[00:00:01] Speaker 02:
Can both counsel hear me?

[00:00:04] Speaker 02:
Ms.

[00:00:04] Speaker 02:
Vandiver?

[00:00:06] Speaker 00:
Yes, Your Honor.

[00:00:07] Speaker 02:
Okay.

[00:00:07] Speaker 02:
And do we have Mr. Casper?

[00:00:11] Speaker 02:
Yes, Your Honor.

[00:00:12] Speaker 02:
I'm starting my video now.

[00:00:14] Speaker 02:
Okay.

[00:00:14] Speaker 02:
I was trying to.

[00:00:15] Speaker ?:
There we go.

[00:00:17] Speaker ?:
Great.

[00:00:18] Speaker ?:
Okay.

[00:00:20] Speaker 02:
Mr. Casper, you may proceed.

[00:00:23] Speaker 02:
Thank you.

[00:00:24] Speaker 02:
And may it please the court, counsel.

[00:00:27] Speaker 02:
My name is Michael Casper.

[00:00:28] Speaker 02:
I'm here on behalf of the State of Oregon.

[00:00:31] Speaker 02:
And if I could, I'd like to reserve five minutes of my time for rebuttal.

[00:00:35] Speaker 02:
The issue in this case is the extent to which a delay in the appointment of counsel entitles an indigent defendant who's in pretrial custody to habeas corpus relief on the ground that the custody is unlawful.

[00:00:51] Speaker 02:
We do not dispute the possibility that a delay in the appointment of counsel could give rise to a viable habeas claim,

[00:00:59] Speaker ?:
in certain limited circumstances, but whether it does depends on the specific facts, and it only occurs in very narrow circumstances that I'll talk about.

[00:01:08] Speaker ?:
The preliminary injunction that the district court ordered in this case extends far beyond those circumstances and far beyond anything that habeas corpus would allow.

[00:01:20] Speaker 02:
The district court's preliminary injunction

[00:01:39] Speaker 02:
Well, there's two parts to that.

[00:01:42] Speaker ?:
First of all, I don't know that we could say a particular number of days.

[00:01:46] Speaker 02:
As we've said, in terms of the right to counsel, we think that under Rothgar, it depends on counsel has to be provided within a reasonable time to prepare for trial and to prepare for any critical stage before trial.

[00:02:00] Speaker 01:
Oh, right.

[00:02:01] Speaker 01:
So answer the question.

[00:02:03] Speaker 01:
What is that time?

[00:02:06] Speaker 02:
Well, it depends on the facts of it.

[00:02:13] Speaker 02:
case and the evidence, right?

[00:02:16] Speaker 02:
But beyond the fact that the question of when a constitutional violation occurs, what's also very important here is that this is a habeas corpus case.

[00:02:26] Speaker 02:
So the question is not simply whether or not a constitutional violation or the right to counsel has been violated.

[00:02:34] Speaker 02:
It's whether that this person's continued confinement is now illegal.

[00:02:40] Speaker 02:
Those are two very different questions.

[00:02:44] Speaker 02:
The district court's injunction in this case orders the release of every indigent defendant who's in pretrial custody who's been waiting for the appointment of counsel for seven days.

[00:02:54] Speaker 02:
The bail hearing is a critical stage, you would agree?

[00:02:59] Speaker 02:
Whether the bail hearing is a critical stage or not is an issue that this court has not yet decided.

[00:03:05] Speaker 02:
I think our position on whether a bail hearing is a critical stage probably depends

[00:03:23] Speaker 01:
have not had an opportunity to consult with an attorney, and that would prejudice them.

[00:03:29] Speaker 01:
Don't you think that's a critical stage?

[00:03:31] Speaker 02:
I think it could be, Your Honor, and I guess I don't – I think we would have a hard time convincing this Court that a bail hearing is never a critical stage.

[00:03:41] Speaker ?:
But I guess the first point, though, is even assuming that a bail hearing is a critical stage.

[00:03:46] Speaker ?:
That doesn't mean that after seven days everybody's entitled to be released because

[00:03:53] Speaker 02:
And under Oregon law, almost everybody has an attorney at their original release hearing.

