declining to address peti- tioner’s new constitutional argument and rejecting his other arguments
How later courts described this case
- declining to address peti- tioner’s new constitutional argument and rejecting his other arguments
- recognizing that “appellate courts may decline to award costs to the prevail- ing party in cases of dismissal, for reasons of fairness or otherwise”
Written by the judges who cited it.
The opinion
No. 359 July 12, 2023 25
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
RANDALL J. KRAGT,
Petitioner,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A163421
On petitioner’s petition for reconsideration filed May 16,
2023. On respondent’s response to petition for reconsider-
ation filed May 23, 2023. Opinion filed May 3, 2023. 325
Or App 688, 529 P3d 1019 (2023).
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.