Partners in marriage, law win major high court case

Bien and Kahn, Class of '77, credit Brandeis with making them advocates for social justice

Attorneys Michael Bien and Jane Kahn, both members of the Class of ’77, met as freshmen.

A 21-year legal odyssey recently ended in triumph for husband-and-wife lawyers Michael Bien and Jane Kahn, both members of the Class of '77, when the U.S. Supreme Court ordered the state of California to reduce its prison population by 30,000 to relieve overcrowding so severe that it constitutes cruel and unusual punishment.

Bien and Kahn learned of the landmark ruling in a phone call from their co-counsel that came while they were walking through a New York area airport on their way back to San Francisco following a family gathering.

"It was an amazing feeling," said Bien, a partner at Rosen, Bien & Galvan in San Francisco, where his wife also works. "We gave each other a big hug. It has been such a long struggle - exhausting and exhilarating at different times. We just weren't sure how the court would rule. To have it come out in such a positive way is a remarkable feeling that our hard work has accomplished something."

Writing for the 5-4 majority, Justice Anthony Kennedy cited evidence from the couple's two decades of litigation of mentally ill prisoners waiting up to a year for treatment, suicidal inmates being held for 24 hours in phone booth-size cages without toilets, waiting lists of 700 inmates for a single doctor, gyms converted into triple-bunked living quarters that breed disease and violence victimizing guards and inmates alike.

The high court's ruling on May 23 exceeded even Bien's most optimistic expectations.

"We were prepared for a split decision with instructions from the court to go back and fix something," he said. "Instead, every point raised by the state was rejected by the 5-4 majority. It was a strong decision in favor of civil rights."

Bien was also gratified that the ruling reaffirmed the judicial system's role in intervening to decide matters that governments fail to address.

"The ruling establishes that courts are there when government power interferes with our fundamental human rights," he said. "Courts are there to stand up and give voice to the powerless."

The case has received national attention, including front-page stories in newspapers from New York to Los Angeles; Bien was interviewed by more than 10 different media the day the ruling was handed down.

The class-action civil rights case that eventually became Brown vs. Plata was first filed in 1990. It alleged that the state's overcrowded prison system denied fundamental constitutional rights to prisoners with serious mental illness. Five years later, a federal court ruled in favor of the prisoners and appointed a special master to oversee improvements. In 2006, after years of delays and little progress, the case was combined with a related California prisoner class-action case involving medical care.

Three years later, a three-judge federal panel in San Francisco ruled in favor of the prisoners, writing that overcrowding in the system was the primary cause of the system's constitutionally deficient medical and mental-health care and ordering a reduction in the inmate population. The state appealed the order, and the case was argued before the U.S. Supreme Court on Nov. 30, 2010.

Bien and Kahn, who met as Brandeis freshmen, both credit the university with nurturing their interest in pursuing social justice.

"The kind of perspective on American political and social history we gained at Brandeis contributed to our view that there was a need for social change and action," Bien said. "That's why we ended up not only as lawyers, but lawyers for social change."

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