[00:04:30] Speaker 02:
representation, but our point is it's not necessarily meaningful representation, but it's not un-meaningful representation in every case.

[00:04:40] Speaker 02:
So, first of all, I think that – I mean, to the extent that the question is whether this is a critical stage where they're getting the due process is being afforded, there are a whole lot of statutory conditions that limit the ability of

[00:04:59] Speaker 02:
magistrate to set bail and set conditions and they have to do under state law, they have to do the conditions there.

[00:05:07] Speaker 02:
Can council, assuming that the bail hearing is a critical stage and that the lack of appointment of council violates the Sixth Amendment, what is, in your view, the remedy to that?

[00:05:22] Speaker 02:
If there's a violation of the right to counsel in a hearing where

[00:05:29] Speaker 02:
the custody determination is being made, I think that that could give rise to a habeas corpus claim, because it's difficult for a defendant in that position to be able to raise it in state court.

[00:05:48] Speaker 02:
But the defendant can raise it in state court in criminal proceeding by simply saying, I don't have counsel, and they can raise that objection.

[00:05:56] Speaker ?:
But there is a line of cases that we can see

[00:05:59] Speaker 02:
that, you know, Hernandez and Arvalo and Page, where if you have a discrete procedure where the right to counsel is being violated, a discrete procedure that determines custody and the right to counsel being violated in that procedure, then that may give rise to a habeas claim.

[00:06:29] Speaker 02:
one where, uh, where the violation of the right to counsel pretrial had led to the immediate release of a defendant.

[00:06:38] Speaker ?:
Sorry, it doesn't mean that, yeah, the remedy is not the immediate release.

[00:06:42] Speaker 02:
I think, like, so, for example, in Hernandez, right, this is a case where

[00:06:58] Speaker 02:
of any such case.

[00:06:59] Speaker 02:
And so this is the first case that's ever held that?

[00:07:02] Speaker 02:
This is the first case that we're aware of that actually granted release.

[00:07:07] Speaker 02:
Okay, so for release is not the remedy, what is the remedy?

[00:07:11] Speaker ?:
I think the appropriate remedy if there is a violation in a discrete hearing in term of custody is to redo that hearing with proper procedures.

[00:07:18] Speaker 02:
And that's what happened in Hernandez, right?

[00:07:20] Speaker 02:
So if you have people setting a bail amount

[00:07:33] Speaker 02:
So the habeas court could order the state of Oregon to give the defendant another bail hearing?

[00:07:40] Speaker 02:
They could, yes.

[00:07:42] Speaker 02:
So you think that's a proper remedy, not release?

[00:07:45] Speaker 02:
I think that would be a proper remedy.

[00:07:47] Speaker 02:
But again, I really do want to stress that that's only a proper remedy in cases where there has been a violation of the right to counsel.

[00:07:54] Speaker 02:
And I don't think that under Oregon's current procedures that there is necessarily a violation because there is counsel available that

[00:08:03] Speaker 02:
There have been cases where arraignment counsel have challenged successfully the lack of appointed counsel.

[00:08:10] Speaker ?:
And not only that, there's a whole lot of other procedures.

[00:08:15] Speaker ?:
Yeah.

[00:08:16] Speaker 02:
Was your reading of the district court's opinion that the right to counsel, I understand the right to counsel attaches at the arraignment, but that doesn't mean that counsel has to be appointed at arraignment.

[00:08:28] Speaker 02:
Is that your reading of what the district court was saying?

[00:08:30] Speaker 02:
No, I think their district court agreed with me

[00:08:34] Speaker 02:
The petitioners did argue below that at attachment, there must be appointment.

[00:08:41] Speaker 02:
And the district court rejected that and did follow us on Rothgarry, which says that the appointment has to happen within a reasonable time to allow for

[00:09:16] Speaker 02:
one would have to conclude, I mean, this is an injunction that requires the state to release everybody who's been without counsel, appointed counsel, for several consecutive days.

[00:09:27] Speaker 02:
That includes, by the way, not just people who are waiting for appointed, the initial appointment of counsel, but a lot of people who are waiting for the appointment of substitute counsel.

