Vollmer v. Schrunk

DENECKE, J.,

specially concurring.

I do not join in the majority opinion but concur in the result for the reason that I believe that the majority opinion is subject to a construction that would becloud the form of the writ of review as it was shaped by Bechtold v. Wilson, 182 Or 360, 186 P2d 525, 187 P2d 675 (1947); Baker v. Steele, 229 Or 498, 366 P2d 726 (1962); and Miller v. Schrunk, 232 Or 383, 375 P2d 823 (1962).

The statute provides that the writ of review “shall be allowed in all oases where the inferior court, officer, or tribunal in the exercise of judicial functions appears to have exercised such functions erroneously, or to have exceeded its or his jurisdiction * * ORS 34.040.

As I understand the above eases, they have construed the statute to mean that a writ of review will not lie to review the order of an administrative tribunal unless (1) the tribunal’s procedure was irregular or (2) the tribunal exceeded its jurisdiction, as “juris*200diction” is used in its usual legal sense. The writ will not lie to correct erroneous rulings of law; Baker v. Steele, supra (229 Or at 502).

The Board admittedly had jurisdiction of the subject of disability benefits and had jurisdiction over the person of the plaintiff. No claim of irregular procedure was made. I would, therefore, hold that a writ of review would not lie. I do not believe that it is necessary to decide whether the Board’s interpretation of the charter is reasonable. In my opinion an unreasonable interpretation would only be “an error of law” and not reviewable upon a writ of review.

The legislature apparently acquiesced in our interpretation of the two grounds stated by the statute because they amended the statute in 1965 leaving the wording of these two grounds intact but added a third ground,-—the writ will lie if the tribunal acted “arbitrarily.” Oregon Laws 1965, ch 292, p 632.

The remedy by writ of review is statutory and is limited to correcting the particular classes of errors of inferior tribunals which the statute specifies. It may very well be that the scope of review should be widened by amending the writ-of-review statute or by providing for appeal from these administrative tribunals from which there is now no judicial review except by writ of review.① I believe, however, this should be a legislative decision because the words used in the writ-of-review statute have- á long-standing meaning which, in my opinion, has been correctly followed by the above-cited decisions.

Lijsk and Goodwin, JJ., concur in this -specially concurring 'opinion.

I do not intend to express any views on the availability of declaratory judgment procedures for judicial review.