Plaintiffs in California Top-Two Primary Case Win Ability to Ask for Reconsideration of Attorneys Fees' Award Against Them

On September 17, a hearing was held in San Francisco Superior Court in Field v Bowen, over whether Judge Curtis Karnow’s order of August 1 could be reconsidered. The court order of August 1 said that the six plaintiffs (four voters and two candidates) who had challenged certain details of the California top-two open primary system must pay almost $250,000 to the attorneys for the forces who had intervened in the lawsuit to defend the top-two open primary law.

Attorneys for the plaintiffs had then asked for reconsideration, and that matter was set for a hearing in early October. But then, with very little notice, an attorney for the intervenors filed a document with the court, saying the reconsideration hearing should be canceled because the request for reconsideration is flawed. Judge Karnow started to hear the matter, but attorneys for the plaintiffs asked him to recuse himself. He did so. The matter was then transferred to another judge, who ruled after just a few minutes that the reconsideration hearing may proceed in October. The courtroom was filled to its capacity (45 chairs) with members and supporters of the Green, Libertarian, and Peace & Freedom Parties.

The issues in the original case were whether it is constitutional for a state to print labels on the ballots, showing which parties the candidates are registered in, for some candidates but not other candidates. Also, the case questioned whether the state could legitimately print write-in space on the ballot and yet also provide that write-in votes can never be counted. These two provisions of the law were upheld last year in the State Appeals Court, and the only remaining issue in this case is whether the people who sued should be required to pay the attorneys for the intervenors, who are Californians for an Open Primary, the California Independent Voters Project, and Abel Maldonado, former legislator and former Lieutenant Governor. Technically, the first two intervenors asked for attorneys fees, but Maldonado did not. However, the August 1 order erroneously states that all three intervenors had asked for the attorneys fees.

Ralph Nader filed an amicus curiae on the side of the plaintiffs, as did Fairvote, the National Lawyers Guild, the Center for Constitutional Rights, and Steve Hill.


  1. Casual Bystander · · Reply

    It is a real shame that the sheeple don’t understand the ramifications of crappola like this and the bogus challenge system in Pennsylvania wherein parties or candidates can be at risk for far more money than most people make in 2 years. This is the kind of thing that can bankrupt somebody which serves to stifle any kind of dissent. Doesn’t seem very American to me.

  2. Richard, will you post links to the briefs re attorney fees? Thanks.

  3. Richard Winger · · Reply

    Gautam Dutta (attorney for the plaintiffs) has briefs posted at his web page,

  4. I’m really glad to hear things went well so far! Great to know that 45 people filled that courtroom for you Richard. I missed it because I was home sick, unfortunately.

  5. Sanda Everette · · Reply

    I was glad to be there and to see so many Greens from San Francisco, Alameda, San Mateo, and Santa Clara counties as well as folks from other 3rd parties and groups interested in electoral reform.

  6. MarkBrown · · Reply

    Mr. Dutta did a fine job with his Brief in Opposition. He is exactly right, no way this award can stand. It violates federal law, which preempts state law in this kind of matter, and even contradicts California law.

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