Betschart v. Oregon

103 F.4th 607

Walter BETSCHART, on their behalf, and on behalf of all others similarly situated;

Joshua Shane Bartlett, on their behalf, and on behalf of all others similarly situated;

Caleb Aiona, on their behalf, and on behalf of all others similarly situated;

Tyrik Dawkins, on their behalf, and on behalf of all others similarly situated;

Joshua James-Richards, on their behalf, and on behalf of all others similarly situated;

Taniela Kini Kin Latu, on their behalf, and on behalf of all others similarly situated;

Richard Owens, on their behalf, and on behalf of all others similarly situated;

Leon Michael Polaski, on their behalf, and on behalf of all others similarly situated;

Alex Sarat Xotoy, on their behalf, and on behalf of all others similarly situated;

Timothy Wilson, on their behalf, and on behalf of all others similarly situated;

Jeffery Davis; Richard Aaron Carroll Sr.; Jennifer Lyn Brunette;

Nicholas Waldbillig; Derek Pimeno Zavala; Curtis Ray Anthony Remington;

Crista Jean Davis; Nichole Lynn Whalen; Jacob Issac Nathaniel Cole, Petitioners - Appellees, v. State of OREGON, Respondent - Appellant,

Washington County Circuit Court Judges, in their official capacities;

Patrick Garrett, Sheriff, Washington County Sheriff, in his official capacity, Respondents.

Walter Betschart; Joshua Shane Bartlett; Caleb Aiona; Tyrik Dawkins;

Joshua James-Richards; Taniela Kini Kin Latu; Richard Owens;

Leon Michael Polaski; Alex Sarat Xotoy; Timothy Wilson, Petitioners - Appellants, v. State of Oregon; Washington County Circuit Court Judges, Respondents - Appellees.

No. 23-2270

No. 23-3560

United States Court of Appeals, Ninth Circuit

Argued and Submitted February 6, 2024 Pasadena, California

Filed May 31, 2024

Appeal from the United States District Court for the District of Oregon, Michael J. McShane, District Judge, Presiding, D.C. No. 3:23-cv-01097-CL

Julie P. Vandiver (argued), Jessica G. Synder, Peyton E. Lee, and Robert B. Hamilton, Assistant Federal Public Defenders; Stephen R. Sady, Chief Deputy Federal Public Defender; Fidel Cassino-DuCloux, Federal Public Defender; Federal Public Defender's Office, Portland, Oregon; David F. Sugerman and Nadia H. Dahab, Sugerman Dahab, Portland, Oregon; for Petitioners-Appellees/ Appellants.

Michael A. Casper (argued), Senior Assistant Attorney General; Benjamin Gutman, Solicitor General; Ellen F. Rosenblum, Oregon Attorney General; Office of the Oregon Attorney General, Salem, Oregon; James Aaron, Assistant Attorney General, Oregon Department of Justice, Salem, Oregon; for Respondent-Appellant/ Appellee.

Kenneth A. Kreuscher and Kassidy N. Hetland, Oregon Innocence Project, Portland, Oregon, for Amicus Curiae Oregon Innocence Project.

Trisha Trigilio and Emma Andersson, American Civil Liberties Union Foundation, Criminal Law Reform Project, New York, New York; Jason D. Williamson, Center on Race, Inequality, and the Law, New York University School of Law, New York, New York; Rosalind M. Lee, OCDLA Amicus Committee, Rosalind Manson Lee LLC, Eugene, Oregon; Kristin Asai, Holland & Knight LLP, Portland, Oregon; Kelly Simon, American Civil Liberties Union of Oregon, Portland, Oregon; Gia L. Cincone, NACDL Amicus Committee, San Francisco, California; Athul K. Acharya, Public Accountability, Portland, Oregon; for Amici Curiae Civil Rights Litigators.

Before: John B. Owens, Patrick J. Bumatay, and Salvador Mendoza, Jr., Circuit Judges.

Opinion by Judge Owens;

Dissent by Judge Bumatay

OPINION

OWENS, Circuit Judge:

The state arrests a citizen and incarcerates him pending trial. Days, weeks, and months pass without any legal representation. He seeks relief from the authorities—surely a lawyer should help him? In response, he gets a shoulder shrug, a promise that they are "working on it," and nothing more. He remains in jail, without legal counsel or any relief in sight.

You might think this passage comes from a 1970s State Department Report on some autocratic regime in the Soviet Bloc. Unfortunately, we do not need to go back in time or across an ocean to witness this Kafkaesque scene.

This is the State of Oregon in 2024.

