:

34.712. In reviewing the judgment of any court under ORS 34.310 to 34.730, the Court of Appeals, on its own motion or on the motion of the [respondent] defendant, may summarily affirm, without oral argument, the judgment after submission of the appellant's brief and without submission of the [respondent's] defendant's brief if the court finds that no substantial question of law is presented by the appeal. Notwithstanding ORS 2.570, the Chief Judge of the Court of Appeals may deny or, if the [petitioner] plaintiff does not oppose the motion, grant a [respondent's] defendant's motion for summary affirmation. A dismissal of appeal under this section constitutes a decision upon the merits of the appeal.

Approved by the Governor April 23, 1999

Filed in the office of Secretary of State April 23, 1999

Effective date October 23, 1999

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