Filed: July 6, 2001

DENNIS MARTIN DEYOUNG,

Petitioner on Review,

v.

BOARD OF PAROLE AND
POST-PRISON SUPERVISION,

Respondent on Review.

___________________________________

EDWARD ANDREW THOMAS,

Petitioner on Review,

v.

BOARD OF PAROLE AND
POST-PRISON SUPERVISION,

Respondent on Review.

On review from the Court of Appeals.*

Argued and submitted November 2, 2000.

Daniel M. Carroll, Deputy Public Defender, Salem, argued the cause for petitioners on review. With him on the brief were David E. Groom, State Public Defender, and Irene B. Taylor, Deputy Public Defender.

Rolf C. Moan, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Carson, Chief Justice, and Gillette, Durham, Leeson, and Riggs, Justices.**

GILLETTE, J.

The orders of the Court of Appeals are affirmed.

*On judicial review of orders of the Board of Parole and Post-Prison Supervision.

**Van Hoomissen, J., retired on December 31, 2000, and did not participate in the decision of this case; Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case; De Muniz, J., did not participate in the consideration or decision of this case.

GILLETTE, J.

These two petitions, consolidated for briefing, argument, and opinion, seek review of dismissals by the Court of Appeals of petitions for judicial review of orders issued by the Board of Parole and Post-Prison Supervision (Board). The petitions challenge the dismissal orders of the Court of Appeals only to the extent that they designate the Board as the prevailing party on appeal and allow costs -- specifically, a $100 prevailing party fee -- payable by petitioners. Petitioners argue that, under the circumstances, the Court of Appeals had no authority to designate a prevailing party or to award costs. We conclude that the Court of Appeals had that authority and, accordingly, affirm.

Factually, the two cases differ only slightly. Petitioner DeYoung sought judicial review of a Board order that denied him re-release after a parole violation and set a new release date five years in the future. The Board moved to dismiss the petition on the ground that its order was a "decision relating to a release date" and, therefore, was exempt from judicial review. See ORS 144.335(3) ("[B]oard's order is final and is not subject to judicial review when the board makes any decision relating to a release date"); Quintero v. Board of Parole, 329 Or 319, 986 P2d 575 (1999) (affirming dismissal of petition for judicial review of order denying re-release and setting new release date). The Court of Appeals granted the motion, issuing a dismissal order that designated the Board as the prevailing party and allowed costs in the amount of $100 (as a prevailing party fee under ORS 20.190), payable by DeYoung.

DeYoung moved for reconsideration of the award of costs arguing, inter alia, that there was no statutory authority for recovering costs from either party in a review of an order of the Board. The Court of Appeals denied the motion, stating in its order that it had authority to award costs, including the prevailing party fee provided in ORS 20.190(1), under ORS 20.120 and ORS 20.310, both set out post. DeYoung then brought the present petition for review.

Petitioner Thomas's case also began when he sought judicial review of a Board decision revoking post-prison supervision and setting a new release date. However, because the Board's supervisory authority over him expired before the Court of Appeals took any action, the Board moved to dismiss review as moot. The Court of Appeals granted the motion, issuing a dismissal order that designated the Board as the prevailing party, allowed costs payable by Thomas, and included a $100 money judgment, again as a prevailing party fee under ORS 20.190.

Thomas moved to recall the appellate judgment and petitioned for reconsideration of that part of the dismissal order that imposed costs. The Court of Appeals denied the motion, this time citing ORS 20.120 and ORS 20.190 as authority for the award of costs and prevailing party fee. Thomas then sought review by this court, and we consolidated his petition with that of DeYoung.

As noted, the Court of Appeals cited three statutes as authority for its decision to impose costs on petitioners. The first, ORS 20.120, provides:

"When the decision of an officer, tribunal, or court of inferior jurisdiction is brought before a court for review, such review shall, for all the purposes of costs and disbursements, be deemed an appeal to such court upon errors in law, and costs therein shall be allowed and recovered accordingly."

The second, ORS 20.310, provides, in part:

"(1) In any appeal to the Court of Appeals or review by the Supreme Court, 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. * * *

"(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 reasonable cost for any bond or irrevocable letter of credit, the prevailing party fee provided for under ORS 20.190, the printing, including the abstract 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 necessarily forming part of the record on appeal."

Finally, ORS 20.190 provides for a prevailing party fee to be awarded in addition to other costs and disbursements:

"(1) Except as provided in subsections (2) and (5) of this section, a prevailing party in a civil action or proceeding who has a right to recover costs and disbursements in the following cases also has a right to recover, as a part of the costs and disbursements, the following additional amounts:

"(a) In the Supreme Court or Court of Appeals, on an appeal, $100."

Petitioners contend that the foregoing statutes do not authorize cost awards in their cases. They argue, first, that, because their petitions for judicial review were dismissed for lack of jurisdiction, the Board was not a "prevailing party" for purposes of ORS 20.310 and ORS 20.190. Petitioners reason that, if the Court of Appeals lacked jurisdiction to decide the merits of their petitions, it also lacked authority to designate a prevailing party or award costs.

In support of that reasoning, petitioners point to general case law pertaining to how a court must respond when it finds that it lacks jurisdiction over a case. See, e.g., Oregonians for Health and Water v. Kitzhaber, 329 Or 339, 334, 986 P2d 1167 (1999) (dismissing petition for review raising issue outside scope of statute the conferred limited direct review authority on Supreme Court); Meyer v. Joseph, 295 Or 588, 668 P2d 1228 (1983) (dismissing certified appeal sua sponte on discovering lack of jurisdiction). Petitioners also rely on two "prevailing party" cases, Berger Farms v. First Interstate Bank, 330 Or 16, 21-22, 995 P2d 1159 (2000), and Stelljes/Dumler v. State Board of Parole, 307 Or 365, 769 P2d 177 (1989), which they argue stand, respectively, for the following propositions: (1) a court may award costs only if it has jurisdiction to decide the case or appeal on the merits; and (2) a court may award costs only if a party actually prevails "on the merits."

Petitioners misconstrue Berger Farms and Stelljes/Dumler. Those jurisdiction cases stand only for the proposition that an appellate court must dismiss a case and must refrain from making any decision on the merits when it lacks jurisdiction. They do not hold either that designating a prevailing party is a decision on the merits or that such a designation otherwise is precluded when an appeal or review is dismissed. Although both cases contain some statements, discussed below, that superficially seem useful to petitioners, it is clear, on closer inspection, that the actual holdings are not on point.

Berger Farms involved a contract dispute. The contracts in question contained clauses to the effect that all disputes arising out of the contracts would be resolved by binding arbitration in accordance with the Federal Arbitration Act (FAA), 9 USC