Judges from the Ninth Circuit took up arguments on Tuesday on whether a federal court can depose Oregon’s former governor over official state decisions involving prison management during the pandemic.
SEATTLE (CN) — The Oregon Department of Justice petitioned the Ninth Circuit Court of Appeals on Tuesday that would direct Oregon’s federal court to rescind its order compelling the deposition of former Oregon Governor Kate Brown.
The deposition order from U.S. Magistrate Judge Stacie F. Beckerman concerns a prisoner civil rights class action claiming Brown and the state failed to protect prisoners from the spread of Covid-19. The lawsuit — filed in April 2020 and led by six inmates at Oregon Department of Corrections facilities and the representative of a deceased prisoner’s estate — seeks damages for Eighth Amendment violations by the policies of Brown and other state officials.
“During the pendency of the lawsuit, thousands of people housed at ODOC facilities have been infected with COVID-19,” the inmates wrote in the sixth amended complaint, adding that at least 44 inmates had died. Overall, the suit seeks relief for two classes instead of one, separated by prisoners who contracted Covid-19 and those who died from the virus or Covid-related complications. The jury trial is scheduled for July 2024.
Beckerman granted the plaintiffs’ motion to compel Brown’s deposition in June 2023 using three requirements that the Ninth Circuit established with In re U.S. Department of Education, a 2022 appeal that held that a federal court erred in ordering the deposition of former U.S. Secretary of Education Betsy DeVos. In that ruling, the court found that DeVos’ deposition required a showing of agency bad faith and that the information sought is essential and unobtainable by any other means.
“The court has no reason to conclude that the Ninth Circuit would apply a different test to evaluate the deposition of a governor, who similar to a cabinet secretary is a high-ranking official serving in the executive branch,” Beckerman wrote before explaining how the plaintiffs had met all three requirements.
Just months before, however, Beckerman partially granted a protective order to prevent Brown’s deposition while she finished her term, explaining that the plaintiffs had “not yet exhausted other less intrusive discovery methods, such as deposing Governor Brown’s staff or serving interrogatories.”
After the plaintiffs questioned several of Brown’s staff members and high-ranking correctional officials, Beckerman agreed that none of the discovery methods provided them with all of the information necessary for their case. More specifically, the plaintiffs sought information on what Brown knew regarding “the heightened risk of COVID-19 in the state’s prisons, particularly with respect to the population density absent early releases and as a result of prison closures,” Beckerman wrote.
Yet, within Oregon’s writ of mandamus, the state postures the plaintiffs’ request as one that supplements an “inapt” Eighth Amendment claim on whether Brown inflicted cruel and unusual punishment for not releasing more prisoners than she did in the early pandemic and by closing two state prisons to save money in July 2021.
Sitting by designation from the U.S. Court of International Trade, Judge Maurice Miller Baker took up this argument with the prisoners’ attorney, Nadia Dahab of Sugerman Dahab.
“Why do you need this information if, in fact, you fail to state a claim,” the Trump appointee asked.
To this, Dahab explained that the plaintiffs’ claim is not hinged on the number of inmates Brown released to achieve social distancing, but that she was deliberately indifferent in certain actions and inactions while closing prisons without seeking additional funding to open facilities for social distancing.
Dahab said that Brown may have made those decisions “knowing that that mass noncompliance was widespread, the rate of death in the Oregon Department of Corrections was many times that of the general population and that social distancing cannot simply be achieved in the custodial setting.”
Whether Brown’s key staff members could have spoken to that understanding, Dahab told the judges she received answers like “I don’t know” or “I don’t recall.”
Dahab’s point pivots back to an earlier suggestion from Assistant State Attorney General Robert Koch, representing Brown, who argued that the plaintiffs hadn’t exhausted their discovery with more specific questions and that Beckerman’s decision lacked any finding of bad faith.
“There needs to be some type of bad faith, some type of change in agency position that warrants intrusion by the judicial branch into the decision-making processes of the executive branch,” Koch said, later adding that public records and previous depositions already indicate Brown’s reasoning around clemency and prison closures.
“As best as we can tell, plaintiffs just don’t like the answer,” Koch said.
Senior Circuit Judge Margaret M. McKeown and U.S. Circuit Judge Ronald M. Gould — both Clinton appointees — joined Judge Miller in considering the complex issue, which is separate from Brown’s previous pending appeal for the case heard in April.
“As for what the correct result is for us, we will see in time,” Judge Gould said before adjourning the hearing.
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