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California Gov. Arnold Schwarzenegger asked federal judges Tuesday to stay their order demanding a state plan by Sept. 18 for reducing the prison population by 40,000 over two years, signaling his intent to take the issue to the U.S. Supreme Court.

California Gov. Arnold Schwarzenegger asked federal judges Tuesday to stay their order demanding a state plan by Sept. 18 for reducing the prison population by 40,000 over two years, signaling his intent to take the issue to the U.S. Supreme Court. 4

The three-judge panel already made clear in its Aug. 4 ruling (pdf) that it would not consider a stay and would view “with disfavor … any effort to postpone or delay an expeditious resolution of the terms of the population reduction plan.”

So Schwarzenegger plans to appeal the ruling itself to the U.S. Supreme Court today, spokesman Aaron McLear said. And if the panel does not stay its order by Friday, the governor will appeal that decision, too, McLear said.

“It’s unfortunate,” said Donald Specter, director of the Berkeley, Calif.-based Prison Law Office, which is representing the plaintiffs in one of two inmate lawsuits before the three-judge panel. “The governor himself has said … that the prison system is collapsing under its own weight.”

Attorneys said Tuesday that the governor’s promised appeal would appear to be the first Supreme Court challenge of a court-ordered population cap since the enactment of the Prison Litigation Reform Act in 1996.

The governor has said repeatedly that he believes California’s 33 prisons are overcrowded, a stance that puts him at odds with Republican colleagues in the Legislature. Schwarzenegger’s own proposals would reduce the inmate population by 37,000 over two years. That’s close to the 40,000 figure set by the federal court. But, McLear said, the governor doesn’t think the judges should be directing state leaders.

“We believe we can reduce our prison population without the court intervening,” McLear said.

So far the governor has been unable to sell his plan to a reluctant Legislature. On Monday, the state Assembly adopted prisons legislation that omitted key but controversial population-reducing provisions. The resulting bill would only lower the number of inmates by 17,000.

On Tuesday, Senate President Pro Tem Darrell Steinberg, D-Sacramento, said he was in no hurry to bring the Assembly bill to a reconciliation vote in his house, which passed a far more sweeping version last week.

“I want to talk to my caucus and think about it,” Steinberg said. Water legislation, not prisons, is the Senate’s biggest priority before lawmakers recess on Sept. 11, he added.

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