S056861, Opinion — Blacknall v. Board of Parole

131
Argued and submitted September 15, 2009, decision of Court of Appeals affirmed
April 8, 2010
DWAINE BLACKNALL,
Petitioner on Review,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent on Review.
(CAA130410; SC 8056861)
229 P3d 595

132 	Blacknall v. Board of Parole	----
CJS, States§ 328.
En Banc
On review from the Court of Appeals.*
Meredith Allen, Senior Deputy Public Defender, Salem,
argued the cause and filed the brief for petitioner on review.
With her on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
Judy C. Lucas, Senior Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With her on the brief were John R. Kroger, Attorney General,
and Jerome Lidz, Solicitor General.
DURHAM,J.
The decision of the Court of Appeals is affirmed.
* On review from a final order of the Board of Parole and Post-Prison
Supervision. 223 Or App 294, 196 P3d 20 (2008).

Cite as 348
DURHAM,J.
Petitioner sought judicial review of a final order of
the Board of Parole and Post-Prison Supervision (board) that
affirmed an earlier order denying him rerelease on parole.
The Court of Appeals granted petitioner leave to proceed
with judicial review. However, before the court reached a
decision, petitioner was released on parole. Petitioner's coun-
sel filed a notice of probable mootness and the Court of
Appeals dismissed the case as moot. Blacknall v. Board of
Parole, 221 Or App 200, 189 P3d 1234 (2008). The court des-
ignated the board as the prevailing party and, over peti-
tioner's objection, awarded thE~ board its requested costs and
disbursements, payable by petitioner. Blacknall v. Board of
Parole, 223 Or App 294, 296, 196 P3d 20 (2008). Petitioner
sought review, arguing that former ORS 144.335(12) (2005),
renumbered as ORS 144.335(9) (2007), which governs judicial
review of board orders, prohibited the cost award. 1 We con-
clude that ORS 144.335(12) did not prohibit the allowance of
costs and disbursements. Accordingly, we affirm the decision
of the Court of Appeals.
In 1990, petitioner was convicted of four counts of
first-degree burglary and sentenced to a 20-year term. He
was paroled in 1991. In 2003, after petitioner had committed
several parole violations, the board revoked parole, returned
petitioner to prison, and ordered a future disposition hearing
to determine the length of the parole revocation. After the
future 	disposition 	hearing, 	the 	board 	denied 	petitioner
rerelease on parole and reset his release date to May 11,
2008. In 2004, petitioner filed a request for an administrative
1 The legislature amended ORS 144.:335(12) in 2007, Or Laws 2007, ch 411, § 1.
by renumbering the subsection as ORS 144.335(9) and modifying certain proce-
dural references in tbe 2005 version. According to the parties, the principal issue
here is whether ORS 144.335(12) (2005) limited the authority of the Court of
Appeals under ORS 20.310 to award costs and disbursements to the board. In pos-
iting that issue, the parties have assumed that the controlling statute is the 2005
version of ORS 144.:335(12), because that statute was in effect when petitioner
sought judicial review. To avoid confusion, we adopt the same assumption: Unless
otherwise noted, citations in this opinion to ORS 144.335 refer to the version in
effect in 2005.
The 2007 version of ORS 144.335 was in effect when the Court of Appeals
awarded costs and disbursements to the board in this case. However, the 2007
amendments did not modify the scope of the court's authority to award costs and
disbursements to the board, and they do not affect our analysis in this case.

