Mouktabis v. Oregon City Police Dept. ( 2022 )

114
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1)
Submitted July 1, reversed and remanded December 7, 2022
Nour Eddine MOUKTABIS,
an individual,
Plaintiff-Appellant,
v.
OREGON CITY POLICE DEPARTMENT,
Defendant-Respondent.
Clackamas County Circuit Court
21CV20555; A177847
Kathie F. Steele, Judge.
Nour Eddine Mouktabis filed the brief pro se.
No appearance by Oregon City Police Department.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PAGÁN, J.
Reversed and remanded.
Nonprecedential Memo Op: 323 Or App 114 (2022) 115
PAGÁN, J.
Relator appeals a general judgment denying his
motion for writ of mandamus to compel defendant to “enforce
the law and protect Relator from criminal activity perpe-
trated against him.” The trial court denied the petition, cit-
ing ORS 34.020, but without further explanation or findings.
We agree with relator that the trial court erred by entering
judgment based on ORS 34.020. We reverse and remand.
The trial court cited ORS 34.020 as justification
for denying the petition. However, ORS 34.020 generally
addresses writs of review, not writs of mandamus. See ORS
34.020 (explaining who may seek review of any “process or
proceeding before or by any inferior court, officer, or tribu-
nal”); Mattila v. Mason, 287 Or 235, 240-41, 598 P2d 675(1979) (distinguishing writs of review and writs of manda-
mus). Finding nothing in the record to give us a reason to
believe the court simply made a typographical error, we con-
clude that the trial court erred.
Although relator appears to argue that the trial
court was obligated by ORS 34.130(3) to issue the writ, that
is not the case.
“ORS 34.130(3) sets out the sequential, procedural
parameters for a circuit court’s allowance of a writ of man-
damus, but does not operate as a substantive requirement
that the circuit court must allow and direct issuance of
an alternative writ on the filing of a petition. Instead, the
overarching substantive requirements for issuance of a
writ—either alternative or peremptory—are set out in ORS
34.110, including the requirement that ‘[t]he writ shall not
be issued in any case where there is a plain, speedy and
adequate remedy in the ordinary course of the law.’ ”
State ex rel Portland Habilitation Center v. PSU, 353 Or 42,
60, 292 P3d 537 (2012); see also State ex rel Young v. Keys, 98
Or App 69, 72, 778 P2d 500 (1989) (“A relator must establish
that the defendant has an official duty and that the relator
has a corresponding right to performance of that duty.”).1
1
As we recently explained, mandamus is used to compel a government offi-
cial to perform a legal duty to which the petitioner has a clear legal right to
performance of that duty. Marteeny v. Brown, 321 Or App 250, 278, 517 P3d 343
116 Mouktabis v. Oregon City Police Dept.
In other words, the relator must demonstrate a legal right
to the requested relief and that no other adequate remedy
is available at law, ORS 34.110, and follow statutory proce-
dure, ORS 34.130.
Reversed and remanded.
(2022). Mandamus is available “when the law requires a particular decision.”
Dreyer v. PGE, 341 Or 262, 276, 142 P3d 1010 (2006).