[00:09:36] Speaker 02:
And that's not an insignificant number.

[00:09:37] Speaker 02:
I mean, that, at least at the time of the injunction was issued, that was about half the cases or about

[00:09:45] Speaker ?:
a significant number of people who are waiting for substitute counsel.

[00:09:49] Speaker ?:
Those people may have already had a contested pretrial detention hearing where they were represented by counsel, and so there's really no basis to say for that, certainly that subclass, that there's been a constitutional violation at all, much less one that necessarily makes the continued pass to be unlawful.

[00:10:25] Speaker 02:
Originally again, we think that what happens at arraignment is enough to satisfy the right to counsel It's not a constitutional violation if there's a you know So I so I don't I guess the question of whether or not habeas relief can be to be can be granted to future class members Are you aware of cases that do that?

[00:10:45] Speaker 02:
Is there is that an issue?

[00:10:48] Speaker 02:
I so I

[00:11:00] Speaker 02:
I think there are a few cases, Hernandez is one of them, and there's a Rodriguez case, that where it was certainly assumed, it's, let me say this, that it's certainly standard operating procedure to have future members in a class action.

[00:11:15] Speaker 02:
But in a class habeas action, of course, habeas relief can only be granted if the person is currently in, illegally in custody.

[00:11:25] Speaker 02:
So I, I mean, it's, I'm not,

[00:11:29] Speaker 02:
I know that in Hernandez, for example, it wasn't released what they granted.

[00:11:35] Speaker 02:
I think they just grant procedures for immigration detention.

[00:11:41] Speaker 02:
Right.

[00:11:42] Speaker 02:
And so I'm not aware of anybody who's actually, of a case where habeas relief itself, where release from custody has been granted for future people who have not yet committed crimes.

[00:11:57] Speaker 02:
But I would say that,

[00:12:00] Speaker 02:
whether there's a jurisdictional problem with that or not, the fact that the district court has imposed this rule that applies from here on out to anybody who ever becomes a member of this class and requires it to release after seven days, I mean, that does obviously impose a rule of law, essentially, in the state of Oregon, that it's unlawful, it's unconstitutional to hold anybody

[00:12:26] Speaker 02:
For more than seven days if they if they have not yet been appointed counsel So I mean the only way that that the court has authority to do something like that is if that that is actually true I'm sorry to jump in.

[00:12:40] Speaker 02:
I just want to clarify something.

[00:12:41] Speaker 02:
We've talked a lot about during your argument about being released from custody Isn't it more accurate as if they've been released from?

[00:12:49] Speaker ?:
Jail or prison they're still in custody

[00:12:57] Speaker 02:
I think that's fair, Your Honor, yes.

[00:12:59] Speaker 02:
But we're really not talking about a release from custody in this case.

[00:13:01] Speaker 02:
We're talking about a change of the conditions of custody.

[00:13:04] Speaker 02:
Correct.

[00:13:06] Speaker 02:
Well, I guess I'm not sure.

[00:13:09] Speaker 02:
I mean, we're talking about a release for physical custody, which it is certainly true that for purposes of habeas relief, restrictions on one's liberty do count as custody.

[00:13:25] Speaker 02:
So I mean, I guess it's not

[00:13:28] Speaker 02:
Um, just to be clear, this is not a release from custody case.

[00:13:33] Speaker 02:
It's a release from, it's the changing of the conditions of custody.

[00:13:36] Speaker 02:
That would be more accurate.

[00:13:38] Speaker 02:
I think that that's probably another way to say it, yeah.

[00:13:43] Speaker 02:
It's a more accurate way, isn't it, Council?

[00:13:44] Speaker 02:
Yeah, okay, yes, it's a more accurate way to say it.

[00:14:12] Speaker 02:
So there are a lot of factors that came into play, but I would think that it's probably generally agreed that that's the primary factor, yes.

[00:14:19] Speaker 02:
Couldn't one of the least restrictive remedy have been to rescind that rule?

[00:14:32] Speaker 02:
Could the habeas court?