134 	Blacknall v. Board of Parole
review in which he argued that he had not received adequate
notice that the board could revoke his parole and deny him
rerelease. In response, the board granted him the option of a
revocation hearing. The board held petitioner's hearing on
May 10, 2005. Subsequently, and without holding a second
future disposition hearing, the board affirmed its 2003 order
that had revoked petitioner's parole. Petitioner requested
administrative review, arguing that, in denying his rerelease
on parole, the board had violated his due process rights and
the board's own rules by failing to hold a second future dis-
position hearing. The board denied relief and petitioner
timely sought judicial review in the Court of Appeals.
In October 2006, petitioner filed a motion for leave to
proceed. The Court of Appeals granted petitioner's motion
and the case proceeded to briefing. However, before the court
took any further action, petitioner's terms of imprisonment
expired on May 11, 2008, and petitioner was released on
parole. Ten days later, petitioner filed a "notice of fact relat-
ing to probable mootness," pursuant to ORAP 8.45, which
provides, in part, that "when a party becomes aware of facts
that probably render an appeal moot, that party shall provide
notice of the facts to the court and to the other party or par-
ties to the appeal** *."(Footnote omitted.)
On July 16, 2008, the Court of Appeals, sua sponte,
issued an order dismissing the petition for judicial review as
moot. The court also designated the board as the prevailing
party and awarded costs to the board, payable by petitioner.
The board filed a request for costs and disbursements in the
total sum of $139.90: $100 as a prevailing party fee and
$39.90 for the costs of printing the briefs. Petitioner objected
to 	the 	board's 	statement 	of costs, 	arguing 	that 	ORS
144.335(12) barred the court from 	allowing the board's
requested costs and disbursements. On October 29, 2008, the
Court of Appeals issued a written opinion allowing the
board's statement of costs and disbursements. Petitioner
timely sought review in this court.
1. 	We begin by setting out the relevant statutory pro-
visions. Three provisions in ORS chapter 20 provide general
authority for the award of costs and disbursements, includ-
ing a prevailing party fee, on review of an agency order: ORS

Cite as 348 Or 131 	135
20.310, ORS 20.190(1)(a), and ORS 20.120. First, ORS 20.310
provides for the award of costs and disbursements on appeal:
"(1) 	In any appeal to the Court of Appeals or review by
the Supreme Court, the court shall allow costs and dis-
bursements to the prevailing party, unless a statute pro-
vides 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. If, under a special provision of any statute, a
party has a right to recover costs, such party shall also have
a right to recover disbursements. On the same terms and
conditions, when the Supreme Court denies a petition for
review, the respondent on review is entitled to costs and
disbursements reasonably incurred in connection with the
petition for review.
"(2) 	Costs and disbursements on appeal to the Court of
Appeals or Supreme Court or on petition for review by the
Supreme Court are the filing or appearance fee, the reason-
able cost for any bond or irrevocable letter of credit, the pre-
vailing party fee provided for under ORS 20.190, the print-
ing, including the excerpt of record, required by rule of the
court, postage for the filing or service of items that are
required to be filed or served by law or court rule, and the
transcript of testimony or other proceedings, when neces-
sarily forming part of the record on appeal.'"'
Thus, under ORS 20.310(1), a court will generally allow the
prevailing party to recover costs and disbursements, subject
to two exceptions: (1) if"a statute provides that in the partic-
ular case costs and disbursements shall not be allowed to the
prevailing party or shall be allowed to some other party," or
(2) if "the court directs otherwise."
Second, ORS 20.190(1)(a) provides generally for an
award of a $100 prevailing party fee on appeal:
"[A] prevailing party in a civil action or proceeding who
has a right to recover costs and disbursements in the follow-
ing cases also has a right to recover, as a part of the costs
and disbursements, the following additional amounts:
2 The legislature in 2007 amended ORS 20.310(2), changing the term
"abstract" to "excerpt." Or Laws 2007, ch 54 7, § 6. That amendment has no effect on
the analysis of this case.

