Attorneys are contesting a federal judge’s decision not to hold Oregon in contempt of court over its treatment of mentally ill defendants, saying the judge’s decision to wait three months before issuing a final opinion was wrongheaded and leaves people jailed in violation of their rights.

The attorneys, representing Oregon’s largest public defender office, filed an emergency motion Thursday with the Ninth U.S. Circuit Court of Appeals, asking its judges to overturn Michael W. Mosman, the chief federal judge in Oregon, and force him to decide if the state is in contempt.

Mosman heard arguments earlier this month about Oregon’s violation of a 2002 court order that requires speedy admission of defendants who need trial fitness treatment at the state psychiatric hospital. The order was intended to stop the unconstitutional imprisonment of mentally ill defendants in Oregon.

State officials have largely complied with the order in the 17 years since it was issued. But problems emerged late last year, when the psychiatric hospital was pushed to the brink as the number of defendants ordered there for trial fitness treatment surged to record levels.

State lawyers argued that the capacity crisis was unforeseeable and that health officials have taken all reasonable steps to fix the situation. Lawyers for an advocacy group, as well as those for the public defender office, said state officials had acted slowly if at all.

Mosman said the issue was “deeply serious,” but made plain that he was unsure a contempt ruling was appropriate. He issued an order declaring he would wait at least 90 days to see if the state had put in place promised reforms.

At least two dozen people remained jailed in violation of their constitutional rights as a result of Mosman’s indecision, said Jesse Merrithew, the lead attorney for the public defender office.

“Throughout this state, severely mentally ill people remain in jail cells despite the fact that everyone agrees that it is unconstitutional for them to remain in jail,” Merrithew said in a statement.

The appeals court “has the power to stop this injustice,” he said, arguing in the motion that harms to defendants caused by the jail stays “require immediate court action.”

It’s unclear if the Ninth Circuit will take up Merrithew’s motion or reverse Mosman’s ruling.

The appeals court upheld the 2002 decision requiring speedy hospital admissions, rejecting state officials’ complaint that they could not possibly comply with its terms. The court did so noting “the undisputed harms that incapacitated criminal defendants suffer when they spend weeks or months in jail waiting for transfer” to the state mental hospital.

A state court judge this month held Oregon in contempt of court for violating the 2002 order in a separate case. Washington County Circuit Court Judge D. Charles Bailey did so saying officials had willfully violated the order and imposed fines that lawmakers cited as the impetus for a reform effort.

-- Gordon R. Friedman

GFriedman@Oregonian.com