concurring in part; dissenting in part.
I concur with that portion of the majority opinion dismissing most of plaintiffs’ claims. I dissent from the majority’s holding that state collection of support money from the parents of certain minors in secure custody but not from others would violate the privileges and immunities clause of Article I, section 20.
To begin with, I do not believe that the issue is before the court. It appears to me that the majority has seized on a simple assertion in plaintiffs’ memoranda to build a case where none exists. The majority opinion turns on the factual statement in plaintiffs’ memoranda that the state collects support money from parents of minors placed in secure custody by the juvenile court but fails to collect from the parents of minors remanded to secure custody by the adult corrections system. Plaintiffs first made this assertion in their memorandum in support of their motion for . summary judgment:
“The defendants’ practice violates equal protection for a reason independent of its requiring payment from individuals for a state function: the practice distinguishes between two classes of parents of minors found to have engaged in criminal conduct and, with no logical basis, imposes financial liability on one class alone.
“ORS 419.533 provides that children 15 and over, who are alleged to have committed a ‘criminal offense’ may be remanded to adult court for disposition as an adult. ORS 137.124(4) requires that all remanded juveniles under 18 years of age who have been sentenced to a term of imprisonment in the custody of the Corrections Division shall be transferred to a juvenile training school for physical custody.
“Thus, juveniles convicted in adult court and incarcerated in the secure training schools under ORS 137.124(4) are in virtually the same situation as juveniles committed to the secure training schools as a result of being convicted of a crime in a juvenile court. The state, however, treats their parents differently for the purposes of reimbursement; this unequal treatment violates a parent’s right to equal protection of the laws. Parents of remanded juveniles, just like relatives of adult prisoners, are not charged for the costs of the child’s confinement.”
*47It is not clear whether plaintiffs meant that this disparate treatment is what the state does in fact or that it is what the statutes require the state to do. The majority treats it as a factual statement. One must be mindful that this case comes to us on a summary judgment. Plaintiffs submitted no pleadings, depositions, affidavits or other material in the record to support the quoted statement. The complaint contains only the bare assertion that “[defendants, by charging plaintiffs for the incarceration of their children committed to the secure training schools violated the plaintiffs’ rights to due process and equal protection * * Plaintiffs repeated the statement at oral argument below and in their briefs to this court. The state did not contend that there were no material facts in dispute. The state never addressed this factual issue until argument before this court, where it contended that, as a matter of fact, the state does not discriminate in seeking support.
ORCP 47C provides:
“The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
In Elliot v. Oregon International Mining Co., 60 Or App 474, 654 P2d 663 (1982), the parties opposing summary judgment failed to allege sufficient facts in their pleading to bring themselves within the purview of a particular statute but attempted to allege such facts at oral argument on the motion for summary judgment. We held:
“Although plaintiffs’ counsel argued at the summary judgment hearing that they were entitled to damages under federal regulations, ORCP 47C requires the court to consider only pleadings, depositions, and admissions on file * * *.” 60 Or App at 479.
In Falkenstein v. Pishioneri, 80 Or App 203, 720 P2d 1341 (1986), we rejected examination of material outside the ORCP 47C list in evaluating a summary judgment:
“The parties agreed that there was no issue of material fact, but we disagree. We do not rely on what may or may not be admitted in the briefs on appeal in determining the propriety of summary judgment but only the pleadings, depositions, *48affidavits and admissions on file and considered by the trial court.” 80 Or App at 206.
Applying those holdings and the language of the rule, I would hold that, by merely stating the particular discriminatory practice of the state in their brief alone, plaintiffs could not assert the claim on a summary judgment, and it is not before this court.1
A statement in a brief is not sufficient to raise a genuine issue of material fact:
“In deciding whether a genuine issue of fact exists, courts generally read ‘genuine issue’ to mean ‘triable issue.’ Before a party has a triable issue, he or she must have sufficient evidence to be entitled to a jury determination.” Seeborg v. General Motors Corporation, 284 Or 695, 700, 588 P2d 1100 (1978).
Neither is a statement in plaintiffs’ memoranda competent evidence on which we could decide this case.
On the other hand, if plaintiffs intended to assert that the state is required by law to treat certain minors in secure custody differently, they are wrong. In their brief before this court, they cite the statutes cited above as support for their statement, which tell us only that some minors are committed to secure custody by juvenile courts and that others are placed by adult courts.