136 	Blacknall v. Board of Parole
"(a) 	In the Supreme Court or Court of Appeals, on an
appeal, $100."
Third, ORS 20.120 provides that for purposes of
allowing costs and disbursements, review of decisions of "an
officer, tribunal, or court of inferior jurisdiction" is treated
the same as ifthe review were an appeal. Taken together, the
above-quoted provisions of ORS chapter 20 establish that, on
review of an agency order, unless another statute provides to
the contrary, the reviewing court has authority to allow the
prevailing party to recover an award of costs and disburse-
ments, including a prevailing party fee of $100.
ORS 144.335 governs judicial review of board orders.
A board order is subject to judicial review "if the order is a
'final order,' the petitioner is 'adversely affected or aggrieved'
by it, 	and 	the petitioner has 'exhausted administrative
review.'" Dawson/Fletcher v. Board of Parole, 346 Or 643,
649, 217P3d1055 (2009) (quoting ORS 144.335(1) 	(4)). ORS
144.335 provided, in part:
"( 4) 	If a person 	* * seeks judicial review of a final
order of the board, the person shall file a petition for judicial
review with the Court of Appeals within 60 days after the
date the board mails the order disposing of the person's
request for administrative review. The person shall serve a
copy of the petition for judicial review on the board.
"* * * * *
"(6) 	Within 60 days after being served with a copy of
the record, or such further time as the court may allow, the
petitioner shall file a motion for leave to proceed with judi-
cial review based on a showing in the motion that a sub-
stantial question oflaw is presented for review.
"(7) 	Notwithstanding ORS 2.570, the Chief Judge, or
other judge of the Court of Appeals designated by the Chief
Judge, may, on behalf of the Court of Appeals, determine
whether a motion for leave to proceed with judicial review
under subsection (6) of this section presents a substantial
question of law and may dismiss the judicial review if the
motion does not present a substantial question oflaw. * *
"(8) 	If the Chief Judge, or other judge of the Court of
Appeals designated by the Chief Judge, determines under

Cite as 348 Or 131 	137
subsection (7) of this section that the motion presents a sub-
stantial question of law, the court shall order the judicial
review to proceed.
"(9) 	At any time after submission of the petitioner's
brief, the court, on its own motion or on motion of the board,
without submission of the board's brief and without oral
argument, may summarily affirm the board's order if the
court determines that the judicial review does not present a
substantial question oflaw. * * *
"* * * *
"(12) 	If the court determines that the motion filed
under subsection (6) of this section, when liberally con-
strued, fails to state a colorable claim for review of the
board's order, the court may order the petitioner to pay, in
addition to the board's recoverable costs, attorney fees
incurred by the board not to exceed $100. If the petitioner
moves to dismiss the petition before expiration of the time
provided for in subsection (6) of this section, the court may
not award costs or attorney fees to the board."
(Emphasis added.)
Under that statute, a petitioner could seek judicial
review of a board order by filing a petition for judicial review
with the Court of Appeals, but judicial review would continue
only upon a showing that the motion for leave to proceed pre-
sented a "substantial question of law." 3 If the Court of
Appeals determined that petitioner's motion for leave to pro-
ceed did not demonstrate the presence of a substantial ques-
tion of law, the court could dismiss judicial review. ORS
144.335(7). Similarly, if, after submission of petitioner's
opening brief on the merits, the court determined that "the
judicial review does not present a substantial question of
law," the court could summarily affirm the board's order.
ORS 144.335(9).
3 In 2007, the legislature amended ORS 144.335 to eliminate the interim step
requiring an inmate to file a motion for leave to proceed. Or Laws 2007, ch 411, § 1.
Under the current version of the statute, the Court of Appeals examines the peti-
tioner's brief to determine whether the judicial review presents a substantial ques-
tion oflaw. ORS 144.335(6) (2009). If the judicial review does not present a "sub-
stantial ques6on oflaw," the Court of Appeals, on its own motion or on the motion
of the board, "may summarily affirm the board's order." Id.

