*1 Argued instructions remanded with reversed and March 5, 1969 writ dismiss November Respondent, v. MAIZELS, STATE ex rel Appellant. JUBA, P460 2d 850 *2 Deputy Jacob B. Tanser, Assistant Chief District Attorney, argued appellant. Portland, the cause for George With him on the briefs was Van Iioomissen, Attorney, District Portland. Nepom, argued
Marvin S. Portland, cause for respondent. Meyer, With him on the brief were Paul R. Meyer, Leo and Levenson, Kobin & Portland. HOLMAN, J. peremp-
This is an from the issuance a tory writ of mandamus the circuit court. operates
Petitioner a theater in Portland. He showing scheduled a two-week of two films entitled day and “Love Robots” “Little Girls.” theOn first showing deputy attorney a district attended a performance. deputy The thereafter filed an affida- application judge vit and made to district for a petitioner’s search warrant to search theater and to ground films. The asserted as a seize basis for purported ivas the the warrant dissemination of ob- police, violation of matter ORS 167.151. scene The showing, films day seized on the second adversary prior pursuant without to the warrant hearing. Thereаfter, was not arrested. Petitioner judge to a motion with the district filed suppress quash films as the seized warrant, principal The basis for their return. evidence, Amend- his claim that before First for the motion was ground that it ment material be seized on the hearing prior adversary there must be a obscene, by the district issue. The motion was denied pro- judge, petitioner then filed the mandamus ceeding peremptory question in A circuit court. judge quash directing writ the district issued judge warrant and to return the films. The district appealed. question рresented by whether brought proper circuit court was a in the compel judge his the district to vacate rul- *3 judge
ing. The district contends that mandamus does not lie because the writ cannot be used to dictate the judicial judgment unless exercise of the issue is so judicial quality clear as to reduce the act to the of a ministerial one. He relies on numerous decisions of including County rel court, this State ex v. Malheur P P Court, 54 Or 103 446 This County in was a case which the of Court Malheur City County except the refused to Yale from the county prohibition application holding of a lav/. In propriety that mandamus would not lie to test the county ruling, said at the court’s this court 259: * “* * present case the the court was con- question with a delicate of law. If
fronted the exempt, City the was conditions of of Yale its operation option from the the local charter, law, duty exemp- to make the of the court that it was subject apparent it to the tion in its If was order. duty provisions its to make of that it was law, county apply a whole. as order which would question and, was it to be decided, A of law before just passing upon the court acted as much it, in passing upon judicial capacity do in in the same as we a appeal. think the court on We holding power that it had no was correct in below county compel court to amend its order on to the prohibition.” following language relies from State
He also
(1933):
Ekwall,
ex rel
but statute or statutes the con- application or of which is not struction free from regarded involving is as it character doubt, of controlled judgment cannot be which discretion or omitted). (footnotes by mandamus.” there where whether, drawn is issue thus The to decide will lie dispute mandamus facts, in the no complicated especially way an in a certain and the doubt is in extreme to which of the answer law, judgment legal requires of the use which solution of Oregon mandamus, OES statute on and acumen. is as follows: 34.110, any may be issued to “A writ of mandamus * * * compel perform court,
inferior enjoins, specially as which the law ance of an act a * * * duty resulting but office, from an * * * may require though court, such writ * ® * judgment, proceed to or its to exercise * * * any discharge functions, of of its the it shall not judicial discretion. The writ control * *ÍS plain, where there be issued shall not speedy ordinary adequate in the course the law.” of this court its decisions con- The statements fairly cerning mandamus have been uni- the use of Generally, the court has said that when the form. dispute and there is a clear rule of not in facts are requiring matter be decided in a certain law way, lie. It has also said that manda- will the exercise of not lie to control discretion will mus previously judgment. times, at demon- While, or has refused the use of mandamus court strated, legal problems being difficult involved, because prob- frequently it has used the writ to decide mоre far the law was from clear and where the where lems required legal judgment was for a solu- exercise this court has illustration, often used the As an tion. questions involving difficult of law decide writ to adequacy service of of substituted summons. State
338 Redding,
ex rel
P2d
Carroll
245 Or
418
846
81,
(1966);
Latourette,
State ex rel v.
168
125
584,
Or
(1942);
Hupp
Corp.
P2d 750
State ex rel
etc.
v. Kanz
(1929);
ler, 129
P
85,Or
276
273
State ex rel Sulli
(1927).
van
Tazwell,
123
262 P
326,
Or
220
cases which the court has so used mandamus are not
testing
adequacy
limited to those
of substituted
following
service of summons. See the
cases where
questions
difficult
of law have been decided in the
interpretations of statutes and the constitution: State
County
ex rel v. Malheur
Court, 185
203
392,
Or
P2d
(1949);
305
State ex rel Pierce v.
