Judge orders gov. to testify

A federal judge in Sacramento on Thursday ordered that Gov. Arnold Schwarzenegger, his chief of staff and another top aide must answer questions under oath in depositions by lawyers for inmates, in advance of a trial on state prison overcrowding.

U.S. Magistrate Judge John F. Moulds rejected the state’s argument that top officials are immune from depositions based on previous court decisions saying that in some cases high-ranking government officials cannot be interviewed about their decision-making processes.

Moulds said that immunity is not absolute and cited other instances in which top officials had been forced to testify. He said that because Schwarzenegger and his two aides had personally been involved in dealing with prison overcrowding, inmates’ lawyers “are entitled to inquire about these matters directly of the governor, his deputy cabinet secretary and his chief of staff.”

Moulds ordered that Schwarzenegger be deposed Sept. 3 for a maximum of four hours. He ruled that Chief of Staff Susan Kennedy could be deposed Sept. 2 and Deputy Cabinet Secretary Robert Gore on Sept. 4 for a maximum of six hours each.

Lisa Page, a spokeswoman for Schwarzenegger, said the governor’s office disagreed with the decision and would ask for reconsideration before a federal panel that has scheduled a trial on overcrowding starting in November.

State prisons hold about 170,000 inmates, roughly double their design capacity. Inmates’ lawyers have asked the judges to place a cap on the inmate population, which could result in an order to release prisoners before the end of their terms.

The three-judge panel, U.S. District Judges Thelton Henderson, Lawrence Karlton, and 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt, will decide whether overcrowding is the primary reason that healthcare in state prisons does not meet federal constitutional standards. If they make that finding, they would then decide whether a cap on the population is the solution.

Inmates’ attorneys listed Schwarzenegger, Kennedy and Gore as possible trial witnesses, but state lawyers have protested, saying the three officials could provide written answers or that the same information could be gleaned from lower-ranking staff.

But Moulds disagreed. He said in his decision that “the governor has made a number of public pronouncements on matters that will be at issue at the trial” and that he has personally participated in strategy sessions on overcrowding with state lawmakers and others.

Moulds said he was also convinced of the “personal involvement of Deputy Cabinet Secretary Gore and Chief of Staff Kennedy in matters of critical importance” to the focus of the trial.

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michael.rothfeld@latimes.com