[00:14:58] Speaker 02:
did your courts have her products uh... remedial authority in his case that uh... maybe something that they could do uh... if

[00:15:54] Speaker 02:
and it's all in flux because part of what's happened here in response is that the legislature has just absolutely revamped the process for determining the number of cases and who gets to decide that, and includes people who aren't parties to this case.

[00:16:12] Speaker 02:
So I guess I'd be a little... One response that trial courts have had in the state is to just simply order, mandate the defense attorneys to take

[00:16:33] Speaker 02:
Well, you know, I think the most obvious, least extreme remedy is, first of all, as I said, I think that in order to even get off the ground in a habeas case, there's got to be a nexus.

[00:16:46] Speaker ?:
There's got to be some kind of process where their custody was decided in a manner that violated their constitutional rights.

[00:16:54] Speaker ?:
Their custody is.

[00:16:55] Speaker 02:
It can't just be like a freestanding right to counsel claim, because the right to counsel generally is there to protect

[00:17:02] Speaker 02:
of integrity of the trial.

[00:17:04] Speaker 02:
And, you know, like the speedy trial right also, you know, you can't, this court's repeatedly said, you can't bring a speedy trial claim in habeas, even though it's true that you have the defendant whose right to speedy trials being violated, you know, has harm because they have to wait.

[00:17:23] Speaker 02:
Counsel, you're down to three minutes.

[00:17:24] Speaker 02:
You want to reserve the rest for rebuttal?

[00:17:27] Speaker 02:
I better do that, Your Honor.

[00:17:28] Speaker 02:
Thank you very much.

[00:17:36] Speaker 00:
Good morning, your honors, and may it please the court.

[00:17:39] Speaker 00:
I'm Julie Vandemer for the Federal Public Defender's Office on behalf of Walter Betshark and the petitioners.

[00:17:47] Speaker 00:
I'd like to address Judge Bumate's question about whether or not a court has ever ordered this kind of relief before.

[00:17:54] Speaker 00:
And what we have in Oregon is a systemic

[00:18:06] Speaker 00:
that frankly are unprecedented.

[00:18:09] Speaker 00:
And they are not really disputed by the actors within the system.

[00:18:15] Speaker 00:
As we cited in our brief, the Chief Justice of the Oregon Supreme Court has acknowledged in response to Judge McShane's order that they are not meeting their mandate to provide counsel under the Constitution.

[00:18:34] Speaker 00:
I'm not aware of one, no, although I think Mink is a helpful parallel.

[00:18:41] Speaker ?:
In that case, this court ordered people released from the jail and transferred to the state hospital within seven days.

[00:18:51] Speaker 00:
And the other point that I think is important is that no one will be released

[00:19:06] Speaker 00:
And the Judge Bumate, I think you asked whether or not Judge McShane's ruling created a new law in Oregon.

[00:19:18] Speaker ?:
And in fact, the law in Oregon is already that counsel is required at arraignment and appointment of counsel is to continue through the end of until sentencing.

[00:19:32] Speaker ?:
And so this order, it would be

[00:19:38] Speaker 00:
followed their own laws.

[00:19:40] Speaker 00:
And with respect to the question of whether Judge McShane could have done a more or a less restrictive remedy, he thinks that that point is only relevant that I'm aware in a prison conditions case under 18 USC 3626 and not in a habeas case.

[00:20:03] Speaker 00:
So he wasn't

[00:20:10] Speaker 02:
And whether or not whether he was required, is there any other less extreme remedies?

[00:20:27] Speaker 00:
be taking is really inviting more of a younger problem than what we have now.

[00:20:34] Speaker 00:
This court talked about in red that a bright line, when the court just lays down a bright line distinction, that that doesn't implicate younger in the way that it would if the federal court is telling state public defenders how many cases they need to accept on their docket.

[00:20:53] Speaker ?:
What he's

[00:20:57] Speaker 00:
This is an outer boundary of what is.

[00:21:22] Speaker 00:
My understanding of the crisis is that it was kicked off I'll say by a change in the contracting system.

[00:21:38] Speaker 00:
And so that may solve the problem.

[00:21:42] Speaker ?:
Our position all along has been that we don't report to tell the state how to solve this problem.

