Opinion
SC 26477, SC 26478
Submitted on petition for rehearing June 23, 1980.
Original proceeding in mandamus. 289 Or. 265, 611 P.2d 1169(1980).
Former opinion filed June 3 ( 289 Or. 265, 611 P.2d 1169), rehearing denied September 23, 1980.
In Banc
Charles J. Merten, Portland, for the petition. With him on the brief was Merten Salveit, Portland.
James M. Brown, Assistant Attorney General, Salem, contra. With him on the brief were James A. Redden, Attorney General, and Walter L. Barrie, Solicitor General, Salem.
TANZER, J.
Rehearing Denied.
LENT and LINDE, JJ., would allow rehearing.
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 The comment was correct in the context of the Ricco case, but any expansive implication was superseded by our more recent opinion in State ex rel Maizels v. Juba, 254 Or. 323, 460 P.2d 850 (1969), upon which our opinion in this case relied.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.
Plaintiff also cites State ex rel Drew v. Steinbock, 286 Or. 461, 595 P.2d 1234 (1979), and State ex rel Smith v. Murchison, 286 Or. 469, 595 P.2d 1237 (1979), both of which dealt with the duty of a circuit judge to order a recording of grand jury testimony. In neither case did we discuss the issue of the propriety of mandamus as a remedy. Those cases are authoritative on the substantive law issues which they address, but not as to the issue not reached, the propriety of mandamus.
Accordingly, we conclude that our opinion was not a departure from preexisting caselaw.
Rehearing denied.
LENT and LINDE, JJ., would allow rehearing.