138 	Blacknall v. Board of Parole
In this case, as noted, the Court of Appeals concluded
that petitioner had presented a "substantial question oflaw"
and, therefore, granted petitioner's motion for leave to pro-
ceed with judicial review. ORS 144.335(8). As a consequence,
the court necessarily also concluded that petitioner had pre-
sented a "colorable claim" for review under ORS 144.335(12).
Atkinson v. Board of Parole, 341 Or 382, 388, 143 P3d 538
(2006) ("[T]he 'colorable claim' standard embodies a lower
quantum of merit than the 'substantial question of law'
standard.").
ORS 144.335(12) does not expressly address whether
a court could allow costs to the board as prevailing party even
if the court had determined that petitioner's motion pre-
sented a colorable claim. This case presents the question
whether the legislature nevertheless intended, by inference,
to prohibit an award of costs in such a situation. Stated dif-
ferently, the issue is whether, when a petitioner has pre-
sented a colorable claim, ORS 144.335 "provides that in
[that] particular case costs and disbursements shall not be
allowed" to the board as prevailing party.4 ORS 20.310(1).
Petitioner argues that ORS 144.335(12) prohibited
the Court of Appeals from allowing costs to the board in this
case. Petitioner focuses on the legislature's use of the word
"if' in ORS 144.335(12), which he asserts means "in the event
that," "so long as," or "on the condition that." Petitioner con-
tends that, by using the word "if," the legislature granted the
Court of Appeals authority to allow costs to the board only
upon fulfillment of the specified condition, i.e., a petitioner's
failure to state a colorable claim. Accordingly, petitioner con-
cludes that, by negative inference, ORS 144.335(12) prohib-
ited the Court of Appeals from awarding costs in other situa-
tions. Petitioner also contends that the legislature's reference
' Petitioner does not argue that, because the Court of Appeals dismissed the
appeal sua sponte for mootness, the board is not a prevailing party for purposes of
ORS 20.310 and ORS 20.190. Because no party has raised or briefed the issue, we
assume, without deciding, that the Court of Appeals correctly designated the board
as the prevailing party on appeal. See ORS 20.310(1) (on appeal, "the court shall
allow costs and disbursements to the prevailing party * * *"); ORAP 13.05(3)
("When an allowance of costs is dependent on identification of a party as a prevail-
ing party, the*** petitioner*** is the prevailing party only if the court reverses
or substantially modifies the judgment or order from which the appeal or judicial
review was taken. Otherwise, the respondent* * *is the prevailing party.").

Cite as 	139
to "recoverable" costs described the types of costs that may be
recovered if a petitioner fails to state a colorable claim, but
did not suggest that the court has authority to award costs in
any other situation.
The state responds that ORS 144.335(12) only pro-
hibited allowance of costs when petitioner had timely moved
to dismiss his petition for judicial review. The state asserts
that ORS 144.335 did not serve as an independent source
authorizing the recovery of costs. The state focuses on the
phrase "in addition to the board's recoverable costs" and
defines 	"recoverable" 	as 	"capable 	of 	being 	recovered."
Explaining that costs are not recoverable in the absence of a
statutory 	or 	contractual 	provision 	authorizing 	such 	an
award, the state asserts that the legislature's use of the
phrase "recoverable costs" reflected the legislature's under-
standing that some other statute, such as one of those in ORS
chapter 20, provided the authority for allowing costs and dis-
bursements. The state finds further support for that conclu-
sion in the legislature's decision to allow the board a limited
attorney fee recovery "in addition to" the board's recoverable
costs.
We first examine the text and context of the disputed
provision to determine its meaning. In doing so, we are not
constrained by the interpretive arguments proffered by the
parties. See Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997)
("In construing a statute, this court is responsible for identi-
fying the correct interpretation, whether or not asserted by
the parties.").
As noted, ORS 20.310(1) authorizes the Court of
Appeals to allow costs and disbursements to the prevailing
party unless some other statute prohibits the award in the
particular case. We must decide whether ORS 144.335(12)
contains such a prohibition. For ease of discussion, we again
set out the text of ORS 144.335(12):
"If the court determines that the motion filed under sub-
section (6) of this section, when liberally construed, fails to
state a colorable claim for review of the board's order, the
court may order the petitioner to pay, in addition to the
board's recoverable costs, attorney fees incurred by the
board not to exceed $100. If the petitioner moves to dismiss