[00:21:50] Speaker 00:
What we are doing and we are asking, what we ask the federal court to do and what we're asking you to do is to say while you are

[00:22:00] Speaker 00:
figuring out how you're going to provide counsel for every indigent defendant, you cannot violate the rights of poor people.

[00:22:10] Speaker 02:
I mean, it does make sense.

[00:22:11] Speaker 02:
I mean, obviously, I get the concern of defenders having too many clients, but then it seems like the result has been that some clients, some defenses get no clients.

[00:22:21] Speaker 02:
I mean, get no different representations.

[00:22:22] Speaker 02:
It seems like you're fixing one problem and creating a worse one.

[00:22:26] Speaker 00:
And it's not just some, it is many.

[00:22:30] Speaker 00:
It is, at the time of the preliminary injunction hearing, there was 138 or 139 people in jail in the state of Oregon without counsel.

[00:22:40] Speaker 00:
And the numbers of unrepresented persons who are in restrictive conditions in the community is well into the 2000s.

[00:22:50] Speaker 00:
I'd like to address why the district court

[00:22:58] Speaker 00:
And it's not fair to say that he picked it out of thin air.

[00:23:03] Speaker 00:
And we had a hearing after he entered the preliminary injunction where he in fact said, you might be in the Ninth Circuit and they might ask you why I picked seven days and let me explain.

[00:23:19] Speaker 00:
Yeah, so he found that by seven days the constitutional violation is likely to have occurred because under the state statute they would have been entitled to a bail hearing.

[00:23:34] Speaker 00:
A person that is in jail would have been entitled to a bail hearing and in a felony case.

[00:23:40] Speaker 00:
Their case also would have gone to the grand jury in Oregon by statute and under Oregon

[00:23:49] Speaker 00:
court precedent, a defendant has a right to testify at their grand jury proceedings.

[00:23:57] Speaker 02:
Under that theory, though, then we would have to hold that that's a critical stage, right?

[00:24:03] Speaker 02:
And I don't think any court has said that.

[00:24:06] Speaker 00:
Well, the difference is that people who don't have counsel, it is a critical stage

[00:24:15] Speaker 00:
But because they have that right

[00:24:35] Speaker 00:
time okay that's a little different that makes sense and the court also considered when he was deciding to make the preliminary injunction of seven days he also looked at pragmatic concerns he said at the seventh day this person is going to be in front of a court who can set conditions and release them and

[00:25:01] Speaker 00:
It's fair and we cited precedent in our brief that it's okay to look at pragmatic concerns.

[00:25:07] Speaker 00:
Courts shouldn't do that when they're setting preliminary injunctions to look at what's workable.

[00:25:13] Speaker 00:
And we know that this preliminary injunction

[00:25:18] Speaker 00:
did work or could work because for two months there was a temporary restraining order in effect in Washington County and there's a declaration in the record from Kevin Barton who is the district attorney of Washington County and he says during the time that the temporary restraining order was in fact

[00:25:41] Speaker 00:
population in the Washington County jail went down and has remained low.

[00:25:46] Speaker 02:
And in fact, when we had the preliminary injunction hearing... Sorry, can I ask you, what's your position on the exclusion of those accused of murder and got aggravated murder from this preliminary injunction?

[00:26:02] Speaker 00:
Well, I think that the district court reasonably

[00:26:10] Speaker 00:
make a moderate preliminary injunction that those what's the basis of that are they not entitled to the same constitutional right they absolutely are entitled to the same constitutional right but the district court said this is not a perfect injunction and meaning I we I can't please everyone I can't fix this entire problem

[00:26:43] Speaker 00:
43 of the Oregon State Constitution makes those crimes not releasable.

[00:26:50] Speaker 00:
And so that he was concerned about statutory release conditions.

[00:26:57] Speaker 00:
And so in deference to that provision of the state constitution, he said he made them not releasable.

[00:27:04] Speaker 00:
And, Your Honor, there perhaps is an element of moderating the interest

[00:27:18] Speaker 00:
said that in his opinion, and he said, you know, the state has raised public safety as an issue, and we can't suspend the Constitution because of those concerns.

[00:27:33] Speaker 00:
However, that provision that you're talking about is a compromise.

