Walker v. Board of Parole

64 June 4, 2025 No. 488

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

CHRISTOPHER MICHAEL WALKER,

Petitioner,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A182353

On petitioner’s petition for reconsideration filed January 9,

2025. Opinion filed December 26, 2024. 337 Or App 177.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Kyle Krohn, Deputy Public Defender, Oregon

Public Defense Commission, for petition.

Before Tookey, Presiding Judge, Lagesen, Chief Judge,

and Kamins, Judge.

KAMINS, J.

Reconsideration allowed; former opinion adhered to.

Cite as 341 Or App 64 (2025) 65

KAMINS, J.

Petitioner seeks reconsideration of our decision in

Walker v. Board of Parole, 337 Or App 177 (2024) (nonprec-

edential memorandum opinion), asking that we reconsider

our award of costs to the board as the prevailing party. He

advances two arguments: (1) that we should disallow costs

because petitioner raised a nonfrivolous claim, and he is

indigent; and (2) that ORS 20.190(1)(a), which imposes a $100

prevailing party fee, violates the Justice Without Purchase

Clause of Article I, section 10, of the Oregon Constitution.1

We allow reconsideration and adhere to our opinion.

In his first argument, petitioner contends that,

because he “raised a nonfrivolous claim and is indigent,”

we should exercise our discretion to disallow costs. See ORS

20.310(1) (providing that in “any appeal to the Court of

Appeals * * *, the court shall allow costs and disbursements

to the prevailing party * * * unless the court directs other-

wise”). For the same reasons explained in Kragt v. Board of

Parole, we decline to exercise our discretion to disallow costs.

327 Or App 25, 27, 533 P3d 392 (2023) (observing that impos-

ing a cost award to the prevailing party when the appeal was

decided on the merits is the “statutory default” and that a

prevailing cost award “must be understood simply as a cost

of litigation” not meant to “penalize the losing party”).

In his second argument, petitioner contends that the

prevailing party fee violates the Justice Without Purchase

Clause of Article I, section 10, of the Oregon Constitution,

which provides that “justice shall be administered, openly

and without purchase[.]” Petitioner argues that ORS

20.190’s imposition of a prevailing party fee award violates

that clause because it conditions “a person’s access to the

court on the mandatory imposition of a fee without regard

to” a person’s finances.

The Justice Without Purchase Clause was adopted

to “prohibit (1) the procurement of legal redress through

bribery and other forms of improper influence; and (2) the

1

Article I, section 10, of the Oregon Constitution provides that “[n]o court

shall be secret, but justice shall be administered, openly and without purchase,

completely and without delay, and every man shall have remedy by due course of

law for injury done him in his person, property, or reputation.”

66 Walker v. Board of Parole

judicial imposition of fees and costs in amounts so oner-

ous as to unreasonably limit access to the courts.” Allen v.

Employment Dept., 184 Or App 681, 688, 57 P3d 903 (2002).

ORS 20.190(1)(a)’s imposition of a cost award to a prevail-

ing party does not fall within the protection of the Justice

Without Purchase Clause for two reasons.

First, the imposition of the prevailing party fee is

inconsistent with the “purchase” of any particular result. See,

e.g., Allen, 184 Or App at 688 (explaining that “ ‘purchase’

of justice suggests that” the constitutional Clause “bars the

procurement of legal redress by such means as paying money

for a particular outcome”). By definition, a prevailing party

fee can only be imposed after a party prevails in litigation;

the fee itself cannot procure a particular result prior to any

litigation. See Bradley v. Dept. of Forestry, 262 Or App 78, 107,

324 P3d 504, rev den, 355 Or 879 (2014) (concluding that “the

payment of reasonable attorney fees and costs by the peti-

tioner, regardless of the outcome, is not a ‘purchase’ within

the meaning of that constitutional provision”). That is, a

party cannot “purchase justice” utilizing the prevailing party

fee. See Allen, 184 Or App at 688 (upholding court filing fees

that are recoverable from the losing party; a structure that is

inconsistent with the “purchase” of any particular result”).

Second, to violate the Justice Without Purchase

Clause, the fee must be “exorbitant”; that is the fee is “so

onerous as to unreasonably limit access to the courts.”

Bradley, 262 Or App at 107 (internal quotation marks omit-

ted). Petitioner does not advance an argument as to why the

$100 prevailing party fee is exorbitant; rather, his argument

turns on the fact that he is indigent. However, nothing in the

Justice Without Purchase Clause mandates consideration of

each individual’s financial circumstance prior to imposing a

nonexorbitant prevailing party fee. Cf. id. (upholding large

attorney fee award because “[u]nlike exorbitant filing fees,

the amount of an attorney-fee award varies depending on

the nature of the parties’ disputes and is not determined

until the end of the proceeding”).

Accordingly, on reconsideration, we adhere to the

imposition of the fee award of $100 on petitioner.

Reconsideration allowed; former opinion adhered to.