Oregon’s lack of behavioral health treatment beds continues to provide new and expanding employment for lawyers, as long-running litigation around the Oregon State Hospital increasingly has put a federal court in charge of managing its day-to-day operations.
Based on a lawsuit filed 22 years ago, the recently revived court standoff around the facility keeps giving birth to new litigation offspring in state and federal court. But some of the lawyers involved in the long-running case are expressing what amounts to concern and frustration.
Why? There's no shortage of reasons:
The state of Oregon is once again violating a federal order to keep people experiencing mental illness from languishing in jail without treatment in violation of their civil rights, and there’s no solution in sight.
Citing the “futility” of compromise, a federal judge recently ordered a halt to new mediations with local officials over the release of psychiatric patients.
Local officials, meanwhile, are increasingly pushing to hold the state in contempt of court for failing to house or treat people experiencing mental illness — a maneuver to put pressure on top state officials that is expected to spread.
“State judges, we expect, will continue to encourage defense attorneys and prosecutors to hold us in contempt,” Carla Scott, a top litigation attorney for the Oregon Department of Justice, said at a recent court hearing.
She said a Washington County case and others like it represented a drain on state resources, and her team expects similar filings to surface in additional counties and courts, naming top officials at the state.
“Both the director of the Oregon Health Authority and the interim hospital superintendent were hauled into court this morning and only released about 20 minutes before the hearing was about to begin,” Scott added.
Judge takes temperature
The longrunning Oregon State Hospital litigation may be at a turning point. Scott’s comments came in a sparsely attended court hearing that U.S. District Judge Adrienne Nelson called last month to discuss the status of the case. The transcript was posted about a week ago.
Nelson, the third federal judge to oversee the case in the last two decades, took it over in March from emeritus Judge Michael Mosman. Mosman had issued controversial orders intended to reduce crowding at the hospital by setting discharge deadlines for criminal defendants housed there.
The recent contempt cases that Scott described, as well as the attempts at mediation, stem from a conflict of legal authorities, federal versus state. Mosman’s deadlines overrode the authority of state judges, who often house defendants at the Oregon State Hospital until their competency is restored to face trial.
Tha problem is even worse now. In May, prosecutors around the state referred an unprecedented number of criminal defendants to the state hospital for treatment — 126 in all, well above the typical average of about 90. At the current pace of things, the backlog of delays could take months — or years —to dissipate.
“In any month in which there are more (placement) orders than there are discharges, it is impossible to keep pace,” an Oregon State Hospital spokesperson, Amber Shoebridge, said in an email. “Catching up and regaining compliance requires a period where discharges exceed new orders. This has not occurred since March 2024.”
Lawyers say solution is not the courts
While they were representing interests that often are in opposition, the lawyers in the status conference appeared to agree that someone other than the courts would need to fix things.
But without stronger or more effective action by the state and counties, expect more litigation.
Jesse Merrithew, an attorney who is representing one of the plaintiffs in the case, the Multnomah County nonprofit Metropolitan Public Defenders, told Nelson that they had been hopeful that Mosman’s deadlines would give the state time to deliver more services to address the shortfall in beds. However, Merrithew said, it appears “we’re going to need new solutions.”
“I continue to view this court’s ability to address the problem as largely a bandaid until the Legislature does what it needs to do and fully funds a functional behavioral health system,” Merrithew added. “But I expect that we will be back in front of your honor suggesting more mandates in the near future.”
Other lawyers chimed in, some indicating that the responsibility lies with Legislature and the governor’s office to do more.
Keith Garza, an attorney representing several state court judges who’d filed to intervene in the case, said state court judges are feelling “frustration” because they are supposed to assign defendants experiencing mental illness to treatment, but “there’s simply no resources available that are appropriate for a number of these discharged defendants to be sent to.”
In addition to prompting new litigation and contempt motions at the state court level, the issues around the Oregon State Hospital have spread to another federal lawsuit filed by Oregon's hospital systems. The federal 9th Circuit U.S. Court of Appeals recently revived that case on appeal.
Meanwhile, lawyers for additional parties are intervening in the main federal lawsuit, and Marion County has taken its concerns that patients are being released without treatment to the 9th Circuit.
Thorny problem confronted
A court-appointed expert, Debra Pinals, told the judge that the challenge in meeting the state’s needs is not just building facilities with beds, it’s building up the workforce to provide services to people with complex needs who would be using them.
She said that while the state has disbursed funds to help build out the system, it's unclear how the money was spent. The state needs to “do some more drilling down(on) seeing where that money has gone and what more is needed.”
Judge Nelson challenged the participants to be creative in finding solutions given the state’s overburdened system. She said the group would reconvene in November to talk further.
“We don’t know exactly what the Legislature will do,” Nelson said. “And that’s a huge component, because if they make this a priority and fully funded it, maybe no one would be here.”
Lawyers contacted after the status conference echoed the call for action outside the courtroom.
Billy Williams, the former U.S Attorney for Oregon who represents county prosecutors in the federal case, said the solution to overcrowding at the Oregon State Hospital likely involves more bed capacity there to house patients who are not ready for release.
Dave Boyer, a managing attorney with the nonprofit advocacy group Disability Rights Oregon, another plaintiff in the case, however, said money is better spent at the county level providing less-restrictive residential care.
“Until we can get a legislative fix, we're going to continue to have a federal court run part of our mental health care system," he said. “In the end, it's the responsibility of the counties to provide mental health care.”