119
Slusher,
Or 141,
(1926); City
P248
Astoria v. Cornelius et al,
(1925);
240 P
264,
Or
Peterson v. Lewis, 78
(1915);
641,
Or
It is of what this court has said contrary, repeatedly that mandamus has been require public including used to officers, inferior way applicable courts, to act in a certain where the governing legitimately law their actions was in dis pute. ample authority justi There is elsеwhere that fies Extraordinary this use of the writ. F. Ferris, Legal (1926), § 210 following Remedies has state ment :
“Notwithstanding grant that courts will not mandamus to control discretion, the rule does not apply preliminary questions applies of law. It only to the act to be commanded the writ.* The purely preliminary question, though character of a judicial, right does not test the to mandamus be- such cause the decision of is a mere leading up incident to the main function or act.*” (*footnotes omitted). Retirement 130 Misc Board,
In Poucher v. Teachers’ (1927), used the the court 225 NYS 178-79 following language: * * question, *.” law,
“The sole is one of then, “* * * [B]espondent that mandamus contends legal right, only will is a clear lie where there important question which law is involved, as an admits of a reasonable doubt or controversy, the *6 relegated to an action at law should be against is no reason the retirement board. There why upon questions law cannot be determined difficult application,
this as well as in an action at legal right clear referred to in the cases law. The No. 225 Whitman, 1, 1, such as Matter of .N.Y. right a which is 479, 121 N.E. means inferable as a matter of law from uncontroverted re- facts, difficulty legal question gardless of the of the ** *.” be decided. language, also see For similar Stewart Wilson (1924); Printing Co., 624, 627-28, 210 Ala 99 So 96 92, Enking, Idaho P2d 24, Robinson v. 58 69 31-32, 603, v, Sedgwick County, (1937); Co. 606 Construction 100 (1917); Mayor P 281,282-83 394,396, 164 Kan Cahill City Baltimore, 173 Md 450, 455, 196 Council of (1937); Burks, Perkins v. 336 Mo 248, 254, A 307 305, (1934); 845, v. Martin, Fooshee 184 78 SW2d Okla (1939); P2d State v. Town Coun Kingstown, RI 27 A 258, 266, 599, 602, cil South Finally, following language TEA (1948): § Mandamus 53 in 55 CJS found legal right,’ meaning within the ‘clear “A right clearly means a consideration, under the rule by, granted right which is in, law;* or founded law from as a matter of uncontroverted inferable facts tion difficulty legal ques- regardless of the * * (*footnote omitted). *.” be decided. difficulty appears in the case It that much of the law the use the terms “discretion” revolves around judicial “judgment”; case of a i.e., officer, “judicial “judicial from discretion” as differentiated judgment” “acting judicially.” They or have been con interchangeably. fused and used “Discretion” refers power privilege unhampered or to act legal rule. It describes a situation where a choice can among any action, be made several courses of one of legally permissible subject which is and not to review. any mandamus such a situation or other method of present inappropriate. review is case does not pose such a Petitioner either is entitled situation. quashed property have the warrant and his returned only legally permissible he There is one or is not. an “judgment” swer. The exercise of means the forma opinion concerning something by tion of an exerсis ing including courts, it. one’s mind Some this interchangeably at used the terms times, court, have, erroneously have said that therefore, and, questions decide difficult will not lie to of law be judgment, judicial the exercise of or cause official, necessary *7 was for their solution. State ex rel Ricco Biggs, P2d 413, 422, 1055, 38 ALR2d 198 Or (1953); Ekwall, ex rel Or State 26 P2d County (1933); ex rel Malheur Court, and State (1909). P 907, 103 P 258, 101 Or apparent that in a It is also mandamus context, legal right” law” and “clear rule of “clear have been erroneously at times to describe a used situation where dispute proper legal theory the no as to can be there right where a a situation is than rather inferable as law from uncontroverted of facts. a matter See supra, Retirement Board, Teachers’ Poucher and §53 We are now Mandamus satis- 55 CJS proper mandamus case, in an otherwise fied that questions disputed and difficult used to decide law. requirement for brings additional us to the
This that there be no mandamus, writ of use of the the ordinary adequate “plain, speedy in the supra. is no There 34.110, law.” ORS of the сourse amounts in this case effect of its use that the doubt legal ques- important interlocutory appeal of an to an arising any proceeding out criminal involved tion showing raises the films. This of the of the subsequent appeal right from a con- to an whether the remedy. adequate speedy Petitioner is a viction urges First Amend- He that a it is not. that claims amounting right in a manner been violated ment has censorship the prepublication and, therefore, use to argues justified. that the dissemi- is He of mandamus showing by films informаtion nation of if and, their seizure foreclosed has been ultimately be correct in his contention proven illegal, the use of mandamus will was seizure that showing, resumption of their thus permit earlier an right only petitioner’s to show the film protecting not right public’s it. to see but average
Experience that the criminal case indicates brought in three months Multnomah trial County. ‹ proceed disposition of this mandamus days. Presuming level took 18 ing court circuit at the from a this court conviction would has same time as from consumed have proceeding, disposition manda saving approximately time in a net result mus could ‹ Fifteenth Relating Report to Judicial Administra Annual Oregon (1968). Courts of in the tion
