Oregon Advocacy Center et al v. Mink et al

Filing 581

OPINION & ORDER: Amicus curiae Marion County's Motion to Intervene Limited in Response to Plaintiff Disability Rights Oregon's Motion for a Rule to Show Cause, ECF 544 , is DENIED.(154 in 6:22-cv-01460-AN, 544 in 3:02-cv-00339-AN, 329 in 3:21-cv-01637-AN). Signed on March 11, 2025 by Judge Adrienne Nelson. Associated Cases: 3:02-cv-00339-AN, 3:21-cv-01637-AN, 6:22-cv-01460-AN (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DISABILITY RIGHTS OREGON,
METROPOLITAN PUBLIC DEFENDER
SERVICES, INC., and A.J. MADISON,

Case No.: 3:02-cv-00339-AN (lead)
3:21-cv-01637-AN
(consolidated)

Plaintiffs,
v.

OPINION AND ORDER

SAJEL HATHI, in her official capacity as head of
the Oregon Health Authority, and SARA
WALKER, in her official capacity as
Superintendent of the Oregon State Hospital,
Defendants.
On January 9, 2025, amicus curiae Marion County (the "County") moved, for the third
time, to intervene in this case pursuant to Federal Rule of Civil Procedure 24(a) and (b). Along with its
motion, the County filed a response in opposition to plaintiff Disability Rights Oregon's ("DRO") motion
for order to show cause and for a remedial order (the "contempt motion"). Plaintiffs DRO and Metropolitan
Public Defender Services, Inc. ("MPD") oppose the County's intervention, and defendants take no position.
For the following reasons, the County's motion to intervene, ECF [544], is DENIED.1

LEGAL STANDARD
A.

Intervention of Right
Federal Rule of Civil Procedure ("FRCP") 24(a)(2) requires a court to permit intervention

when four requirements are met:
"(1) the motion must be timely; (2) the applicant must claim a 'significantly protectable'
interest relating to the property or transaction which is the subject of the action; (3) the
applicant must be so situated that the disposition of the action may as a practical matter
impair or impede its ability to protect that interest; and (4) the applicant's interest must be
inadequately represented by the parties to the action."

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This Opinion and Order does not address plaintiffs' Motion for Imposition of Sanctions, ECF [566].

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Wilderness Soc'y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (en banc). The movant bears
the burden of showing that all four requirements are satisfied. Chamness v. Bowen, 722 F.3d 1110, 1121
(9th Cir. 2013). In making its determination, a court is "guided primarily by practical and equitable
considerations, and the requirements of intervention are broadly interpreted in favor of intervention."
United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004).
B.

Permissive Intervention
FRCP 24(b)(1)(B) grants courts discretion to permit intervention when an applicant makes

a timely motion to intervene and "has a claim or defense that shares with the main action a common question
of law or fact." The movant bears the burden of establishing three requirements: "(1) [the applicant] shares
a common question of law or fact with the main action; (2) its motion is timely; and (3) the court has an
independent basis for jurisdiction over the applicant's claims." Cooper v. Newsom, 13 F.4th 857, 868 (9th
Cir. 2021) (citation omitted). Even if all three requirements are met, "the district court must consider
whether intervention will unduly delay the main action or will unfairly prejudice the existing parties." Id.

