dismissing alternative writ that challenged the defendant judge’s denial of jury trial as of right to juvenile
How later courts described this case
- dismissing alternative writ that challenged the defendant judge’s denial of jury trial as of right to juvenile
Written by the judges who cited it.
The opinion
WARREN, J.,
dissenting.
I agree with the majority that this is a proper case for mandamus, but, for the reasons that I discussed in my dissent in Weidner v. Armenakis, 154 Or App 12, 20 , 959 P2d 623 (1998), I dissent from its decision affirming the dismissal of the writ. I write to explain why I believe mandamus to be a proper way to reach the merits.
The issue in this case is whether the Board of Parole acted properly when it extended relator’s parole release date. If the Board acted improperly, relator had an absolute right to release on his original parole release date. ORS 144.245(1). 1 In that situation, the Board had a mandatory *724 duty to order his release. The Board’s sole authority for extending relator’s release date was its conclusion that he had a present severe emotional disturbance such as to constitute a danger to the health or safety of the community. See ORS 144.125(3). Relator argues that the Board acted improperly when it based its decision on that statute, because it relied on all the evidence before it rather than limiting its inquiry to whether there was a psychological or psychiatric diagnosis that reached that conclusion, as °the statute requires.
For the reasons that I explained in my dissent in Weidner , I agree with relator’s interpretation of the statute. The majority in that case reached a different conclusion. That does not affect relator’s right to raise the issue by mandamus. If he were correct, the Board would have a mandatory duty to release him. That is precisely the situation in which mandamus is appropriate: relator seeks an order that the Board perform its mandatory duty. The issue in the case, thus, is whether relator is correct. If he is, the trial court should have issued the peremptory writ; if he is not, the trial court correctly dismissed the alternative writ. That the majority has rejected relator’s argument does not mean that he followed the wrong method of seeking relief.
When the Supreme Court concludes that a defendant in a mandamus proceeding does not have the mandatory duty that the relator claims, it does not decide that the issue is not a proper subject for mandamus; it simply dismisses the alternative writ. See, e.g., State ex rel Upham v. McElligott, 326 Or 547, 553 , 956 P2d 179 (1998) (dismissing alternative writ that challenged the defendant judge’s denial of jury trial as of right to juvenile). That is the proper result in this case, assuming that the majority’s decision on the merits of relator’s claim is correct.
Because I disagree with that decision, I dissent.
Edmonds, Armstrong and Wollheim, JJ., join in this dissent.
As relevant, ORS 144.245(1) provides that ‘Twlhen the State Board of Parole and Post-Prison Supervision has set a date on which a prisoner is to be released upon parole, the prisoner shall be released on that date” unless the prisoner remains subject to an unexpired minimum term. (Emphasis supplied.)