[00:27:38] Speaker 02:
And counsel, it seems to me that the standard review in this case, because we are reviewing a preliminary

[00:27:51] Speaker 02:
abuse of discretion, right?

[00:27:53] Speaker 00:
Yes.

[00:27:54] Speaker 02:
And it seems to me when we look back at the cases over the years that, as you said, if we're reviewing for an abuse of discretion, we're not reviewing for perfection.

[00:28:03] Speaker ?:
We're reviewing whether, under the circumstances of this very unique case, do we think that the district court was just, frankly, way out of bounds on this one.

[00:28:11] Speaker 02:
And I think that is the general test.

[00:28:29] Speaker 00:
in a preliminary injunction hearing about what is happening in the state, and he entered this injunction to appropriately deal with the crisis to set.

[00:28:44] Speaker 00:
McLaughlin talks about setting an outer bound on the Constitution, and I think that that's a really fair way to think about what Judge McShane did.

[00:28:58] Speaker 02:
that someone cannot no continue please someone cannot be in jail for more than seven days without a lawyer that it violates the constitution let me ask you this i know that there have been some efforts to fix this problem um i assume that the state could come forth if the problem was fixed and say look you can dissolve the injunction now because xyz123 has there been

[00:29:28] Speaker 02:
Has there been anything that has been proposed by the state to remedy this situation?

[00:29:35] Speaker 00:
Yes.

[00:29:35] Speaker 00:
The state had passed a law in July, or I think it came into effect in July, to kind of revamp the public defense system.

[00:29:48] Speaker 00:
And there is a declaration in the record from Eric Dietrich, who is a general counsel

[00:29:58] Speaker 00:
the efforts that they are undertaking.

[00:30:00] Speaker 00:
However, they are quite long-term and they're working on a five-year plan to build capacity in the system.

[00:30:09] Speaker 00:
So I think I certainly agree that Oregon is concerned about this, but I think it is necessary for the court and the courts

[00:30:23] Speaker 00:
on what is permissible during a time where Oregon cannot meet its constitutional

[00:30:56] Speaker 00:
I don't know, Your Honor.

[00:30:57] Speaker 00:
I'm sorry, I'm not aware of that.

[00:31:02] Speaker 00:
I think it is affecting two – the evidence in the record shows that it's affecting two-thirds of the counties in Oregon, and they aren't exclusively rural areas.

[00:31:15] Speaker ?:
Some of the areas with the highest numbers of unrepresented individuals are more urban areas.

[00:31:23] Speaker ?:
I would like to spend some time talking about

[00:31:34] Speaker 00:
review on the preliminary injunction is an abuse of discretion.

[00:31:37] Speaker 00:
I think that's absolutely right.

[00:31:39] Speaker 00:
But when we look at what Judge McShane did with respect to the restrictive conditions petitioners, his, the basis for denying the preliminary injunction and his basis for finding that younger abstention applied were grounded in an error of law that this court reviews

[00:32:08] Speaker 00:
on whether or not they were in jail.

[00:32:12] Speaker 00:
And we urge the court to reverse that that error in law because there is no difference.

[00:32:21] Speaker 00:
You are entitled to counsel and we presented evidence from some practitioners talking about the way specifically that

[00:32:37] Speaker 00:
by not having counsel from the outset of the criminal case and also because of the evidence.

[00:32:45] Speaker 00:
Oh, I'm sorry.

[00:32:46] Speaker 02:
I hate to take you back to the other arm, but I had one other question.

[00:32:48] Speaker 02:
Okay.

[00:32:49] Speaker 02:
Your friend on the other side suggested that the remedy, so assuming that the bail hearing is the critical stage and is entitled to counsel at that point, your friend on the other side suggested that the remedy for the violation of that is just a redo of the bail hearing.

[00:33:05] Speaker 02:
Do you have a position on that?

[00:33:06] Speaker 02:
Why couldn't the district court hear Judge McShane just order a redo of a bail hearing instead of...

[00:33:17] Speaker 00:
If that were the case, then the person has to endure all of the irreparable harm of being unrepresented, including probably the deprivation of liberty, which cannot be repaid, and that only once the error has been corrected in their given counsel do they get the new bail hearing.

