State ex rel. Maizels v. Juba

• Decision Date: 05 November 1969
• Parties: In the Matter of the Seizure of the Films Love Robots and Little Girls, and Two Posters and One Advertising Brochure. STATE of Oregon ex rel. Sol D. MAIZELS, Respondent, v. George E. JUBA, as District Court Judge, Appellant.
• Court: Oregon Supreme Court

Page 850

460 P.2d 850

254 Or. 323

In the Matter of the Seizure of the Films Love Robots and Little Girls, and Two Posters and One Advertising Brochure STATE of Oregon ex rel. Sol D. MAIZELS, Respondent, v. George E. JUBA, as District Court Judge, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 3, 1969.

Decided Nov. 5, 1969.

Jacob B. Tanzer, Asst. Chief Deputy Dist. Atty., Portland, argued the cause for appellant. With him on the briefs was George Van Hoomissen, Dist. Atty., Portland.

Marvin S. Nepom, Portland, argued the cause for respondent. With him on the brief were Paul R. Meyer, Leo Levenson, and Kobin & Meyer, Portland.

HOLMAN, Justice.

This is an appeal from the issuance of a peremptory writ of mandamus by the circuit court.

Petitioner operates a theater in Portland. He scheduled a two-week showing of two films entitled 'Love Robots' and 'Little Girls.' On the first day of the showing a deputy district attorney attended a performance. The deputy thereafter filed an affidavit and made application to a district judge for a search warrant to search petitioner's theater and to seize the films. The ground asserted as a basis for the warrant was the purported dissemination of obscene matter in violation of ORS 167.151. The police, on the second day of the showing, seized the films pursuant to the warrant without a prior adversary hearing. Petitioner was not arrested. Thereafter, petitioner filed with the district judge a motion to quash the warrant, to suppress the seized films as evidence, and for their return. The principal basis for the motion was his claim that before First Amendment material may be seized on the ground that it is obscene, there must be a prior adversary hearing on that issue. The motion was denied by the district judge, and petitioner then filed the mandamus proceeding in question in circuit court. A peremptory writ issued directing the district judge to quash the warrant and to return the films. The district judge appealed.

The question presented by the appeal is whether mandamus brought in the circuit court was a proper remedy to compel the district judge to vacate his ruling. The district judge contends that mandamus does not lie because the writ cannot be used to dictate the exercise of judicial judgment unless the issue is so clear as to reduce the judicial act to the quality of a ministerial one. He relies on numerous decisions of this court, including State ex rel. Harvey v. Malheur County Court, 54 Or. 255, 101 P. 907, 103 P. 446 (1909). This was a case in which the County Court of Malheur County refused to except the City of Vale from the application of a county prohibition law. In holding that mandamus would not lie to test the propriety of the county court's ruling, this court said at 259, 101 P. at 909:

'* * * In the present case the court was confronted with a delicate question of law. If the City of Vale was exempt, by the conditions of its charter, from the operation of the local option law, it was the duty of the court to make that exemption apparent in its order. If it was subject to the provisions of that law, it was its duty to make an order which would apply to the county as a whole. A question of law was before it to be decided, and, in passing upon it, the court acted just as much in a judicial capacity as we do in passing upon the same question on appeal. We think the court below was correct in holding that it had no power to compel the county court to amend its order on prohibition.'

He also relies on the following language from State ex rel. Coast Holding Co. v. Ekwall, 144 Or. 672, 681, 26 P.2d 52, 55 (1933):

'* * * There was also a dispute upon the question of whether service upon Smith, its president, by reason of his being in Oregon and transacting business for the corporation at the time the service was made, was valid. The determination of these questions required the exercise of judgment upon the part of the trial court in deciding whether the motion to quash should be overruled or sustained, and, in making such determination, the court was acting judicially and not performing a mere ministerial function. * * *.'

A no less august body than the United States Supreme Court has used the following similar language in Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218, 50 S.Ct. 320, 324, 74 L.Ed. 809 (1930):

'* * * Where the duty in a particular situation is so plainly prescribed as to be free from doubt and equivalent to a positive command, it is regarded as being so far ministerial that its performance may be compelled by mandamus, unless there be provision or implication to the contrary.* But where the duty is not thus plainly prescribed, but depends upon a statute or statutes the construction or application of which is not free from doubt, it is regarded as involving the character of judgment or discretion which cannot be controlled by mandamus. (* footnotes omitted).