Plaintiffs also rely on the CSD Service Administration Manual VIII-A-l-III-C, which provides:
“C. Cases which require mandatory referral to SED are the following, where placement is expected to last more than 30 days:
“1. All children in paid residential substitute care programs (includes Parole Substitute Care and Independent Living) , in Children’s Services Division’s custody pursuant either to a court order or voluntary agreement.
“2. All children committed to the training schools and residing at Hillcrest, MacLaren, or the camps.” (Emphasis supplied.)
*49They argue that the use of the term “committed” means the manual section applies only to adult court minors who are “committed” by statute to the Corrections Division, which transfers “only the physical custody and not the commitment of the person to the juvenile training schools.” However, the cited manual section does not refer to the statute or otherwise define “committed,” so that term could simply refer to transfer of physical custody. In any case, the provision is consistent with an agency policy to seek support from parents of adult court minors.
Finally, plaintiffs state that “well settled principles of law” support their factual statement. They are apparently referring to a general rule that family members are not required to provide support for other family members who are in prisons. However, they did not cite, nor can I find, any authority for the proposition that the state does not or cannot seek support from the parents of adult court minors. The statutes cited by plaintiffs only state the obvious: Some minors in secure custody are placed there by the juvenile court system and some are placed by the adult court system. The manual citation also tells us nothing. The question comes down to: “What is the policy and practice of the state?” There is no competent evidence in the record to raise that as an issue and, therefore, this court cannot decide the merits.
Were I to reach the merits, I would uphold the purported practice of the state. I agree with the majority that the ultimate issue is whether there is a rational basis for distinguishing between the parents of minors placed in secure custody by juvenile court and parents of minors placed in secure custody by adult criminal court. However, I would hold that there is a rational basis for such a distinction.
The basis for the distinction flows from the simple fact that some minors have been placed in secure custody by the adult system, and some have been placed by the juvenile system. The underlying purposes of confinement under the two systems reflect different state policies. The policies behind the exercise of jurisdiction under the juvenile adjudication system are stated in ORS 419.474:
“The provisions of ORS 419.472 to 419.597, 419.800 to 419.839 shall be liberally construed to the end that a child coming within the jurisdiction of the court may receive such *50care, guidance, and control, preferably in the child’s own home, as will lead to the child’s welfare and the best interest of the public, and that when a child is removed from the control of the parents of the child the court may secure for the child care that best meets the needs of the child.”
Minors committed to secure custody by that system are found to be within the custody of the juvenile court on the basis of a finding of delinquency. ORS 419.509. However, “an adjudication by a juvenile court that a child is within its jurisdiction is not a conviction of a crime or offense.” ORS 419.543.
The situation of minors convicted as adult criminals is quite different. Obviously, they are convicted of a crime. In addition, to remand a minor to adult court, the juvenile court must make findings on a variety of criteria, including whether the minor is age 15 or over, that the alleged offense is either a Class A or B felony, murder, or certain class C felonies, including assault and robbery in the third degree, and the protection of the community. ORS 419.533(1).
Further evidence of the difference in state policy toward minors convicted of crimes in adult court is that emancipated minors are to be tried for crimes as if they were adults and that the ORS 109.010 duty of support does not apply to their situation. ORS 109.555. In short, the different purposes behind the adult and juvenile systems provide ample support for a holding that a state policy treating minors and their parents under each system differently has a rational basis. See Jesmer v. Dundon, 29 NY2d 5, 323 NYS2d 417, 271 NE2d 905 (1971).
Finally, plaintiffs’ primary equal protection argument is that to charge parents of minors in secure custody for support, regardless of which court sent them there, and not charge the families of adult criminals (who also have a duty of support under ORS 109.010) violates equal protection. This is because the primary purpose for secure custody of minors and adults is the protection of society. The majority rejects this argument. If it finds no equal protection problem with that, it cannot logically stop halfway and hold that minors incarcerated under the adult system must be treated the same as minors under the juvenile system. If the distinctions between the purposes and practices of the adult system and the juvenile system are valid, as the majority holding implies, then the *51results of those distinctions must be constitutionally valid as applied to different treatment of minors in adult court and minors in juvenile court.
Accordingly, I respectfully dissent.
Although the state submitted a cross motion for summary judgment, which was granted in its entirety, that does not mean that the state conceded that there were no issues of fact as to plaintiffs’ theory of the case. McKee v. Gilbert, 62 Or App 310, 661 P2d 97 (1983).