Former Gov. Kate Brown will be compelled to answer questions in a deposition as part of a pending case that alleges she and the state failed to protect Oregon prisoners during the COVID-19 pandemic, a judge ruled Wednesday.
The ruling will make her the first Oregon governor, either current or former, to be deposed in a civil case, according to attorney Anit K. Jindal, who argued on behalf of the state.
A class-action suit accuses Brown and other state officials of acting with “deliberate indifference” to the health and safety of inmates during the pandemic. A trial is set to start July 2024.
U.S. Magistrate Judge Stacie F. Beckerman said the deposition can last no longer than two hours.
“A two-hour deposition in this certified class action is not too much to ask of a former elected official,” Beckerman wrote in her ruling.
She found that Brown was “personally involved in making relevant decisions” regarding the Oregon Department of Correction’s response to COVID-19 in the state’s prisons.
Those suing the state convinced her that Brown’s testimony “is necessary to prove their case, in particular their deliberate indifference claims against her,” Beckerman wrote.
Lawyers for the state and Brown had objected to any deposition of the former governor.
They argued that high-ranking government officials such as Brown are protected from depositions unless “extraordinary circumstances” justify the testimony. That bar hadn’t been met, they said. Further, Jindal argued that deposing a governor would have a “chilling effect” on others who may be considering seeking public office and don’t want to become “mired in litigation.”
The judge found otherwise.
“Plaintiffs have established that Governor Brown’s testimony is both relevant and necessary, and therefore essential, to proving their claims,” Beckerman wrote.
While the deposition privilege is “important to protect high-ranking government officials from harassment, distraction, or burden” during the ” demanding duties of their office,” now that Brown has left office, a brief deposition is less burdensome and won’t impede her official duties, Beckerman concluded.
Further, the judge pointed out that the case is brought by a ”certified class of thousands” of people who were infected with COVID-19 while in state custody, including the estates of dozens of prisoners who died. The potential damages class in the suit consists of more than 3,600 adults in custody who were infected with COVID-19 while in state prison and 45 prisoners who died as a result of COVID-19, according to court records.
Beckerman found it “unlikely” that a gubernatorial candidate would be discouraged from seeking public office with knowledge that she might be required to sit for a brief deposition ordered upon leaving office. Further, she wrote, there was nothing in the record that suggested Brown is reemployed nor that any other duties would interfere with her ability to be deposed.
The plaintiffs seek to ask Brown about her knowledge of the state’s actions regarding the spread of the coronavirus in Oregon’s prisons while she served as governor, the judge wrote.
Their suit alleges that the state violated the inmates’ Eighth Amendment right against cruel and unusual punishment by failing to provide adequate health care during the pandemic and by operating prisons without the capacity to treat, test or prevent spread of the virus. The suit also alleges state corrections officials were negligent in not carrying out proper preventive measures.
They contend the state failed to adopt COVID-19 safety measures, such as ensuring that inmates and staff wore masks when required, enforcing social distancing or those with symptoms were quarantined.
Beckerman previously held that state leaders can face liability claims if they didn’t carry out safety measures according to policies adopted to stem the tide of COVID-19.
Lawyers for the state argued that the state made a good-faith effort to address a significant problem and that Brown commuted the sentences of more than 120 adult inmates, allowing their early release to reduce the prison population, shortly after she declared a state of emergency amid the pandemic.
They also have described some of the steps the Corrections Department took during the pandemic, including buying 60,000 cloth masks for staff and inmates, creating respiratory clinics and quarantining exposed prisoners.
In a separate order, the judge also ordered Kevin Gleim, the former attorney for special projects in the governor’s office, to be available for deposition.
Those suing allege that other states and experts widely viewed the release of adults in custody at the onset of the COVID-19 pandemic as critical to preventing the spread of the virus in prisons but contend Oregon and Brown “did not engage in meaningful population reduction measures,” the judge pointed out.
As a result, the information Brown and others received in connection with the early release program and her decision to close two prisons during the pandemic is relevant, Beckerman wrote. The two prisons that were shuttered were Shutter Creek Correctional Institution and Mill Creek Correctional Facility.
– Maxine Bernstein
Email mbernstein@oregonian.com; 503-221-8212
Follow on Twitter @maxoregonian
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