BACKGROUND
The factual background of this case is well set out in prior opinions and orders. See, e.g.,
Op. & Order of January 9, 2023, ECF [338]; Op. & Order of May 25, 2023, ECF [395]. As relevant to the
present motion, the County has participated in this matter as amicus curiae since August 29, 2022. Mins.
of Proceedings of August 29, 2022, ECF [269]. In June of 2023, the County sought to intervene in this case
based on the indirect effects of the September 1, 2022, Order to Implement Neutral Expert's
Recommendations (the "September 2022 Order"), ECF [271], on the County's programs and services, and
the anticipated effects of a pending motion to amend the order. First Mot. to Intervene, ECF [402], at 2-3.
That motion was denied at oral argument on June 29, 2023. Minutes of Proceedings, ECF [415]. In denying
the motion, U.S. District Judge Michael Mosman stated on the record:
"I disagree that Marion County has met the standard for either mandatory or
permissive intervention, both on the merits of the rule, and particularly on timeliness.
Certainly some facts have changed, but the sort of litigation posture of the parties and who
is advancing, for example, Marion County's interests and who isn't, that's been a
longstanding situation that hasn't dramatically changed by altered facts on the ground."
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Tr. of Oral Arg. from June 29, 2023, ECF [421], at 19:23-20:5. The County filed a Notice of Appeal on
July 27, 2023, ECF [424], and the Ninth Circuit affirmed the denial on May 10, 2024, ECF [494].
On July 3, 2023, Judge Mosman issued a Second Amended Order to Implement Neutral
Expert's Recommendations (the "Second Amended Order"), ECF [416], which is the operative injunctive
order in this case. On February 9, 2024, Marion County Circuit Court Judge Audrey Broyles ordered the
Oregon State Hospital to provide outpatient restoration services to a criminal defendant. Op. & Order of
March 6, 2024, ECF [475], at 2. The defendant had already received the maximum duration of restoration
services authorized under the Second Amended Order, but he was not restored to competency. Id. On
March 6, 2024, Judge Mosman issued an order (the "March 2024 Order") holding that Judge Broyles' order
violated the Supremacy Clause because it required the Oregon State Hospital to provide the defendant with
restoration services that exceeded the Second Amended Order's maximum duration.
On March 29, 2024, the County filed a second motion to intervene based on allegations
that, as a result of the September 2022 Order, "the County's community restoration caseload tripled while
placement options dwindled." Second Mot. to Intervene, ECF [478], at 2. The County argued that the
March 2024 Order "further increase[d] the financial and administrative burdens on the County" because
"[b]y prohibiting Oregon State Hospital . . . outpatient services as an alternative to community restoration,
the County will be presented with even more individuals requiring services." Id. This, the County alleged,
"further burden[ed] the County's already strained resources" because it created "an increase in the number
of individuals remaining in jail," "an increased number of individuals charged with violent crimes simply
leaving services without receiving stabilizing treatment, and "obvious fiscal consequences to the County
from the increase in services that is caused by turning individuals away from outpatient services." Id. at 3.
This Court denied the County's second motion to intervene on April 4, 2024. Op. & Order of April 4, 2024,
ECF [485]. In denying the motion, this Court found that the County's motion was not timely because it was
"brought twenty-one years after judgment was entered, and four years into the enforcement stage of the
proceedings, would result in substantial prejudice to the parties, and suffer[ed] from, at best, a one-and-a-

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half-year delay with no justifiable reason for the delay." Id. at 7. The County filed a notice of appeal on
April 5, 2024, ECF [486], and the appeal is currently pending before the Ninth Circuit.
On January 7, 2025, DRO filed the contempt motion. Pl. DRO Mot. for Order to Show
Cause & for Remedial Order ("DRO Mot."), ECF [540]. DRO's contempt motion asks the Court to impose
incremental monetary civil contempt sanctions and to modify admissions to and discharges from the state
hospital in various ways. A two-day hearing on the contempt motion is scheduled for March 12 and 13,
2025. Mins. of Proceedings of January 24, 2025, ECF [560].
The County now moves, for the third time, to intervene in this case, alleging that DRO's
contempt motion proposes "major legislative policy changes" that "inherently implicate[]" the County's
rights. Third Mot. to Intervene ("3d Mot. to Intervene"), ECF [544], at 4. The County argues that the
proposed policy changes, especially the proposed limitations on certain referrals to the state hospital, would
"play Russian roulette with patient safety and public safety"; deprive patients of necessary hospital-level
care; and would "create more work for [the] County" because the County would be required to "provid[e]
resources and bear[] the risks of harms related to the confinement of individuals on community restoration
on the front end while also needing to provide more victim services as crimes increase on the back end."
Id. at 5-6. The County notes that it "lacks adequate staff and funds to provide the resources needed to
ensure that a new avalanche of individuals on community restoration are given appropriate placement and
medications." Id. at 6.

