Opinion
Ath 83-8; CA A30721
Argued and submitted July 2, 1984
Reversed and remanded December 19, 1984
Judicial Review from the Decision of Verne A. Duncan, Superintendent of Public Instruction of the State of Oregon.
Don G. Carter, Portland, argued and cause for petitioner. With him on the brief were McEwen, Hanna, Gisvold Rankin, Portland.
Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
Before Gillette, Presiding Judge, Warren and Young, Judges.
PER CURIAM
Reversed and remanded for reconsideration.
Petitioner Oregon School Activities Association (OSAA) seeks judicial review of an order of the State Superintendent of Public Instruction that granted Johannes Zohner eligibility to participate in interscholastic sports at Wilson High School in Portland. OSAA raises two assignments of error. It asserts, first, that the Superintendent erred in finding that, under OSAA rules, Zohner is a "foreign exchange" student and, second, that he erred in ruling that OSAA's determination that Zohner is ineligible to participate in interscholastic sports violates Or Laws 1983, ch 823, § 2 ( codified as ORS 339.450). We consider only the first assignment. We conclude that there is no evidence in the record to support the Superintendent's finding that Zohner is a "foreign exchange" student.
Typically, when we determine that an agency has made a finding of fact that is unsupported by the record, and we conclude that finding may have influenced a conclusion of law, we remand for reconsideration. See, e.g., Bremer v. Employment Division, 52 Or. App. 293, 628 P.2d 426 (1981); Palen v. Oregon State Bd. of Higher Education, 18 Or. App. 442, 525 P.2d 1047 (1974). That is true here. On remand, the Superintendent should consider the applicability to this case, if any, of OSAA v. Stout, 71 Or. App. 405, 692 P.2d 633 (1984).
Reversed and remanded for reconsideration.