State ex rel. Bushman v. Vandenberg
| Decision Date | 17 November 1954 |
| Citation | 203 Or. 326,276 P.2d 432 |
| Parties | STATE of Oregon ex rel. Andrew Joseph BUSHMAN, Petitioner, v. Honorable David R. VANDENBERG, Circuit Judge, Respondent. |
| Court | Oregon Supreme Court |
George H. Proctor, Klamath Falls, for petitioner.
No appearance for respondent.
The State of Oregon on the relation of Andrew Joseph Bushman has presented in this court an original petition for an alternative writ of mandamus against the Honorable David R. Vandenberg, circuit judge. Bushman was indicted by the grand jury of Klamath County. He was duly arraigned and counsel was appointed for him. He then filed in the criminal case a motion to set aside the indictment. Thereafter the prosecutor filed a motion for a change of judge, pursuant to ORS 14.220 and 14.230. Paragraph V of the petition for the writ reads as follows:
'That on the 12th day of October, 1954, defendant disallowed plaintiff's objection to said application and refused and still refuses to hear plaintiff's motion to set aside indictment No. 54-48C and to proceed further with the said criminal action, although it was and is the duty of defendant to proceed with the determination of the said criminal action which is now pending.'
A memorandum of authorities is presented in support of the contention that the statute in question is unconstitutional. It provides, in substance, that no circuit judge shall sit to hear or try any suit, action, matter or proceeding when an application in writing requesting a change of judge shall have been filed as prescribed by law. Under the wording of the statute no showing of bias or prejudice is required in order to disqualify a judge.
If this matter were properly before us, a serious question of constitutional law would be involved, but we are of the opinion that we should not decide that issue upon the meager record now presented. In the petition for the writ we are told only that some objections of unknown tenor were 'disallowed' by the judge, and that he refused and still refuses to hear Bushman's motion to set aside the indictment. The petition fails to set forth the objections made by the petitioner to the motion for change of judge. It also fails to set forth whether the court allowed the application for change of judge, or what, if any order or orders in the matter were made by the judge. Such application recited that it was made pursuant to ORS 14.220 and 14.230. If it was allowed by the judge, it may be that the constitutional...
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...trial court still violated the statute. The case was reversed and remanded for reinstatement of the judgment. State ex rel. Bushman v. Vandenberg, 203 Or. 326, 276 P.2d at 432, 280 P.2d 344 (1955), was a mandamus action involving a statute which provided for removal of judges at will. The c......
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