[00:33:47] Speaker 02:
with counsel?

[00:33:52] Speaker 00:
I think the problem is that we don't know whether counsel is going to appear and so if that's the case

[00:34:16] Speaker 00:
The reason why the district court structured the injunction in the way that he did and which this court reviews for abuse of discretion is to incentivize the state to provide counsel.

[00:34:28] Speaker 00:
And what happens when someone may be released is that the state courts start making decisions about which cases need counsel appointed.

[00:34:41] Speaker 02:
Yeah, I agree with that.

[00:34:43] Speaker 02:
It was a pretty good incentive.

[00:34:52] Speaker 00:
I disagree that it's extreme.

[00:34:55] Speaker 00:
The court gives seven days for the state court to find counsel, which is quite a long time to be in jail with no lawyer.

[00:35:04] Speaker 00:
I agree.

[00:35:05] Speaker 02:
I guess my point being is could the district, is there anything wrong with the district court ordering a redo of the bail hearing with counsel present?

[00:35:15] Speaker 00:
That's certainly one way that the district court could have structured its injunction, but that's not what it did and the district court

[00:35:25] Speaker 00:
parties and settled on this this particular remedy, which this court reviews for abuse of discretion.

[00:35:33] Speaker ?:
I do want to talk about the future.

[00:35:35] Speaker 00:
I want to make sure I answered the court's question regarding future custody and

[00:35:42] Speaker 00:
The way that the class is framed is that a person is not in the class or the injunction does not apply to them until they are in jail.

[00:35:55] Speaker 00:
So they necessarily are in custody by the time the injunction applies to them or they are in the class.

[00:36:15] Speaker 02:
is entitled to habeas relief?

[00:36:19] Speaker 00:
Well the district court entered a preliminary injunction and the district court when they're sitting in habeas have broad equitable discretion to craft remedies and it's very similar to what the court

[00:36:43] Speaker 00:
as far as if you want to construe it as future language is identical, those who are or who will be.

[00:36:51] Speaker 00:
And the state suggested in one of their briefs that a future class member would be able to enforce the preliminary injunction.

[00:37:01] Speaker 00:
I disagree because they wouldn't be in the class at that point.

[00:37:08] Speaker 02:
I have one last question.

[00:37:10] Speaker 02:
Sure.

[00:37:10] Speaker 02:
Why would, so again, assuming that bailing is a critical stage, why would the lack of counsel make custody illegal, which is what's required under the habeas statute?

[00:37:24] Speaker 00:
The court must presume that they are going, that a person is prejudiced by the absence of counsel.

[00:37:30] Speaker 02:
And so that's- That's never just prejudice.

[00:37:40] Speaker 02:
legal, which is what behavior statutes intended for.

[00:37:45] Speaker 00:
Yeah, so if I think Dominguez versus Kernan is a helpful case on this point because it distinguishes between 2241 and 2254 and it says in a 2241 that nexus requirement

[00:38:06] Speaker ?:
The court is troubled by that particular issue.

[00:38:10] Speaker 00:
We did cite or invoke alternative bases for relief of 1331 and 1343 in our amended petitions, which the court certainly could use to enter this kind of injunction.

[00:38:25] Speaker 02:
Great.

[00:38:26] Speaker 02:
Over time, if you want to wrap up the argument, unless my colleagues have any questions.

[00:38:37] Speaker 00:
injunction for the jail class and reverse the district court's finding that the restrictive conditions petitioners would not succeed on the merits of their constitutional claims and remand for consideration of a preliminary injunction and younger.

[00:38:54] Speaker 00:
Thank you.

[00:38:55] Speaker 02:
Thank you, counsel.

[00:38:58] Speaker 02:
Mr Casper.

[00:39:00] Speaker 02:
Thank you.

[00:39:02] Speaker 02:
Quick point on that on the notion

[00:39:14] Speaker 02:
the cause of action here is habeas corpus.

[00:39:16] Speaker 02:
So in order for the court to do what it needed to do here, it needed to find that on a class-wide basis that the people in the class are illegally in custody.

