PORTLAND, Ore. (CN) — A Ninth Circuit panel Tuesday ruled in favor of a class of prisoners, upholding an order compelling former Oregon Governor Kate Brown to be deposed in their case in which they claim the state unnecessarily exposed them to a high risk of contracting Covid-19.
The lawsuit, filed in April 2020, was brought by six inmates at Oregon Department of Corrections facilities and the representative of a deceased prisoner’s estate. It seeks damages for Eighth Amendment violations incurred due to the policies of Brown and other state officials, whom the plaintiffs claim failed to protect prisoners from the spread of Covid-19.
“During the pendency of the lawsuit, thousands of people housed at ODOC facilities have been infected with Covid-19,” the inmates wrote in their sixth amended complaint, adding that at least 44 inmates had died.
The suit seeks relief for two classes: one comprised of prisoners who contracted Covid-19 and another made up of those who died from the virus or Covid-related complications.
In July 2023, attorneys from Oregon’s Department of Justice petitioned for a writ of mandamus seeking to quash U.S. Magistrate Judge Stacie F. Beckerman order requiring Brown to be deposed.
“In so ordering, the district court contravened binding precedent and flouted constitutional principles,” the defendants wrote in the petition. “No court in this circuit had ever ordered the deposition of a governor over official state decisions.”
But Beckerman reasoned in her order that “a brief deposition is less burdensome and will not distract from any official duties” now that Brown has left office.
“In addition, this is not a case of one [adult in custody] seeking to depose the governor about an individual claim, nor is there any evidence that plaintiffs seek to depose former governor Brown for any improper purpose,” Beckerman wrote.
The judge ultimately ordered Brown’s deposition based on three requirements the Ninth Circuit established with In re U.S. Department of Education, in which the appeals court held that held that the lower court improperly ordered 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 was essential and unobtainable by any other means.
While arguing for the petition in November 2023, the state postured 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.
Assistant State Attorney General Robert Koch, representing Brown, also argued that the plaintiffs hadn’t exhausted their discovery with more specific questions and that Beckerman’s decision lacked any finding of bad faith. Koch added that public records and previous depositions already indicated Brown’s reasoning for clemency and prison closures, stating, “As best as we can tell, plaintiffs just don’t like the answer.”
On Tuesday, however, Senior U.S. Circuit Judge Margaret M. McKeown and U.S. Circuit Judge Ronald M. Gould disagreed with the state’s arguments, ruling that Beckerman adhered to the standards set in In re U.S. Department of Education and that the plaintiffs’ failure to pursue certain information was not a legal error but a challenge to “the factual findings of the district court during discovery, which are entitled to deference.”
“Justifying a writ of mandamus is ‘especially difficult in the discovery context,’ to the extent that we have described it as generally ‘unavailable,’” the ruling continued. “Defendants have not pointed to any egregious error by the district court that would overcome the exceedingly high bar for a writ of mandamus in the discovery context.”
Attorneys from both sides did not immediately return requests for comment.
Sitting by designation from the U.S. Court of International Trade, Judge Maurice Miller Baker wrote a dissenting opinion, saying that the majority’s reading of Department of Education “unfortunately neuters” the prerequisite of bad faith “by allowing it to be satisfied by a mere allegation.”
The Trump appointee also said that serving as a state governor, especially during a time of crisis like the pandemic, is a "grave responsibility,” adding that top-ranking officials should not be unnecessarily burdened by depositions on their official decisions.
“In performing their official duties, federal cabinet officers and state governors must make innumerable decisions that inevitably give rise to civil lawsuits,” Baker wrote, noting that Brown has been sued 115 times while in office.
Baker added that, outside of extraordinary circumstances, such government leaders should be able to make such decisions without fear of having to later explain their thinking in a deposition.
A pending appeal seeks immunity for Brown and former Oregon Health Authority director and codefendant Patrick Allen. A week before the appeal hearing in November 2023, the plaintiffs filed a seventh amended complaint, and the defendants have since filed motions for summary judgment. A hearing on those motions will occur on Feb. 28, while a jury trial is still scheduled for July.
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