The issue thus drawn is whether, where there is no dispute in the facts, mandamus will lie to decide in a certain way an especially complicated question of law, the answer to which is in extreme doubt and the solution of which requires the use of legal judgment and acumen. The Oregon statute on mandamus ORS 34.110, is as follows:

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

The statements of this court in its decisions concerning the use of mandamus have been fairly uniform. Generally, the court has said that when the facts are not in dispute and there is a clear rule of law requiring the matter to de decided in a certain way, mandamus will lie. It has also said that mandamus will not lie to control the exercise of discretion or judgment. While, at times, as previously demonstrated, the court has refused the use of mandamus because of difficult legal problems being involved, more frequently it has used the writ to decide problems where the law was far from clear and where the exercise of legal judgment was required for a solution. As an illustration, this court has often used the writ to decide difficult questions of law involving the adequacy of substituted service of summons. State ex rel. Carroll v. Redding, 245 Or. 81, 418 P.2d 846 (1966); State ex rel. Pardee v. Latourette, 168 Or. 584, 125 P.2d 750 (1942); State ex rel. Hupp, etc., Corp. v. Kanzler, 129 Or. 85, 276 P. 273 (1929); State ex rel. Sullivan v. Tazwell, 123 Or. 326, 262 P. 220 (1927). The cases in which the court has so used mandamus are not limited to those testing the adequacy of substituted service of summons. See the following cases where difficult questions of law have been decided in the interpretations of statutes and the constitution: State ex rel. Public Welfare Commission v. Malheur County Court, 185 Or. 392, 203 P.2d 305, 307 (1949); State ex rel. Pierce v. Slusher, 119 Or. 141, 248 P. 358 (1926); City of Astoria v. Cornelius et al., 119 Or. 264, 240 P. 233 (1925); Peterson v. Lewis, 78 Or. 641, 154 P. 101 (1915); Crawford v. School District No. 7, 68 Or. 388, 137 P. 217, 50 L.R.A.,N.S., 147 (1913); State v. Ware, 13 Or. 380, 10 P. 885 (1886).

It is plain, regardless of what this court has said to the contrary, that mandamus has repeatedly been used to require public officers, including inferior courts, to act in a certain way where the applicable law governing their actions was legitimately in dispute. There is ample authority elsewhere that justifies this use of the writ. F. Ferris, Extraordinary Legal Remedies § 210 (1926), has the following statement:

'Notwithstanding that courts will not grant mandamus to control discretion, the rule does not apply to preliminary questions of law. It applies only to the act to be commanded by the writ.* The character of a purely preliminary question, though judicial, does not test the right to mandamus because the decision of such a question is a mere incident leading up to the main function or act. (* footnotes omitted).

In Poucher v. Teachers' Retirement Board, 130 Misc. 896, 225 N.Y.S. 176, 178--179 (1927), the court used the following language:

'The sole question, then, is one of law, * * *.'

'* * * (R)espondent contends that mandamus will only lie where there is a clear legal right, and as an important question of law is involved, which admits of a reasonable doubt or controversy, the petitioner should be relegated to an action at law against the retirement board. There is no reason why difficult question of law cannot be determined upon this application, as well as in an action at law. The clear legal right referred to in the cases such as Matter of Whitman, No. 1, 225 N.Y. 1, 121 N.E. 479, means a right which is inferable as a matter of law from uncontroverted facts, regardless of the difficulty of the legal question to be decided. * * *.'

For similar language, also see Stewart v. Wilson Printing Co., 210 Ala. 624, 627--628, 99 So. 92, 96 (1924); Robinson v. Enking, 58 Idaho 24, 31--32, 69 P.2d 603, 606 (1937); Eberhardt Construction Co. v. Board of Com'rs of Sedgwick County, 100 Kan. 394, 396, 164 P. 281, 282--283 (1917); Cahill v. Mayor and City Council of Baltimore, 173 Md. 450, 455, 196 A. 305, 307 (1937); Perkins v. Burks, 336 Mo. 248, 254, 78 S.W.2d 845, 848 (1934); Fooshee v. Martin, 184 Okl. 554, 557, 88 P.2d 900, 903 (1939); State v. Town Council South Kingstown, 18 R.I. 258, 266, 27 A. 599, 602, 22 L.R.A. 65 (1893). Finally, the following language is found in 55 C.J.S. Mandamus § 53 (1948):

'A 'clear legal right,' within the meaning of the rule under consideration, means a...