Kragt v. Board of Parole

25

On petitioner’s petition for reconsideration filed May 16, on respondent’s

response to petition for reconsideration filed May 23; opinion filed May 3,

325 Or App 688, 529 P3d 1019; reconsideration allowed, former opinion adhered

to July 12; petition for review allowed November 2, 2023 (371 Or 511)

See later issue Oregon Reports

RANDALL J. KRAGT,

Petitioner,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A163421

533 P3d 392

After losing his post-conviction appeal, petitioner sought reconsideration

of the Court of Appeals’ cost award to the Board of Parole and Post-Prison

Supervision as the prevailing party. Petitioner argued that the court should

exercise its discretion under ORS 20.310(1) to disallow costs, because petitioner

has court-appointed counsel and is therefore necessarily indigent. Alternatively,

petitioner argued that the court is required to make a record of its reasons for

awarding costs, as a discretionary decision. Held: The court granted reconsider-

ation and adhered to its former opinion. ORS 20.310(1) provides that the Court

of Appeals “shall allow costs and disbursements to the prevailing party,” unless

otherwise proscribed by statute, or unless the court directs otherwise. As such,

it is only the disallowance of costs that involves the exercise of discretion. In

this case, costs were allowed in the ordinary course, and nothing in the petition

for reconsideration persuaded the court that it should vary its normal practice

of awarding costs to the prevailing party in a post-conviction appeal, including

appeals in which the non-prevailing party has court-appointed counsel.

Reconsideration allowed; former opinion adhered to.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Kyle Krohn, Deputy Public Defender, Office of

Public Defense Services, for petition.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Jonathan N. Schildt, Assistant

Attorney General, for response.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and

Jacquot, Judge.

AOYAGI, P. J.

Reconsideration allowed; former opinion adhered to.

26 Kragt v. Board of Parole

AOYAGI, P. J.

Petitioner seeks reconsideration of our decision in

Kragt v. Board of Parole, 325 Or App 688, 529 P3d 1019

(2023), asking that we reconsider our award of costs to the

board as the prevailing party. Analogizing to Gutierrez v.

Board of Parole, 319 Or App 525, 509 P3d 194, rev den, 370

Or 197 (2022), petitioner argues that we should exercise our

discretion to disallow costs, because we decided his appeal

on procedural grounds, rather than the merits, and because

petitioner has court-appointed counsel and is therefore nec-

essarily indigent. Alternatively, petitioner argues that we

are required to make a record of the reasons for the cost

award, as a discretionary decision, and he asks us to make

that record. The state’s response is limited to pointing out

that Gutierrez is distinguishable. We allow reconsideration

and adhere to our former opinion.

ORS 20.310(1) provides that “[i]n any appeal to the

Court of Appeals * * *, the court shall allow costs and dis-

bursements to the prevailing party, unless a statute provides

that in the particular case costs and disbursements shall

not be allowed to the prevailing party or shall be allowed

to some other party, or unless the court directs otherwise.”

(Emphases added.) It is only when we affirmatively direct

that costs will not be allowed that we are exercising dis-

cretion. We endeavor to be consistent in exercising that

discretion. We may decide that costs generally should be

disallowed in a particular type of case. Otherwise, a deci-

sion to disallow costs in an individual case will neces-

sarily be based on the individual circumstances of that

case.

Because the statute provides that we generally

“shall” allow costs, we do not believe that we are required

to explain allowing costs in the ordinary course—that is,

when we are not exercising our discretion to disallow costs.

Of course, we could choose to explain allowing costs, but

there is little reason to do so where, as here, the parties did

not address costs in their briefing. A party may raise the

issue on reconsideration, but it should be noted that it is not

our practice to explain decisions to deny reconsideration.

Cite as 327 Or App 25 (2023) 27

As for the present case, having granted reconsider-

ation to address petitioner’s alternative argument, we also

will address his request that we exercise our discretion to

disallow costs. This case is not comparable to Gutierrez,

because that appeal was dismissed as moot. Gutierrez,

319 Or App at 526; see also DeYoung/Thomas v. Board of

Parole, 332 Or 266, 276, 27 P3d 110 (2001) (recognizing that

“appellate courts may decline to award costs to the prevail-

ing party in cases of dismissal, for reasons of fairness or

otherwise”). This appeal was decided on the merits, except

insofar as one argument was rejected as having been raised

too late. Kragt, 325 Or App at 689 (declining to address peti-

tioner’s new constitutional argument and rejecting his other

arguments). Moreover, a cost award is not meant to penal-

ize the losing party for a lawyer’s fervent advocacy, which

sometimes includes testing procedural boundaries or mak-

ing novel arguments. Allowing costs is the statutory default

under ORS 20.310(1), so cost awards must be understood as

simply a cost of litigation. Finally, consistent with the stat-

ute, we normally award costs to the prevailing party in a

post-conviction appeal. We are unpersuaded that anything

about this case warrants treating it differently from other

post-conviction appeals involving court-appointed counsel.

Reconsideration allowed; former opinion adhered to.