Wesner v. Oregon State System of Higher Education

551 P.2d 124, 25 Or. App. 837, 1976 Ore. App. LEXIS 2167

Opinion

THORNTON, J.

Petitioner, a student at Oregon State University, appeals from the decision of the Permanent Administrative Review Committee of the State System of Higher Education which ruled that he was not entitled to resident student tuition rates for the 1975-76 school year.

We must first determine whether this court has jurisdiction to hear this appeal. As we have often stated, direct judicial review of administrative action by this court is authorized only when the proceeding below was a "contested case hearing.” ORS 183.482(1); N. W. Envir. Def. v. Air Poll. Auth., 16 Or App 638, 519 P2d 1271, Sup Ct review denied (1974); Herron v. Employment Div., 24 Or App 531, 546 P2d 789 (1976); Solomon v. State Land Board, 25 Or App 311, 548 P2d 1335 (1976).

In N. W. Envir. Def. v. Air Poll. Auth., supra at 640, n 1, we defined a "contested case hearing” as

"* * * 'a¿versary’ or 'trial-type’ administrative hearings [which] are conducted like trials with sworn testimony, subpoena power, cross-examination, application of the rules of evidence, etc. * * *”

Petitioner’s position on appeal is in part that the proceeding before the Permanent Administrative Review Committee was inadequate in that witnesses were not sworn and that no transcript was prepared. Petitioner is in essence admitting that he did not receive a contested case hearing below and arguing that he should have. Such an argument should be addressed to the circuit court as our court is without jurisdiction to hear an appeal unless the proceeding below was a contested case hearing; it is not sufficient that the proceeding should have been a contested case hearing.

Appeal dismissed.