# West v. Bowers > Court of Appeals of Oregon · October 27, 1972 · 11 Or. App. 364 URL: https://www.frixlaw.com/law-library/cases/9577496 ## Case - **Full name:** WEST Et Al, Petitioners, v. BOWERS, Respondent - **Court:** Court of Appeals of Oregon - **Decided:** October 27, 1972 - **Citations:** 11 Or. App. 364; 502 P.2d 270; 1972 Ore. App. LEXIS 689 - **Precedential status:** Published - **Opinion:** Concurrence by Fort - **Judges:** Schwab, Foley, Fort - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9577496 ## Opinion text FORT, J., specially concurring. As the majority correctly points out, the respondent duly filed a motion to dismiss this appeal because the petitioner failed to exhaust her administrative remedies. The majority concludes in n 6 that she “did exhaust all clearly available remedies.” I disagree with that conclusion and accordingly would allow the motion and dismiss the appeal. The Oregon Administrative Procedures Act, ORS 183.310-183.500, provides for judicial review of contested cases as follows: ORS 183.480: “(l)(a). Any person adversely affected or aggrieved by an order or any party to an agency proceeding is entitled to judicial review of a finai order, whether such order is affirmative or negative in form, under ORS 183.480 to 183.500. *377 A petition for rehearing or reconsideration need not be filed as a condition of judicial review unless specifically otherwise provided by statute or agency rule. “(b) Judicial review of final orders of agencies shall be solely as provided by OES 183.480 to 183.500. “(c) Except as provided in OES 183.400, no action or suit shall be maintained as to the validity of any agency order * ° *. *¡ # * * The rules duly adopted by the State Board of Higher Education include: “AE 30.130 Eeview of Eesidence Classification Decisions. (1) There shall be established a permanent interinstitutional review committee consisting of the officers determining student residence classification at the several institutions of the system and two students, with the Secretary of the State Board of Higher Education as chairman. Eesidence cases of unusual complexity, especially where there may be conflict of rules, may be referred to this committee for decision. In exceptionally meritorious cases, totaling not more than five percent of the nonresident enrollment of the institution concerned, this committee may allow exceptions to the rules. “ (2) There shall be established a permanent administrative review committee consisting of the Chancellor, the Assistant Attorney General assigned to the Department of Higher Education, one student, and the Secretary of the Board of Higher Education as a nonvoting member, with the Chancellor as chairman. A student whose residence classification has been reviewed by the interinstitutional committee referred to in paragraph 1. of this section, and who is dissatisfied with the decision of that committee, may, upon request, have his case *378 referred to the administrative committee for further review and decision.” It will be noted that in addition to the Inter-institutional Eeview Committee provided for in AE 30.130 (1), the rules also establish a “permanent administrative review committee,” name the members, provide that any student “who is dissatisfied with the decision” of the interinstitutional review committee may, if he so requests, have his case reviewed by the permanent administrative review committee “for further review and decision.” (Emphasis supplied.) Neither of the procedures authorized by AE 30.130 were here complied with. No effort was made to do so. No explanation for this failure is offered. Thus no decision beyond the level of an individual hearing officer at but one of the many institutions operated by the State Board of Higher Education has been announced. Certainly a decision under such circumstances cannot reasonably be said to express any policy or position of the State Board of Higher Education concerning the matter in issue. The failure here to follow the authorized procedure thus makes impossible the orderly development and review of uniform policy applicable to all institutions within the state system by the State Board of Higher Education. I cannot believe that the State Board in the exercise of its rule-making authority could have intended so absurd a result. Jaffe, Judicial Control of Administrative Action 424 (1965), states the general rule: “A party will usually be required before challenging the validity of an administrative action to exhaust his administrative remedies. The logic of the rule implies that the remedy is (a) available to *379 Mm on Ms initiative (b) more or less immediately and (c) will substantially protect Ms claim of right. Rule 30.130 (1) and (2), though inartfully worded, reasonably construed in my view create an administrative procedure designed to assure both student and agency an expeditious route to a final order of the agency from which, and, unless waived, only from which, an appeal to this court is intended to lie. ORS 183.480. The court here thus invites at the whim of any student the by-passing of the orderly procedures necessary to the development of sound administrative policy in this or any statewide administrative agency. Accordingly, I do not reach the merits of the appeal and express no opinion thereon. I concur only in the dismissal of the appeal. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9577496. Public record. Not legal advice.