DISCUSSION
The County reiterates many arguments already made in its prior motions to intervene.
However, the Court's denial of the first motion to intervene was affirmed by the Ninth Circuit, and the
Court's denial of the second motion is currently pending on appeal before the Ninth Circuit. To the extent
the County is asking this Court to reconsider the decision to deny the County's second motion to intervene,
the Court lacks jurisdiction to do so. See City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper,
254 F.3d 882, 885-86 (9th Cir. 2001) ("[J]urisdiction is transferred from a district court to a court of appeals
upon the filing of a notice of appeal."). Accordingly, the Court considers the County's third motion to
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intervene only insomuch as the County's arguments relate to DRO's contempt motion.

A.

Timeliness
For both permissive intervention and intervention of right, a threshold requirement is that

the motion is timely. Timeliness is assessed based on three factors: "(1) the stage of the proceeding at
which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length
of the delay." United States ex rel. McGough v. Covington Techs. Co., 967 F.2d 1391, 1394 (9th Cir. 1992)
(citation omitted).
As an initial matter, the scope of intervention that the County seeks is not clear. The
County captions its motion as a "limited" one and states that it seeks only to intervene "for the limited
purpose of responding to the recently filed [contempt motion]." 3d Mot. to Intervene 2 (emphasis in
original). However, as plaintiffs point out, the County (1) could have filed its response as an amicus, and
(2) states in its reply in support of its motion that this case "would benefit from Marion County's
participation as a party" and that "only Marion County can be counted on to fully defend the Court's
monetary fines when the State appeals." Marion County Reply Supp. 3d Mot. to Intervene ("Marion County
Reply"), ECF [562], at 2. Regardless, for the reasons set forth below, the County's motion fails.
1.

Stage of Proceedings
The County's present motion to intervene was filed more than twenty-two years after the

commencement of this case. Final judgment was entered in this case on May 15, 2002; the Ninth Circuit
affirmed that judgment on April 1, 2003; and this Court has retained jurisdiction solely to enforce the
permanent injunction. Generally, "postjudgment intervention is [] disfavored because it creates 'delay and
prejudice to existing parties.'" Calvert v. Huckins, 109 F.3d 636, 638 (9th Cir. 1997) (quoting United States
v. Yonkers Bd. of Educ., 801 F.2d 593, 596 (2d Cir. 1986)). As this Court has previously acknowledged,
and to be sure, the unique circumstances of this case may impact that general rule; however, litigation
regarding enforcement of the injunction has been ongoing since 2019. At the very least, the County is
seeking to intervene more than five years after the current stage of proceedings began. This factor weighs
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against a finding that the motion is timely.
The County argues that its motion is timely under the totality of the circumstances because
DRO's contempt motion created a change in circumstances and ushered the litigation into "a new stage"
such that intervention is appropriate. Marion County Reply 5. The County argues that DRO's contempt
motion "is the first motion in this case seeking to impose per diem monetary fines against [d]efendants with
increasing amounts the longer contempt continues" and that imposing per diem monetary fines would
"impact[] the rights and responsibilities of Marion County." Id. at 4. However, as plaintiffs point out,
plaintiffs both filed motions for contempt in 2019, and at least MPD's 2019 contempt motion requested
"'necessary remedial sanctions to punish the defendants and compensate plaintiffs and those effected by
[defendants'] contempt for their injuries.'" DRO & MPD Mem. Suppl. Mot. for Sanctions ("Pls. Suppl.
Mem."), ECF [566-1], at 7 (quoting Pl. MPD Mot. for Order to Show Cause for Finding of Contempt & for
Disc., ECF [85], at 1). Because the imposition of fines (regardless of whether such fines were actually
issued) has been contemplated since, at the least, 2019, this cannot be said to create the kind of "changed
circumstances" that would make the County's intervention timely.
Furthermore, to the extent the County argues that a different timeliness analysis should
apply because its motion is a limited one, this argument fails. While it is true that "[a] motion to intervene
seeking only to participate in the appeal is timely if filed within the time allowed for filing an appeal[,]"
United States v. Washington, 86 F.3d 1499, 1505 (9th Cir. 1996) (citing McGough, 967 F.2d at 1395); see
Alaska v. Suburban Propane Gas Corp., 123 F.3d 1317, 1320 (9th Cir. 1997) (citing United Airlines, Inc.
v. McDonald, 432 U.S. 385, 395-96 (1977)), here, the County's purported limited purpose is not to appeal
a recently issued order, but rather to respond to a recently filed motion. The standard timeliness test applies.
2.