The Supreme Court outlawed this practice more than sixty years ago, in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which held that the Sixth and Fourteenth Amendments guaranteed trial counsel for indigent criminal defendants. The Court explained: "lawyers in criminal courts are necessities, not luxuries. The right of one charged with [a] crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours." Id. at 344, 83 S.Ct. 792. The Sixth Amendment right to counsel, as outlined in Gideon, is the only "watershed" right that the Supreme Court has recognized in the habeas context. See, e.g., Edwards v. Vannoy, 593 U.S. 255, 267, 141 S.Ct. 1547, 209 L.Ed.2d 651 (2021).

Yet, due to an "ongoing public defense crisis" of its own creation, Oregon does not provide indigent criminal defendants their fundamental right to counsel despite Gideon's clear command. For several reasons, there are not enough qualified attorneys in Oregon to represent criminal defendants, some of whom remain detained without counsel. Even worse, Oregon cannot proceed in prosecuting these defendants "unless and until an attorney is appointed to represent" them. Accordingly, an innocent person may languish in jail for months awaiting trial, simply because no lawyer has been provided to review or investigate his case.

Those that manage to appear before a judge can count on little help and scant information. When one Petitioner asked the judge at a pretrial hearing when he would be appointed counsel, the judge simply responded, "I don't know." When the Petitioner said that continuing without a lawyer was unconstitutional, the judge responded that the Petitioner "won't get a disagreement from me or from the prosecutor that you should have a lawyer. It is an unfortunate circumstance that we are in with the state." The hearing then proceeded, with the Petitioner left without counsel. This is no anomaly—the record contains many similar stories, including a Petitioner who remained in jail without counsel for nearly a year.

A class of incarcerated indigent criminal defendants awaiting trial in Oregon challenged this untenable situation via habeas corpus in federal court. Rather than avoid a "judicial jailbreak" by making counsel available to defendants as the Constitution requires, Oregon insisted on fighting the solution. After extensive litigation, the district court issued a preliminary injunction requiring, among other things, that "counsel . . . be provided within seven days of the initial appearance," and "[f]ailing this, defendants must be released from custody, subject to reasonable conditions imposed by [Oregon] Circuit Court judges." Considering the extraordinary (and extremely prejudicial) circumstances facing criminal defendants in Oregon in direct violation of Gideon, we cannot say that the district court abused its discretion in issuing this preliminary injunction, and so we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Oregon's Public Defense Crisis

To understand how this Sixth Amendment nightmare became a reality, we review how Oregon provides counsel to indigent defendants awaiting trial. Rather than employ state or county public defenders, Oregon contracts with individual private attorneys for these services. Until January 2024, the Public Defense Services Commission ("PDSC") oversaw Oregon's public defense system. The PDSC made a bad situation worse when, in 2021 and 2022, it altered the rules governing compensation and caseloads for these private attorneys. These changes rendered public defense work financially untenable, and many private attorneys stopped taking criminal defense cases. While individuals continued to be arrested and charged with crimes, there were no longer enough lawyers to represent them.¹ Between March and June 2023 alone, the number of unrepresented criminal defendants increased by 198 percent. By September 2023, that number had grown another 48 percent, with almost 3,000 people awaiting their Gideon-guaranteed counsel. More than 100 of these defendants remain incarcerated pretrial.²

B. The Litigation

In July 2023, ten indigent defendants in custody awaiting trial without representation in Washington County filed a joint habeas corpus petition in federal district court, seeking class status and alleging violations under the Sixth, Eighth, and Fourteenth Amendments. They moved for a Temporary Restraining Order ("TRO") requiring release if they were not appointed counsel within seven days. The district court provisionally certified "individuals in physical custody in Washington County Detention Center" as the "Custody Class" and entered a TRO. Under the TRO, if class members were not provided representation within ten days of their initial appearance, or within ten days of their previous counsel's withdrawal, Oregon would have to release them.

The State of Oregon subsequently intervened as Respondent. Petitioners filed their Second Amended Petition for habeas corpus, adding unrepresented defendants across the state, both in jail and out of jail on restrictive conditions.³ Petitioners requested that the district court convert the TRO into a preliminary injunction for the Custody Class and reduce the time in which counsel must be appointed from ten days to forty-eight hours.

C. The Injunction

After briefing and extensive argument, the district court granted the motion for a preliminary injunction. It declined to abstain under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), holding that "this remains a case of 'extraordinary circumstances' that demands federal intervention." The court rejected Oregon's argument that "Petitioners can challenge their right to counsel after trial without risk[ing] irreparable harm," reasoning that "the Sixth Amendment entitles the accused to adequate representation at all...