2yz practical As a trial record months. the matter, ordinarily transcript from a conviction includes a testimony, normally and such a record takes more time prepare pro- to than does record a mandamus ceeding. saving by way the time Therefore, manda- may considerably mus more than months. 2% deciding proceeding In if a in the nature оf an interlocutory appeal by should be allowed, whether way of mandamus or courts otherwise, must balance judicial peti considerations of administration with remedy. tioner’s choice of a One consideration is litigation expense whether or not more parties likely well as on burden the courts are interlocutory appeals. result from is a There differ using ence between mandamus to decide the basic dis using pute parties between the it to decide an im portant possibly but nonconеlusive issue in a broader controversy. The basic is whether or not ruling violated the criminal law. The concerning validity of the seizure of petitioner’s may may prose films or not be fatal to the depending way ruling cution, on which is made; ruling against depending if and, the state, also peti the other evidence the state have of guilt. strictly speaking, is it, tioner’s no event con guilt clusive on the ultimate issue of or innocence. present magistrate’s if the case, In the refusal to ruling quash by the warrant is a that must be tested judgment legаlity from a conviction, might never of the seizure arise in this court. There opportunities litigation three for the would be to be disposed 1) of at the trial otherwise level: the fail- grand jury 2) granting indict; ure of the of a quash the evidence the trial motion court; and jury Any 3) to convict. failure one of these *9 restoration to peti- would result in the dispositions the state would by tioner his and no films, appeal of lie. would be much faster Such a disposition manda- more than a of disposition by way effective mus the route. always go would almost appellate which with case
A situation almost identical the present occurs when searches and seizures the propriety tested in the face of claimed Fourth Amendment vio- lations in which there is no the dispute concerning In such state, facts. in this defendants have situations, resorted to an a appeal lower court’s protest ruling on the of the seizure. propriety We how of no in- stance where this court has such a permitted test by of mandamus. way Similarly, mandamus has not been avаilable to test the of a trial court’s propriety ruling on demurrer that an indictment is sufficient. The liti- gation continues and the is tested ruling by if results. If conviction there is no the conviction, issue In a criminal moot. litigation context, an has heretofore been considered an adequate remedy in sim- ilar situations. we believe the addition, present use of manda-
mus detrimental would be to a prompt trial. The ac- of justice may be complishment defeated by delay of the ultimate trial of the case until an issue of law has been decided which will almost certainly be ap- Court. The Supreme pealed delay caused by the is a present appeal graphic illustration. Also, it must that mandamus, remembered if used in this man- sword. If two-edged can be ner, petitioner is per- use mandamus to test mitted to propriety ruling, fairness, it is magistrate’s difficult to say not also do state so if the ruling is it. adverse use of
Petitioner’s mandamus in the present case securing return of means him no would afford promptness him to to allow his film with sufficient peti- showing. The state his two weeks’ resume concerning litigating First it. The sole tioner are still if suc- mandamus, the use of Amendment effect of by four months hasten three or would be to cessful, eventually re- time at which the could showing particular copy film. sume the of that by possible benefits to be bestowed reason to are too minimal to constitute sufficient testing legal- methods of deviate from established ity activity police of similar in criminal cases.- legislature by stat
This court and the decision *10 long regarding ute have a record of the device of an interlocutоry Dlouhy appeal with disfavor. See Simpson (1967), Co., Timber 247 Or P2d 846 and cases and statutes cited therein. the district
Petitioner filed a motion to dismiss judge’s appeal. The motion was denied with leave petitioner’s to renew the motion in brief and oral argument. Petitioner claims that this court does not jurisdiction have of the because the district judge petitioner failed to name in his notice of 19.029(2). in conformance with title ORS The of the petitioner’s case contained in the notice did include compliance namе. We believe this was sufficient with possibly the statute. No one could have been misled. judgment The of the trial court is reversed and remanded with instructions to dismiss the writ. concurring. J.,
McALLISTER, prior This is not an instance of restraint such as censorship. petitioner action No was taken to restrain obtaining copies additional from films and con- tinuing any showing show them. In the absence of contrary we he was able to assume that do so. censorship. peti- is this a de If the
Neither facto during pendency tioner has not shown the films proсeeding self-imposed. of this his restraint was On motion circuit court on Febru- ary attorney ordered the district 5, 1968, to retain custody of the seized films and not to show them to any person any purpose or use them for whatever until further order of the court. The alternative writ of mandamus discloses that a similar restraint was imposed attorney district in the district court.
