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 reconsideration 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 necessarily 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 disbursements 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 discretion. 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 decision to disallow costs in an individual case will necessarily 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 reconsideration 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 prevailing 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 petitioner’s new constitutional argument and rejecting his other 

arguments). Moreover, a cost award is not meant to penalize the losing party for a lawyer’s fervent advocacy, which 

sometimes includes testing procedural boundaries or making 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 statute, 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.