dissenting.
Polk County Housing Authority (PCHA) argues (incorrectly, in my view) that it is not a “public contracting agency” under ORS 279.029 and that the contract is therefore not one for which a bond is required for purposes of ORS 279.542. Platt and Adolfs agree that that is the relevant question but argue for the opposite answer. Instead of addressing that question, however, the majority decides the appeal on a completely different ground that no party raised in either the trial court or here. The basis of the majority’s decision is that, under ORS 279.029(5), “bonds are not required for emergency contracts” like the one involved in this case. 157 Or App at 85.
The majority explains:
“We acknowledge that none of the parties made the foregoing arguments about the proper construction of ORS 279.542. The arguments that they do raise, however, require us to interpret and apply ORS 279.542 generally. Indeed, their arguments require us more particularly to interpret and apply the meaning of the phrase ‘[i]f the contract is one for which a bond * * * is required.’ Merely because both parties propose incorrect interpretations of the statute does not mean that we are bound to choose between the incorrect proposals. We cannot be painted into an interpretive corner by the arguments of the parties. Miller v. Water Wonderland Improvement District, 326 Or 306, 309 n 3, 951 P2d 720 (1998); Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997).”
157 Or App at 85-86.
The foregoing statement by the majority, and its dis-positional reliance on ORS 279.029(5), seem to me to blur and merge two distinct concepts into one. The first is that the parties’ mutually incorrect arguments about the meaning of a statute cannot force a court to choose one of the incorrect interpretations as its own, or to give precedential force to an erroneous interpretation. That concept is correct. The second is that, if the parties present any arguments about a statute, erroneous or not, the court may or must take upon itself the responsibility “to interpret and apply” the whole statute, *88independently of the parties’ arguments, and to award victory to whichever party fares better under the court’s interpretation, without regard for whether the party has argued anything that resembles what the court has said. In my view, that concept is a mistaken one.
The two concepts are not simply different sides of one coin that are necessarily or inherently intertwined in their operation. To the contrary, the protection of a court’s precedential and interpretive integrity is perfectly compatible with the preservation of its neutrality. As we explained in PacifiCorp v. City of Ashland, 89 Or App 366, 370, 749 P2d 1189, rev den 305 Or 594 (1988):
“Although it is correct that courts should not make the parties’ arguments for them, it is equally correct that the parties cannot compel a court to misconstrue a statute by arguing only incorrect interpretations of it. The balance between those principles is not always easy to strike. The appropriate answer might sometimes be that a party which would benefit from a statute if it were correctly construed, but which does not urge that construction, is not entitled to prevail.”
In other words, a court may reject both parties’ incorrect arguments about a statute’s meaning without proceeding to hold that one party or the other “wins” under the correct argument that it has not made.
In the passage that I have quoted from its opinion, the majority cites two recent Supreme Court decisions as authority for its position. However, I do not agree with the majority’s understanding of them. In Stull, the court said two things before addressing the merits of the unraised “alternate” argument. It first noted:
“We find that the issue was preserved sufficiently under the standards set out in State v. Hitz, 307 Or 183, 766 P2d 373 (1988), because plaintiff raised and preserved the broader legal issue — whether the trial court erred in holding that his claims were barred by the statute of limitations. Under the rationale in Hitz, a specific alternate argument regarding that issue can be raised for the first time in this court.”
Id. at 77. However, the court then said in the next paragraph of its opinion:
*89“[T]he question is one of statutory interpretation. In construing a statute, this court is responsible for identifying the correct interpretation, whether or not asserted by the parties.”
Id. The court’s first statement, with its reliance on Hitz, would appear to be sufficient justification for its reaching the unraised argument without any need for the second. Hitz was concerned with the sufficiency of the preservation for an argument on appeal, not with a failure like the one here to make an argument on appeal. Correspondingly, it is unclear whether the second statement was meant as a supplemental rationale for reaching the argument or was meant solely as an iteration of the court’s jurisprudential responsibility not to misconstrue statutes.
In Miller, the court relied on ORS chapter 554 to decide that the plaintiff was entitled to inspect and copy the defendant district’s records although the plaintiffs claim was based on the Public Records Law in ORS chapter 192. The court explained in a footnote:
“The Court of Appeals noted that ORS chapter 554 ‘contains specific provisions granting an individual the right to examine the records of an ORS chapter 554 corporation,’ but took the view that plaintiff did not claim entitlement under that statute. * * *
“However, the parties may not prevent a court from noticing and invoking an applicable statute by relying only on other sources of law. Furthermore, defendant expressly relied on the availability of relief under ORS 554.120.”
Id. at 309 n 3. (Emphasis in original.) Again, it is at least open to doubt which one — or both — of two things the court regarded as the justification for deciding the case on a theory that the prevailing party had not raised: The notion that the court is free to look beyond the contentions offered by the parties, or the fact that the provision that became the basis for the decision was relied on by a party. See PacifiCorp, 89 Or App at 370-71.
In my view, it is accordingly unclear from Stull and Miller whether, independently or in conjunction with other reasons, the duty of the courts not to misinterpret statutes was the reason why the court felt justified in deciding the *90case based on issues not raised by the parties. Here, conversely, the majority expressly decides the case on the basis of an unraised issue, and it explains its doing so solely by reference to the court’s responsibility not to misinterpret statutes. Moreover, this is not a situation, as in Stull, where the principle of State v. Hitz can support a decision based on an unraised argument that is subsumed within a broader issue that the parties do raise. The issue that the parties raise— whether PCHA is subject to the bid laws at all — differs in substance and kind from the issue the majority decides— whether the “emergency” exception applies to the contract and obviates the bond requirement. The fact that the two issues arise out of provisions that the legislature has chosen to codify in different parts of the same statute does not make the issues the same.
As explained by Justice Durham in his dissent in Miller, it violates the fundamental fairness of the litigation process to decide a case on a basis that was not asserted by the parties at trial or on appeal:
“Plaintiff gave neither lower court a meaningful chance to consider and decide whether defendant had violated any duty imposed on it by ORS 554.120(1). Because rules regarding preservation of error protect the fundamental fairness of litigation as a case advances through the appellate process, we should enforce those rules, not disregard them. See Davis v. O’Brien, 320 Or 729, 737, 891 P2d 1307 (1995):
“ ‘[T]he rules pertaining to preservation of error in trial courts are intended to advance goals such as ensuring that the positions of the parties are presented clearly to the initial tribunal and that parties are not taken by surprise, misled, or denied opportunities to meet an argument.’ ”
Miller, 326 Or at 314. See also J. Arlie Bryant, Inc. v. Columbia River Gorge Comm., 132 Or App 565, 568, 889 P2d 383, rev den 321 Or 47 (1995).
*91Because PCHA presents no persuasive basis for reversal, I would affirm the judgment and, therefore, I respectfully dissent.1
Nothing in this opinion is meant to suggest that there are never exceptional occasions on which the courts may and should decide cases on grounds other than those argued by the parties. The point with which I disagree, in this case and in general, is that the courts must always base their decisions on arguments the parties do not make in cases that turn on the interpretation of statutes and in which no party relies on the “winning” argument.
In that context, as much as any other, the usual roles of the advocate and the adjudicator should be observed. Insofar as Stull, Miller, or the majority opinion in this case are premised on some understanding about the peculiar importance of statutes in our system, I might agree with their premise. Nevertheless, the role of the courts in our system is to decide cases. The decision of cases sometimes requires the interpretation of statutes; however, the interpretation of statutes is not a goal of the adjudicative process in itself, independently of the decision-making function of which it is sometimes a part.