Prejudice to Other Parties
The County argues that intervention is not likely to result in prejudice to the other parties

because (1) defendants have not opposed the motion, and (2) plaintiffs' "claims of prejudice do not hold up
to scrutiny based on established precedent." Marion County Reply 6. Regarding plaintiffs, the County
specifically argues that no prejudice will result because "Marion County will not use [] intervention to
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relitigate matters which have previously been litigated, to raise any claims unrelated to the current stage of
the case, or to assert any new claims against other parties." Id. Thus, the County's intervention "will be
forward-looking and focused on advocating for monetary fines[.]" Id. In opposition, plaintiffs argue that
intervention would result in substantial prejudice because it would protract and multiply the proceedings in
complexity and would facilitate further appeal. Plaintiffs argue this is particularly true where the County
has, in the past, obfuscated its true intentions in seeking intervention, and may be doing so again now.
This factor again weighs against finding that the motion is timely. As noted, the County's
argument that it seeks only to intervene for the limited purpose of responding to DRO's contempt motion
is suspect where, as here, the County has been free to submit that response as an amicus. The County's
indication that it intends to zealously advocate for monetary sanctions on appeal indicates that the County
seeks to intervene beyond its purported limited purpose. But the parties in this case have undertaken
substantial negotiations that have resulted in a "complex and delicately balanced" enforcement posture. Op.
& Order of April 4, 2024, ECF [485]. That enforcement posture continues to be negotiated, and allowing
the County to intervene at this point would cause substantial prejudice by disrupting the "delicate balance
the parties have achieved." United States v. Oregon, 913 F.2d 576, 588-89 (9th Cir. 1990).
3.

Reason for and Length of Delay
The length of delay is "measured from the date the proposed intervenor should have been

aware that its interests would no longer be protected adequately by the parties[.]" Washington, 86 F.3d at
1503. The County appears to argue that there was minimal to no delay because it filed its motion only two
days after DRO filed its contempt motion, and that it only learned its interests would no longer be
adequately protected by the parties upon DRO's filing of the contempt motion because that motion "seeks
major legislative policy changes that are outside the responsibilities of the judicial branch and endanger all
Oregon residents." 3d Mot. to Intervene 6. The County argues that it thus "stands in a unique position"
because "[a]ll current parties agree on trying to shift the burdens of restoration onto counties." Id. at 6. In
opposition, plaintiffs argue that the contempt motion does not constitute a change in circumstances and that
the County has previously admitted—and this Court and the Ninth Circuit have previously found—that
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"neither party has protected [the County's] interest since at least 2022[.]" Pls. Suppl. Mem. 4.
The Court agrees with plaintiffs. Regardless of the specific remedies proposed within
DRO's contempt motion, the motion itself is an extension of enforcement proceedings that, as noted, began
in 2019. Furthermore, the County has argued since at least 2022 that its interests have not been adequately
protected by the parties. The County provides no explanation for its delay in seeking to intervene other
than the circular argument that there was no delay because the County filed its motion only two days after
DRO's contempt motion.
In sum, the Court finds that the County's third motion to intervene (1) is brought more than
twenty-two years after judgment was entered, and more than five years into the enforcement stage of the
proceedings; (2) would result in substantial prejudice to the parties; and (3) suffers from a multi-year delay
with no justifiable reason for that delay. Therefore, the County's motion is not timely.
B.

Remaining Factors
Because the County's motion is not timely, the Court does not consider the remaining

elements for permissive intervention or intervention by right. See Oregon, 913 F.2d at 589 ("Because we
affirm the district court's decision that the [proposed intervenor]'s motion was not timely, we need not reach
any of the remaining elements of the test set forth in Rule 24."); id. ("A finding of untimeliness defeats this
[permissive intervention] motion as well.").

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CONCLUSION
For the reasons stated above, amicus curiae Marion County's Motion to Intervene Limited
in Response to Plaintiff Disability Rights Oregon's Motion for a Rule to Show Cause, ECF [544], is
DENIED.

IT IS SO ORDERED.

DATED this 11th day of March, 2025.
______________________
Adrienne Nelson
United States District Judge

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