140 	Blacknall v. Board of Parole
the petition before expiration of the time provided for in
subsection (6) of this section, the court may not award costs
or attorney fees to the board."
Applying the familiar grammatical principle that a phrase
set off by commas functions as a parenthetical, we see that, if
petitioner failed to state a colorable claim, then the Court of
Appeals could award both "the board's recoverable costs,"
and "attorney fees incurred by the board not to exceed $100."
See Curly's Dairy u. Dept. of Agriculture, 244 Or 15, 21, 415
P2d 740 (1966) (punctuation may assist with discerning leg-
islative intent). Thus, the text of ORS 144.335(12) affirma-
tively authorized the recovery of $100 in attorney fees while
recognizing that some other source might authorize an award
of"recoverable costs."
Both sentences in ORS 144.335(12) begin with the
word "if." Webster's Third New lnt'l Dictionary 1124 (una-
bridged ed 2002) defines "if," in part, as "1 a: in the event
that: in case * * * b: allowing, conceding, or granting that
* * * c: SUPPOSING * * * d: so long as: on condition that."
Applying the ordinary meaning of the word "if," we see that
each sentence in ORS 144.335(12) set out a condition that
must be met and a result that would occur "in the event that"
or "so long as" that condition was satisfied. First, "in the
event that" or "so long as" petitioner failed to state a colorable
claim, then the court could require petitioner to pay "the
board's recoverable costs" and "attorney fees incurred by the
board not to exceed $100." Second, "in the event that" or "so
long as" petitioner timely filed a motion to dismiss, then the
court was prohibited from awarding either costs or attorney
fees.
The legislature, however, did not express itself in
regard to cases, such as this one, in which neither condition
stated in ORS 144.335(12) applied. The legislature also did
not incorporate into ORS 144.335(12) any terms suggesting
that that statute was the exclusive source of court authority
for an award of costs in this context.
We previously have observed that, "[d]epending on
the context, the legislature's silence can signify a variety of
policy choices***." State u. Hess, 342 Or 647, 660, 159 P3d
309 (2007). We conclude that the legislature's silence in ORS

Cite as 348 Or 131 	141
144.335(12) in the respects identified above signifies an
intent not to 	disturb 	the court's 	authority 	under ORS
20.310(1) to award costs where the prohibition on awarding
costs or attorney fees in ORS 144.335(12) did not apply. Two
clues support that view. First, we agree with the state that
the phrase "recoverable costs" in ORS 144.335(12) indicated
the legislature's recognition that some other source would
authorize the recovery of costs. That the legislature enacted
ORS 144.335(12) within an existing statutory framework
that included ORS 20.310(1), but did not specifically bar the
allowance of costs and disbursements under other statutes,
tends to suggest that the legislature did not so intend. Sec-
ond, ORS 144.335(12) expressly prohibited an award of costs
or attorney fees to the board if a petitioner timely moved to
dismiss his or her petition for judicial review. If the legisla-
ture had intended to prohibit an award of costs and attorney
fees in a different circumstance, such as where a petitioner
did not move to dismiss the petition for judicial review, the
legislature could have done so expressly. It did not do so.
Petitioner also argues that allowing the Court of
Appeals to impose a cost award against a petitioner who has
stated a colorable claim defeats the legislative intent of pro-
viding petitioners with a disincentive to pursue frivolous
claims, because it places "a petitioner who fails to state a col-
orable claim equally on par with a petitioner who overcomes
that hurdle." Petitioner is mistaken. As explained above,
under ORS 144.335(12), a petitioner who filed a motion for
leave to proceed and presented a colorable claim, but ulti-
mately did not prevail, could have costs imposed against him
or her pursuant to ORS chapter 20, including the $100 pre-
vailing party fee. In contrast, a petitioner who failed to pres-
ent a colorable claim could have costs imposed against him or
her (including the $100 prevailing party fee) and, in addition,
could be required to pay "attorney fees incurred by the board
not to exceed $100."
The Court of Appeals opinion and much of the par-
ties' briefing focuses on the relevance of two previous deci-
sions by this court that are part of the statutory context:
De Young /Thomas v. Board of Parole, 332 Or 266, 27P3d110
(2001) and Atkinson v. Board of Parole, 341Or382, 143 P3d
538 (2006). See Wal-Mart Stores, Inc. v. City of Central Point,

