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Dwayne B.
Dwayne B., Attorney
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Experience:  Began practicing law in 1992
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Can a writ of mandamus be used in the state of Oregon to overturn

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Can a writ of mandamus be used in the state of Oregon to overturn an ileagal order issued by circuit judge in a one sided proceeding? Said order was obtained in part by perjury.

Dwayne B. :

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

Dwayne B. :

What was the order? Writs of Mandamus are very limited as to the things they can be used for.

Customer:

Order to show cause why the body of my son Omer Aaronson should not be disinterred.......

Dwayne B. :

That is unlikely to be something that could be addressed by Mandamus.

Dwayne B. :

You would have to do a direct appeal of that.

Dwayne B. :

The reason is that a Mandamus is only appropriate when an official is doing what are known as "mandatory" duties.

Dwayne B. :

In this case it is more of a disagreement with the decision that was issued by the judge and there is nothing that requires him to rule in your favor.

Customer:

Order to show cause why the body of the decedent Omer Aaronson (my son) should not be disinterred..... The Order is dated 10/10/13, I was served with the order on 10/12/13 and I am ordered to appear on 10/14/13 at 11:00AM. ORS 97.220 states among other things that a 60 day notice is required.

Customer:

Accroding to Oregon Rules, such an order by a circuit Judge in non-appealable, so a writ of Mandamus may be the only option

Dwayne B. :

Sorry, lost connection for a moment.

Dwayne B. :

The order of setting is a different matter.

Dwayne B. :

You can mandamus on an order of setting that violates the rules.

Dwayne B. :

First you would need to file an Objection to the setting and file a Motion for Continuance.

Customer:

What is setting?

Dwayne B. :

The 60 day notice is the notice required between the time the action is filed and before the court hears it. The date the court hears the motion and rules on it is known as a setting.

Dwayne B. :

You should be able to successfully mandamus an insufficient amount of time to prepare for trial.

Customer:

What is an objection to the setting?

Customer:

What is a motion for continuance?

Dwayne B. :

An objection to the setting is a document filed telling the judge that you didn't have sufficient notice and don't want it heard on that date and that you want the required 60 day notice. A motion for continuance is a request that the court move the date.

Dwayne B. :

Do you have an attorney?

Customer:

Should the petition for a writ of mandamus be presented to the Oregon Court of Appeals, or to the Circuit Court?

Dwayne B. :

You present it to the court above the one who issued the order.

Customer:

I don't have an attorney and I can't afford one.

Dwayne B. :

You may want to go and speak to legal aid and see if you can get some assistance.

Dwayne B. :

Mandamus actions are extremely difficult.

Dwayne B. :

And if you make any mistakes at all it will be denied automatically.

Customer:

Can you point me to an example for such a pettition?

Dwayne B. :

Unfortunately, I don't know of a correct one available online. You can go to the clerk for the Court of Appeals and look at their files. You can get a copy of any that have been filed and use those as an example.

Customer:

Were should the motion for continuance and the Objection to the setting be filed?

Dwayne B. :

In the court where the case for disinterrment is pending.

Dwayne B. :

You need to do some legal research on these issues and familiarize yourself with the court process before you try and do this yourself.

Dwayne B. :

Let me give you a couple of links:

Dwayne B. :

First, there is a good, inexpensive book on doing case law research at this link

Dwayne B. :

Next, there is a website at http://courts.oregon.gov/ojd/pages/index.aspx that explains how the courts work, etc.

Dwayne B. :

And the rules of civil procedure are at http://legacy.lclark.edu/~ccp/Oregon_Rules_of_Civil_Procedure.htm

Dwayne B. :

That will be enough to get you started

Customer:

Thanks

Dwayne B. :

I have to step away, I'll be back in just a few minutes please wait here in chat

Dwayne B. :

I'm back

Dwayne B. :

Did you have any additional questions?

Dwayne B. :

You also need the Oregon Rules of Appellate Procedure which you can find at http://www.ojd.state.or.us/web/ojdpublications.nsf/Files/2013_ORAPs.pdf/$File/2013_ORAPs.pdf

Dwayne B. :

Are you there?

Customer:

yes

Dwayne B. :

All of those materials should give you lots of stuff to read through and they contain all of the rules.

Customer:

I have a lot of reading to do between now at 11:00AM tomorrow. Please help setting the priorities.

Dwayne B. :

I think the court website has some forms on it but not a mandamus form.

Dwayne B. :

Start with the Rules of Civil Procedure regarding Motions for Continuance and then read the book on legal research and do legal research on motions for continuance based on lack of required notice.

Customer:

What do I do if the circuit court rejects my motion and objection?

Dwayne B. :

Once you get through that (which will probably take a few hours) then start on mandamus.

Dwayne B. :

You will have to have the hearing and then appeal or file a Motion for New Trial.

Dwayne B. :

I think the court's order regarding disinterrment should be appealable.

Customer:

Do I need to have a notice of intent to appeal ready, in case everything goes bad at the Circuit Court?

Dwayne B. :

No, you have a certain amount of time to appeal (about 30 days) before the order becomes final.

Customer:

By by than, my Son's body whould be removed!

Dwayne B. :

No, they shouldn't remove it until the order becomes final.

Dwayne B. :

You can also look up the part about orders becoming final.

Customer:

OK

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