[00:39:33] Speaker 02:
And I guess we've talked a lot about remedies here and potentially different remedies, but I do really want us

[00:39:42] Speaker 02:
have authority to issue a preliminary injunction like this in the first place, that they have to decide that on a classified basis that everybody's custody is illegal.

[00:39:53] Speaker 02:
And I just do not think that there's support for that here.

[00:39:57] Speaker ?:
Again, nothing else putting aside the idea of whether the arraignment, the initial arraignment is a critical stage where the right to counsel has been violated.

[00:40:11] Speaker 02:
were affected by this injunction are people who are waiting for substitute counsel.

[00:40:16] Speaker ?:
And I do not – I haven't heard any argument as to how they're vaccinated on lawful.

[00:40:23] Speaker 02:
And if that's the case, then it's not true that they're likely to prevail as a class, and it's not true that the court should be granting preliminary injunctive relief.

[00:40:41] Speaker 02:
raised about whether habeas is the proper vehicle for this, whether it's illegal or not.

[00:40:48] Speaker 02:
Is that an argument that you raised to the district court or to this court?

[00:40:53] Speaker 02:
Yeah, I guess we certainly argued below that in order to grant the relief that they were asking, we needed to find that everybody was illegally caught.

[00:41:03] Speaker 02:
Well, what I'm saying is that whether habeas corpus is the proper vehicle.

[00:41:09] Speaker 02:
One of the concerns that the court raised in its letter to the parties, the order, was whether or not this case could be brought as a 2241.

[00:41:18] Speaker 02:
Was that issue ever raised?

[00:41:24] Speaker 02:
No, that's not preserved.

[00:41:25] Speaker 02:
And so the only way I think you get there is if it's jurisdictional.

[00:41:30] Speaker 02:
We certainly didn't make that argument before.

[00:41:34] Speaker 02:
But I do really want to stress that I guess I'm also concerned above and beyond

[00:41:39] Speaker 02:
the notion that we're talking about remedies without ever really establishing that everybody in the class is right to be violated or that they're illegally in custody.

[00:41:51] Speaker 02:
The idea that I think we want to be really careful in saying that Oregon's arraignment procedures violate the right to counsel.

[00:41:57] Speaker 02:
I mean, Oregon's arraignment procedures I think are pretty standard and it would be a significant legal decision to say that

[00:42:08] Speaker 02:
what's happening in arraignment in Oregon is a violation of the right to counsel.

[00:42:14] Speaker 02:
So, I mean, I don't know.

[00:42:15] Speaker 02:
I think that happens everywhere, right?

[00:42:17] Speaker 02:
And then I don't know how it happens otherwise.

[00:42:21] Speaker ?:
Yeah.

[00:42:22] Speaker 02:
So I guess I'm a little concerned with the idea that I think at best, the argument on the other side has to be, fine, the right to counsel wasn't violated.

[00:42:32] Speaker 02:
There was counsel at arraignment.

[00:42:33] Speaker 02:
The right to counsel wasn't violated there.

[00:42:35] Speaker 02:
But somehow that there's a due process right to have

[00:42:38] Speaker 02:
appointment of counsel thereafter in case there's a change in circumstances or in case they want to modify the release of it.

[00:42:46] Speaker 02:
But I don't think there is, I don't think that due process argument gets off the ground, but there's no, there's no, I just, I was assured about the court writing that Oregon's arraignment procedures violate the right to counsel.

[00:42:59] Speaker 02:
And I see it way over time, and so I... But, Council, again, if we're reviewing for abuse of discretion of a preliminary injunction, we wouldn't have to make definitive rulings on anything, correct?

[00:43:08] Speaker 02:
We could just say, at this stage, apply the winter factor, as we don't see an abuse of discretion.

[00:43:13] Speaker 02:
You could, but again, and it's kind of funny because, of course, petitioners say that they want you to review for abuse of discretion on the appeal and for errors of law across the field.

[00:43:23] Speaker 02:
Of course, we're saying we want you to review... We think that there's an error of law here.

[00:43:30] Speaker 02:
And that's the short answer to that.

[00:43:34] Speaker 02:
If you want to wrap up, you're about 90 seconds over.