State ex rel. Automotive Emporium v. Murchison
| Decision Date | 23 June 1980 |
| Citation | 616 P.2d 496,289 Or. 673 |
| Parties | STATE of Oregon ex rel. AUTOMOTIVE EMPORIUM, INC., Plaintiff-Relator, v. John J. MURCHISON, Judge of the Circuit Court of the State of Oregon for Multnomah County; and Harl Haas, District Attorney for Multnomah County, State of Oregon, Defendants. STATE of Oregon ex rel. Kenneth O. TROW, Plaintiff-Relator, v. John J. MURCHISON, Judge of the Circuit Court of the State of Oregon for Multnomah County; and Harl Haas, District Attorney for Multnomah County, State of Oregon, Defendants. SC 26477, SC 26478. |
| Court | Oregon Supreme Court |
Charles J. Merten, Portland, for the petition. With him on the brief was Merten & Salveit, Portland.
James M. Brown, Asst. Atty. Gen., Salem, contra. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Plaintiff has petitioned for rehearing, asserting that our holding that "Direct appeal is an adequate remedy unless the relator would suffer a special loss beyond the burden of litigation by being forced to trial" is inconsistent with prior cases. We did not attempt an exhaustive review of all mandamus caselaw, but this supplemental opinion reviewing some of the cases upon which it relies may be helpful in alleviating any confusion such as that embodied by the plaintiff's contention.
First, plaintiff cites State ex rel. Ricco v. Biggs, 198 Or. 413, 255 P.2d 1055 (1953), for its implication that if constitutional rights are involved, waiting for an appeal is not an adequate remedy. The comment was correct in the context of the Ricco case, but any expansive implication was superseded by our more recent opinion in State ex rel. Maizels v. Juba, 254 Or. 323, 460 P.2d 850 (1969), upon which our opinion in this case relied. Maizels involved constitutional rights and it was held that a direct appeal was an adequate remedy. We cited Ricco in footnote 5, where we observed that an exception to the rule exists in cases involving wrongful assertion of jurisdiction or venue.
Petitioner also points to Kirschbaum v. Abraham, 267 Or. 354, 517 P.2d 272 (1973), and Henderson v. Smith, 282 Or. 109, 577 P.2d 504 (1978). They are not mentioned in our opinion, but they are not inconsistent with it. In those cases, mandamus was used to require a municipal court judge to advise defendants of their rights to remove the cases to district court. The cases are therefore consistent with the statement of exceptions to the rule in footnote 5. Indeed, they represent a third category within the class of exceptions in the footnote regarding submission to trial in the wrong court.
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Longo v. Premo
...to them on direct appeal.” State ex rel. Automotive Emporium v. Murchison, 289 Or. 265, 268–69, 611 P.2d 1169, reh'g den.,289 Or. 673, 616 P.2d 496 (1980); see also Frease v. Glazer, 330 Or. 364, 4 P.3d 56 (2000) (writ of mandamus issued directing trial court to vacate order compelling in c......
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Gollersrud v. LPMC, LLC
...is a plain, speedy, and adequate remedy. See State ex rel Automotive Emporium v. Murchison, 289 Or. 265, 268-69, 611 P.2d 1169, reh'g den, 289 Or. 673, 616 P.2d 496 (1980). However, when a discovery order erroneously requires disclosure of privileged communications, we have held that direct......
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Van Brumwell v. Premo, (CC 12C11135
...restored to [him] on direct appeal.” State ex rel. Automotive Emporium v. Murchison, 289 Or. 265, 269, 611 P.2d 1169, reh'g den.,289 Or. 673, 616 P.2d 496 (1980); see also State ex rel. Johnson v. Richardson, 276 Or. 325, 555 P.2d 202 (1976) (mandamus appropriate remedy when trial judge had......
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State v. Pelham
... ... See State ex rel. Juvenile Department v. M.T., 321 Or. 419, 426, 899 P.2d 1192 (1995) ... State ex rel. Automotive Emporium v. Murchison, 289 Or. 265, 268-69, 611 P.2d 1169, reh'g den. 289 ... ...