State v. Etling , 256 Or. 33 ( 1970 )

470 P.2d 950 (1970)

The STATE of Oregon, Respondent,
v.
The Honorable Carl ETLING, Judge of the District Court of the State of Oregon, for the County of Multnomah, Appellant.

Supreme Court of Oregon.

Argued and Submitted December 10, 1969. Decided June 17, 1970.

Leo Levenson, Portland, argued the cause and filed a brief for appellant.

Billy L. Williamson, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty.

Before PERRY,^[*] C.J., and McALLISTER, SLOAN, O'CONNELL, DENECKE, and HOLMAN, JJ.

McALLISTER, Justice.

This is an appeal from the decision of the Circuit Court for Multnomah County in a review proceeding. The case arose out of a criminal prosecution in district court. Judge Etling, the appellant in this case, in his capacity as Presiding Judge of the Multnomah County District Court, assigned the case of State v. Jimmie Wayne Hall to another district judge for trial. The state interposed a motion for change of judge supported by an affidavit stating that the judge to whom the case had been assigned was prejudiced "against the State of Oregon and its interests." Pursuant to the procedure outlined in State ex rel. Lovell v. Weiss, 250 Or. 252, 430 P.2d 357, 442 P.2d 241 (1968), Judge Etling held an evidentiary hearing to determine whether the motion and affidavit had been filed in good faith. He found that the evidence of good faith produced by the state was not sufficient to meet the test expressed in Lovell, and denied the motion for change of judge. Thereupon the state petitioned the circuit court for a writ of review. The writ issued from that court and a return was duly filed. Having examined the record, the circuit court found that the denial of the motion was "erroneous and arbitrary" and directed Judge Etling to grant the motion. Judge Etling has appealed.

The issue argued by the parties in this court was whether the scope of the writ, as set forth in ORS 34.040, would permit review of a finding of fact — in this case, that the motion and affidavit were not filed in good faith. We do not reach that question, however, because we think it is clear that the writ of review is not available to the state in this case.

The writ of review, provided for in ORS 34.010-34.100, is "the writ heretofore known as the writ of certiorari." ORS 34.010. Its use in criminal cases has been abolished by statute. ORS 138.010 provides as follows:

"Writs of error and of certiorari in criminal actions are abolished. The only mode of reviewing a judgment or order in a criminal action is that prescribed by ORS 138.010 to 138.300."

The only exception to the foregoing statutory rule is found in ORS 157.070, which provides:

"No provision of ORS 157.010 to 157.065, in relation to appeals or the right to appeal in criminal actions, shall be construed to prevent either party in a justice's court from having an interlocutory order which involves the constitutionality of a statute or of the proceedings which may affect the final judgment or the judgment reviewed in the circuit court for errors in law appearing upon the face of the judgment or the proceedings connected therewith, as provided in ORS 34.010 to 34.100."

See Bechtold et al. v. Wilson et al., 182 Or. 360, 379-380, 186 P.2d 525, 187 P.2d 675 (1947); Davenport v. Justice Court, 101 Or. 507, 511, 199 P. 621 (1921).

The provisions of ORS 157.070 also apply to criminal proceedings in district courts. ORS 157.080. They permit review by the circuit court only of (1) an interlocutory order which involves the constitutionality of a statute or of the proceedings which may affect the final judgment, or (2) the judgment. The denial of the motion for change of judge in this case does not come within either category. No constitutional question is involved and no judgment has been entered. Were the state to seek review after a judgment of acquittal, severe double jeopardy questions would arise. It is doubtful that such a procedure would be constitutional.

We think that the state has chosen the wrong means to test the denial of its motion and should have sought a writ of mandamus from the circuit court instead. Questions raised by the denial of motions for change of judge have been decided by this court in mandamus proceedings. See, e.g., State ex rel. Hudson v. Weiss, 237 Or. 358, 391 P.2d 608 (1964); State Capitol Reconstruction Commission v. McMahan, 160 Or. 83, 83 P.2d 482 (1938). See, also, State ex rel. Johnson v. Circuit Court, 114 Or. 6, 13, 233 P. 563, 234 P. 262 (1925). In State ex rel. Lovell v. Weiss, supra, the writ was allowed in a case where good faith was the issue.

Because the statutes do not permit the use of the writ of review in the circumstances of this case, the decision of the circuit court is reversed.

NOTES

[*] Perry, C.J., retired June 1, 1970.