The films involved in this case had been exhibited and this was a routine “after the event” ‹ prosecution by the jus state in the usual course of its criminal procedure. opportunity tice films to show the nonobscenity by “and way then raise the claim of so” › was afforded prosecution doing defense ato for petitioner. this If he elected to have the criminal prosecution during pendency abated pro of this ceeding any right urge he has waived “prior re- ‹ Quantity A Kansas, of Books v. 378 US 84 S Ct 12 L Harlan, J., ed 2d 809 dissenting, 819-820, at follows: typical censorship “In the brought situation material as a matter of course before some authority, administrative propriety. who then decides on its This means that the State whereby establishes an administrative writings structure all *11 publication. By are reviewed before contrast, if the State system penal punish expression uses its permissible outside
bounds, comprehensively the State does any not review form expression; merely of it considers after the event it utterances suppose may prohibited.” has reason to › Marcus Property Warrant, v. Search 717, 367 US 81 S Ct 1708, 1127, quoted (1961), 6 L ed 2d 1139 approval by with Quantity Brennan, J., Kansas, in A supra of Books v. 1,n 12 L part 813, ed 2d at as follows: “* * * opportunity An ... to circulаte the [books]
336 ex- in this case for the strain!” There is no need traordinary remedy of mandamus.
I concur. dissenting. J.,
O’CONNELL, issued the assume that the circuit court We ground First writ of mandamus on the Amendment petition stated in Maizels’ for the writ. On against prohibition state does not contend that prior inapplicable present but case, restraint argues proper only mandamus is not the that question. ‹ to raise the constitutional reasoning, majority opinion uses this same argument although accepting the state’s that man- not only rule law” damus will lie if there is “clear of defining petitioner’s rights. nonobscenity by way . . . and then raise the claim doing prosecution so was never afforded these
defense to a
for
they
possessed
copies
appellants
were
taken
because
* *”
*
away.
‹ The
an
issue not raised on
is whether
constitutional
adversary hearing
necessary prior
allegedly
of an
to the seizure
Quantity
Kansas,
picture.
A
motion
of Books v.
obscene
1723,
(1964)
12 L Ed2d 809
the court said that
US
84 S Ct
necessary
prior
adversary
hearing was
to the seizure of cer
Only
judges
sitting
nine
on the case
tain
signed
four of the
books.
opinion.
relying upon
Quantity
Kansas,
courts,
of Books v.
A
Some
supra,
hearing prior
to seizure of a film is neces
have held that
sary
satisfy
Films,
Inc.
the First Amendment.
See Cambist
Illinois,
Supp
(N
1968)
(magistrate
F
D Ill
v. State of
actually
film); People
issuing
Kozak,
attended
the warrant
(1968)
(rule applied
peddler
692, Misc2d 337
where
288 NYS2d
street).
pictures
policeman
sold obscene
prob-
apply
have refused to
the rule where the
Some courts
Metzger
Pearcy,
acute.
lem of law enforcement would be
See
1968)
(7th
(police
copy
Cir
allowed to retain
F2d 202
one
investigation
despite
adversary
hearing
fact
no
film for
Municipal
granted).
also Flack v.
Court
for Ana-
had
See
been
Rptr
J.D.,
Cal
66 Cal2d
337 majority not the is reasons .mandamus (cid:127)The .that proper present would because it in the case though interlocutory appeal, result in and that even expression some Maizels’ was inhibited to freedom aspect First when ease, “the Amendment extent, weighed against the other considerations discussed important sufficiently justify use here, is not in a of mandamus manner that amounts to an inter- locutory appeal.”