142 	Blacknall v. Board of Parole
341 Or 393, 397, 144 P3d 914 (2006) (prior case law inter-
preting statute considered in first step of statutory analysis).
As context, those cases may illuminate or explain the mean-
ing of the statutory text.
The issue in DeYoung /Thomas was whether ORS
chapter 20 authorized the Court of Appeals to award costs
and disbursements to the board when the board had pre-
vailed on judicial review of one of its orders. The Court of
Appeals had granted the board's motions to dismiss in two
separate parole board cases (consolidated for review), desig-
nated the board a prevailing party, and allowed costs and dis-
bursements under ORS 20.120. Parole petitioners sought
review in this court and argued that, notwithstanding ORS
20.120, the board could not recover costs. The petitioners first
noted correctly that "costs and attorney fees are controlled
entirely by statute and are not recoverable in the absence of a
statute or contractual provision that authorizes such an
award." 332 Or at 277. The petitioners contended that,
because "there [was] no specific statutory authority in the
statutes that govern judicial review of Board orders[, i.e.,
ORS 144.335 (1999)] for awarding costs to the prevailing
party," no statute authorized an award of costs. Id. (emphasis
in original). The court in DeYoung I Thomas rejected the
proposition that the statutory authority to award costs must
be located in the statutes that governed the specific type of
judicial review at issue. To the contrary, the court explained
that an earlier decision, Compton v. Weyerhaeuser, 302 Or
366, 730 P2d 540 (1986), already had clarified that ORS
20.120 was an independent source of authority for allowing
costs on judicial review of an agency order. The court thus
concluded that, because ORS 20.120 authorized an allowance
of costs, the Court of Appeals had not erred in awarding costs
to the board.
In Atkinson, the petitioner sought review of the
Court of Appeals' denial of his motion for leave to proceed
with judicial review, arguing that he had presented a "sub-
stantial question of law." In construing the meaning of the
"substantial question of law" standard as used in ORS
144.335 (2005), this court explained how that standard fit
within the broader scheme of judicial review of board orders:

Cite as 348 Or 131 (2010) 	143
"ORS 144.335 thus establishes two different standards
for the court to use when considering the relative merit of
motions for leave to proceed. Between those standards, the
'colorable claim' standard embodies a lower quantum of
merit than the 'substantial question of law' standard. Such
a conclusion is apparent from the legislature's desire to dis-
courage motions failing to satisfy the former [colorable
claim] standard by making the petitioners filing those
motions subject to costs and fees. Conversely, the legislature
chose not to penalize the petitioners filing motions that fail
to satisfy the latter standard, subjecting them to only dis-
missal, with no monetary penalty."
Atkinson, 341 Or at 388-89 (citations omitted; emphasis
added). After comparing the substantial question oflaw stan-
dard with the colorable claim standard, the court in Atkinson
concluded that "a 'substantial question of law' is a soundly
based, firmly supported question capable of adjudication as
to what the law is that is presented by the facts of the partic-
ular case at bar." Id. at 390.
In this case, the Court of Appeals framed the issue as
"whether there is anything in the Supreme Court's decision
in Atkinson that suggests that the court intended to overrule
its holding in DeYoung/Thomas." 223 Or App at 299. The
Court of Appeals distinguished Atkinson as a case that
decided a different issue-the meaning of the phrase "sub-
stantial question of law"-and thus the court characterized
the passage from Atkinson quoted above as dictum. The court
then 	concluded 	that this 	court's 	decision 	in 	De Young I
Thomas controlled the disposition of the case at bar, because
the court in that case had upheld a cost award on facts iden-
tical to this case.
Petitioner contends that the Court of Appeals erred
by concluding that the holding in De Young /Thomas controls
the instant case. According to petitioner, DeYoung/Thomas
is inapposite because "the statutory scheme has fundamen-
tally changed" since July 6, 2001, the date of the court's deci-
sion in De Young /Thomas. We agree with petitioner, at least
in 	part. 	De Young I Thomas 	concerned judicial review 	of
parole orders under ORS 144.335 (1999). That version of the
statute contained no reference to cost awards. The provision
at issue in this case, ORS 144.335(12), was added in 2001,

