Vol. 23 No. 1- Coleman/Plata Update

January 4, 2008

In our last update on the prisoner release litigation [Coleman v. Schwarzenegger/ Plata v. Schwarzenegger], we informed you that we were preparing to file a joint Motion for Reconsideration/Motion for Clarification on behalf of all Intervenor-Defendants, excepting the County Intervenors (Sheriff, Police Chief, and Chief Probation and Corrections Intervenors; Republican members of the California Senate and Assembly, and the District Attorney Intervenors). The motion related to the Three-Judge Court ‘s order bifurcating the case and excluding Intervenors from Phase I of the proceedings. The Three-Judge Court denied the Motion to Reconsider but discussed the scope of Phase II, if reached.

Settlement Process Implemented

On November 1, 2007, the Three-Judge Court issued an order appointing a settlement referee and consultant to aid all parties, including Intervenors, in settlement discussions. The Honorable Elwood Lui was appointed as the settlement referee and the Honorable Peter Siggins was appointed as the settlement consultant. We have met with Justices Lui and Siggins and are fully participating in all settlement discussions.

However, counsel for all the Intervenors had concerns regarding the Three-Judge Court’s order appointing the settlement referee and consultant because it required Intervenors to consent to ex parte contacts. Additionally, while both are highly regarded, our concerns were that Justice Lui is the managing partner of Jones Day, which represented Plaintiffs up to the week before the order was issued, and Justice Siggins formerly represented the Attorney General’s office in the Plata case. Therefore, on November 6, 2007, we filed a joint objection with the Legislative and District Attorney Intervenors to the order.

On November 8, 2007, the Three-Judge Court responded to our objections and issued an order setting conditions on Intervenors’ participation in settlement discussions. The order did not address our concerns but simply stated that Intervenors would not be required to participate in settlement discussions or comply with any settlement rules or procedures. Since that further reduced the Intervenor’s participation, we filed a response to the order on behalf of our clients (Sheriff, Police Chief, and Chief Probation and Corrections Intervenors), informing the Three-Judge Court that we would fully participate in all settlement discussions and comply with any settlement rules in procedures. In fact, despite our objections, we had already complied with the settlement referee’s request that we submit a confidential settlement proposal by November 8, 2007 . Settlement discussions are ongoing.

Successful Ninth Circuit Writ

On December 10, 2007, Akin Gump Strauss Hauer & Feld, attorneys for the Legislative Intervenors, filed a joint emergency petition for a writ of mandamus, on behalf of all Intervenor-Defendants (excepting the County Intervenors), in the Court of Appeals for the 9th Circuit, requesting that the Court of Appeals vacate the Three-Judge Court’s bifurcation order that excluded Intervenors from Phase I of the case. On December 12, 2007, the Court of Appeals granted our motion and issued an order stating that our writ raised issues that warranted a response. Plaintiffs were directed to file a response by December 14, 2007, which they did.

Following the filing of this joint emergency petition, on December 14, 2007 the Three-Judge Court issued an order staying the proceedings and vacating all pre-trial and trial dates.

We await notice of further proceedings before the Three-Judge Court . We continue to participate in settlement discussions and are moving forward with our Court of Appeal petition. We will continue to update you as the case progresses.