This strikes me as rather novel treatment of Ordinarily rights. First Amendment freedom of ex- pression protected unless is some transcendent there (frequently expressed social interest in terms of “a present danger”) clear and which needs to be served . inhibiting expression. even at the cost of free majority procedural treats the some- inconvenience (but always) interlocutory times not associated with appeals magnitude justi- evil as an of such that we are inhibiting expression fied in freedom of to avoid it. regard I that as a clear distortion of constitutional principle. language Virginia, 636, There is in Lee Art Theatre v. 392 US (1968) 2103, indicating Ct 88 S 20 L Ed2d 1313 that the court
might hearing prior parte only. now be satisfied if ex How ever, subsequent federal court district cases to the Lee decision rejected interpretation Tyrone, have Wilkinson, this of the case. Inc. v. (E.D. Supp 1969); F Films, Va. Cambist Inc. Illinois, Supp (N.D. 1968). v. State of 292 F Ill. It has been contended that distinction should be made be prior tween restraints written and on movies. See material Judge dissent in Lumbard’s United States v. One Posi Carton “491”, (2d tive 889, Motion Picture Film Entitled 367 F2d potential 1966), suggesting Cir that the harmful film greater at justifies Cf., Municipal Court, media restraints. Flack v. . supra Maryland, 66 Cal2d footnote 7 In Freedman v. (1965) Supreme US recognized tections 85 S Ct 13 L Ed2d Court among speech pro there are distinctions the free media,' suggested afforded to be various that some might prior acceptable restraints be more in the area оf films. majority’s egregious in the is a more error There treating reasoning. is in Maizels’ assertion That error right expression prior without restraint of his of free charge of dis- if an incident to the criminal it were *13 seminating of Maizels’ material. The issue obscene alleged guilt of his con- and the issue of the violation rights distinct issues. Maizels has stitutional are two separately. right litigate the constitutional issue to the appendage If the issue is treated as an constitutional prosecution, the criminal then, course, guilt adjudicated on that the issue of issue before interlocutory appeal. assumes form of an It does the that form if the constitutional issue is not assume separately, as it treated should be. recognized appropriate- previously have
We as a to raise a constitu- ness of mandamus separately from issues in a tional issue other ease. Biggs, rel 255 P2d 413, 425, State ex Ricco Or (1953), we said: us “The before for decision on the questions affecting involves constitutional merits rights plaintiff. If she is correct her con- pro- then she is entitled to the immediate tentions, tection tingency rights of her constitutional without the con- expense Supreme of an Oregon conviction. after Straub State of Court 255 P et 121 Or 897.” al., majority opinion “[t]he states that sole First of the use of mandamus would Amendment effect have or hasten three four months the time been to at * * * eventually [Maizels] could which resume sought showing film.” If Maizels had writ of this court rather than mandamus from from the cir possible get it would have been for him cuit court, relief. Rule 49 of our Rules immediate Under of Prо- may original jurisdiction cednre we issue writs of immediately upon application. › if But even there is delay issuing a substantial whether in writ, this court or in the court, circuit is en through titled proced to seek relief the writ if that provides speedier remedy ure provided than that appeal. fi through litigation the usual course of imposed by upon The inhibition the state a citizen’s rightful expression freedom of should be limited to possible period delay shortest time. The in lift- ing untimely message the restraint render which purports convey. thе film or other media delay. Mandamus should be available to avoid such join and Benecke, in this JJ., dissent. Goodwin › applications jurisdiction original “All for writs of must be party together served typewritten the adverse with a or printed points memorandum of the involved and authorities re *14 upon. may lied required by addition to such matters be every statute, petition why appli shall state the reasons such cation application was not made circuit court. Such memorandum, accompanied by eight copies thеreof, shall Except be filed with the court. in cases in which the court jurisdiction upon presentation shall assume application, party may, days the adverse within five from date of service thereof, together eight serve and file a memorandum brief with copies opposition application in appli for the writ. The by cation will argument then be considered the court without oral unless original jurisdic otherwise ordered. If the court assumes tion, may briefs, typewritten conformity which with Sec tions 2 and 4 of Rule must bе filed within such time as shall original proof be fixed the court. The brief with of service together thereon, copies, endorsed with 25 shall be delivered Supreme Oregon the Clerk.” Court of Procedure, Rules of Rule 1967). (August 1, fi pointed extraordinary “It has been writs, par out ticularly mandamus, provide flexibility solving considerable arising application judgment difficult cases from the final justify rule. it, equiva When the circumstances of the case prior judgment lent of an through be had to final Comment, the use of mandamus.” taining The Writ of Mandamus —Ob “Non-Appealable” Interlocutory Judicial Review of the ‘ Order, 6 Kan L Rev 78 at 88