144 	Blacknall v. Board of Parole
when the legislature amended ORS 144.335 and added the
motion practice that we described above. Or Laws 2001, ch
661, § 1. 5 It follows that the decision in De Young /Thomas
does not determine the meaning of the 2005 version of ORS
144.335(12), a later enacted statutory provision.
The state argues that the decision in De Young I
Thomas stands for the broader point that the provisions of
ORS chapter 20 govern the award of costs on review of an
agency order, subject to only one exception: when judicial
review of the agency's order is subject to review under the
Administrative Procedures Act (APA), ORS chapter 183. The
state relies on a passage in De Young /Thomas in which this
court stated that, according to an earlier decision of this
court, Compton, 302 Or at 369, "ORS 20.120 authorizes cost
awards to the prevailing party in any judicial review that the
APA does not govern (a category that includes the present
cases as they were considered in the Court of Appeals)."
De Young I Thomas, 332 Or at 280 (footnote omitted). As we
discuss below, the state's reading of that sentence is too
broad.
In 	Compton, 	a 	workers' 	compensation 	claimant
sought reconsideration of an Oregon Supreme Court order
that had awarded costs against him. He argued that the
award of costs in his case was inconsistent with a previous
reversal of a cost award in Shetterly, Irick & Shetterly v.
Emp. Div., 302 Or 139, 727 P2d 117 (1986). The court in
Shetterly had explained that the legislative history revealed
that, in enacting the judicial review provisions of the APA,
the legislature had considered authorizing recovery of costs
by an agency against a private claimant on judicial review of
a contested case, but had decided not to authorize such an
award. The court in Compton pointed out that the factor
that distinguished the two cases was that Shetterly had
involved judicial review of an employment division order
under the APA, but Compton involved judicial review of a
workers' compensation order, which was not subject to the
APA:
5 The governor signed House Bill (HB) 2348 (2001) into law on June 28, 2001,
and the law took effect on January 1, 2002. See Or Laws 2001, ch 661, § 1 (so
noting).

Cite as 348 Or 131 	145
"Shetterly held effectively that ORS 183.497 superseded
ORS 20.120 with regard to the cases within the purview of
ORS 183.497. However, ORS 20.120 still controls cases not
subject to the APA costs limitation. Compton is such a
case."
302 Or at 369.
Properly understood, the issue in Shetterly, De Young I
Thomas, and Compton was whether the statutory scheme
governing judicial review of the agency order at issue con-
tained a specific prohibition on the allowance of costs that
operated in a particular case to nullify the general authority
to award costs in ORS chapter 20. In Shetterly, in which the
APA governed judicial review, the court determined that the
APA did contain such a prohibition on an award of costs. In
contrast, in Compton, the court concluded that workers' com-
pensation statutes in effect at the time did not prohibit an
award of costs against a workers' compensation claimant
when the Workers' Compensation Board prevailed onjudicial
review of its own order. See Fromme v. Fred Meyer, Inc., 306
Or 558, 560, 761 P2d 515 (1988) (so recognizing). Similarly,
the court concluded in DeYoung/Thomas that ORS 144.335
(1999) contained no prohibition on an allowance of costs to
the prevailing party on judicial review.
When considered in context, Compton and De Young I
Thomas do not stand for the proposition that the APA is the
only statutory scheme that can limit a court's general author-
ity to award costs. See Fromme, 306 Or at 560 (recognizing
that, in 1987, the legislature overruled Compton by amend-
ing ORS 656.236(2) to prohibit the assessment of costs on
judicial review against unsuccessful workers' compensation
claimants). Rather, those cases acknowledge only what ORS
20.310 expressly provides: a prevailing party generally may
recover costs and disbursements unless another, more spe-
cific statute provides otherwise.
As for Atkinson, petitioner contends that this court
held there that ORS 144.335(12) prohibited the Court of
Appeals from awarding costs to a petitioner who had stated a
colorable claim. Petitioner focuses on a sentence in Atkinson
that stated that a petitioner who failed to state a colorable
claim was "subject to costs and fees," but a petitioner who

