Michael Bertholf reads files at his desk in his Medford law office. 

A Medford lawyer is hopeful the Oregon Supreme Court will schedule to hear his arguments over forced judicial appointments in a case that could shift the tide of the state’s public defender crisis.

Public defender Michael Bertholf filed a motion Tuesday through his appellate lawyer to continue proceedings even after a Douglas County Circuit Court judge released Bertholf Monday — at the high court’s order — from representing a defendant facing multiple felony charges in two separate cases. 

“If (my case is) not alive, then judges can continue doing it,” Bertholf said, referring to judges forcing lawyers into representation. “Then, if attorneys fight back, then maybe they’ll vacate the order again, but it doesn’t solve the problem.”

Bertholf said, “I’m happy that finally the judge is forced to see the light” after Judge George Ambrosini vacated his Aug. 23 forced appointment of Bertholf to represent Aurelio Sandoval, 30, in Douglas County.

Ambrosini’s decision came after the Oregon Supreme Court allowed Bertholf’s petition Friday and ordered Ambrosini to vacate the forced appointment or show cause for not doing so. 

The justices’ decision Friday included the dismissal of a high-profile case, Public Defender of Marion County Inc. v. Izell Guajardo-McClinton, which also challenged forced judicial appointments. The Marion County case was declared moot by the high court because the attorney at the center of the case, Tim Downin, left his job at the public defender firm.

The high court’s dismissal was not surprising to Bertholf.

“The guy that was working at the public defender’s office no longer works there, so I fully expected the Supreme Court to grant my mandamus,” the Medford attorney said. “It’s a live issue; it’s an issue the Supreme Court clearly wants to make a decision on.”

With the Marion County case and the forced appointment of Bertholf behind them, high court justices could continue with proceedings and examine whether it is lawful for trial courts to force lawyers to represent clients over the lawyers’ objections. Portland-based attorney Laura Graser encapsulated the issue in her motion Tuesday.

“The Marion County case asked the court to do too much. In my opinion, that was a strategic mistake,” Graser said in an interview. “They should have should have asked just one simple question: Does the trial court have the power to force a lawyer to take case when the lawyer said he has too many cases and can’t responsibly take another case?”

In her filing, Graser says the justices may — but do not have to — dismiss proceedings after a trial judge complies with the high court’s decision. She also cited another statute that allows the Oregon Supreme Court to review moot cases.

“There is a very small window where the Supreme Court will take a case that has become moot if it is of widespread public importance,” Graser said. “I argue they should decide this case, even though Michael is off the hook, because this keeps happening.”

She was referring the judges forcing attorneys to represent clients, which in Marion County alone has occurred in over 300 cases.

Bertholf told Douglas County’s Ambrosini in an August court filing he believed he could not represent Sandoval because the Medford attorney was never asked if he could, he was already beyond his contracted caseload and could not take on a new case while complying with rules of professional conduct.

Pull Quote

“It really is not beneficial to the system, to clients, to the attorneys involved to have to be forced take on cases that they may or may not be able to take. It doesn’t solve the problem. It creates a lot more problems.”

— Medford-based public defender Michael Bertholf

Still, in an interview after his forced appointment, Bertholf said, “I will do all of the legal work that needs to be done to assist Mr. Sandoval.”

This week, after the state high court allowed his petition, Bertholf again talked about why judges should not forcibly appoint public defenders.

“It really is not beneficial to the system, to clients, to the attorneys involved to have to be forced take on cases that they may or may not be able to take,” Bertholf said. “It doesn’t solve the problem. It creates a lot more problems.”

The problems include the “cascading” of cases, which Bertholf said would have impacted his ability to represent Sandoval at trial next year. 

The Medford attorney said he would like to see a ruling from the Oregon Supreme Court stating why circuit court judges should stop making forced appointments.

“The Supreme Court is the court that guides the trial courts on how they operate and what they need to be doing, so it’s very important, Bertholf said.

While he hopes the state’s high court rules the way he wants on forced judicial appointments, Bertholf admits, “I don’t know what the Supreme Court is going to say.”

Graser asked the high court to schedule Dec. 14 as the date for oral arguments in Bertholf’s case. A spokesperson for the Oregon Supreme Court said he did not have any information on possible next steps.