146 	Blacknall v. Board of Parole
stated a colorable claim would suffer "no monetary penalty."
It is clear, however, that that observation was intended to
contrast the legal standard of a substantial question of law
with that of a colorable claim. The court's discussion included
no explanation or analysis of the phrase "no monetary pen-
alty." Atkinson did not involve, much less decide, the propri-
ety of an award of costs. Accordingly, the court's reference to
"no monetary penalty" in Atkinson does not dictate any par-
ticular outcome in this case. See State v. McDonnell, 343 Or
557, 567, 176 P3d 1236, cert den,~-· US·····-, 129 S Ct 235,
172 L Ed 2d 180 (2008) (doctrine of stare decisis does not
require deference to prior case holdings when those cases did
not involve and determine precise issue presented by case at
bar).
In sum, an examination of text and context reveals
that the legislature did not intend that ORS 144.335 would
prohibit an award of costs in this case. Both parties also have
offered legislative history that they contend supports their
position. We have examined the legislative history behind
ORS 144.335(12) and we find nothing in the legislative
history that would require a different conclusion. No part
of the legislative history indicates that, by enacting ORS
144.335(12), the legislature intended to eliminate a court's
general authority under ORS chapter 20 to award costs and
disbursements if a 	petitioner has presented a 	colorable
claim. 6
From the foregoing, we conclude that, in enacting
ORS 144.335(12), the legislature used a carrot-and-stick
approach to achieve its goal of reducing the number of mer-
itless cases pursued on judicial review. The carrot is found in
the second sentence of ORS 144.335(12), which insulated
petitioners from an award of costs and disbursements if they
" Petitioner also argues that, even if ORS 144.335(12) did not prohibit an
award of costs and disbursements generally, the Court of Appeals abused its dis-
cretion by awarding costs and disbursements in this particular case. First, peti-
tioner submits that the Court of Appeals failed to make at least a cursory record
reflecting its exercise of discretion to award costs to the board. Second, petitioner
contends that, in the circumstances presented by this case, where petitioner's case
became moot through no fault of petitioner, such an award is inequitable and
unduly punitive. Petitioner failed to preserve those arguments before the Court of
Appeals and also failed to raise those issues in his petition for review. Accordingly,
we decline to address them.

Cite as 348 Or 131 (2010) 	147
voluntarily dismissed their petition within the time stated.
The stick is found in the first sentence, which authorized an
award of "attorney fees incurred by the board not to exceed
$100," in addition to the board's costs recovered under ORS
chapter 20, if a petitioner decided to pursue a petition that
failed to raise a colorable claim. However, unless a petitioner
was entitled to the protection described in the second sen-
tence of ORS 144.335(12)-which petitioner here was not-
ORS 144.335(12) did not limit the court's authority under
ORS 20.310(1) to award costs and disbursements to the
board.
ORS 	144.335(12) did not prohibit the 	Court of
Appeals from awarding costs and disbursements to the board
pursuant to ORS chapter 20, even if a petitioner had pre-
sented a colorable claim on judicial review, unless the peti-
tioner had timely moved to dismiss the petition pursuant to
ORS 144.335(6). Accordingly, the Court of Appeals did not err
in awarding costs and disbursements in this case.
The decision of the Court of Appeals is affirmed.