Representatives of the City of Arcata and Citizens in Support of Measure M appeared in Humboldt County Superior Court this morning to present arguments on the legality of Measure M, a voter-approved initiative that requires the Earth flag to be flown atop all city-owned flag poles in Arcata. 

Image contributed by Dave Meserve.

The unprecedented ballot initiative was narrowly approved by Arcata voters in November 2022, with a final vote of 3,051 to 2,781, or around 52 percent in favor. 

A few days after the election results were finalized in December 2022, the Arcata City Council voted unanimously in closed session to uphold the voter-approved initiative to honor the will of the voters, with the caveat that the city “concurrently seek judicial resolution to determine if the measure violates state or federal law.” 

Three months later in March 2023, the City of Arcata filed a “Complaint for Declaratory Relief” against Citizens in Support of Measure M regarding the validity of the ballot initiative. The complaint asserts that “Measure M does not comply with state and federal law, which provides that the American flag fly at the top of all flagpoles.”

“A present and actual controversy exists between [the City of Arcata] and [the Citizens in Support of Measure M] regarding the city’s obligation under Elections Code to comply with Measure M and fly the Earth flag at the top of its three flag poles or to comply with state and federal law, ignore the elections results and not fly the Earth flag at the top of its flag poles,” according to the complaint.

Speaking in court today, Angela Schrimp de la Vergne, a Sacramento-based attorney representing the City of Arcata, said it is well within voters’ rights to place such an initiative on the ballot, but once it is passed and ratified by the city council, it becomes “government speech” and is no longer protected.

Schrimp asserted that the voter-approved measure violates California Military and Veterans Code Section 617, which states: “No other flag or pennant shall be placed above, or if on the same level, to the right of the Flag of the United States of America, except during church services, when the church flag may be flown.” 

The measure is also in conflict with a section of California Government Code that directs all municipalities to fly the U.S. flag and California’s state flag outside of all city government buildings. “At all times the National Flag shall be placed in the position of first honor,” according to Section 436.

Eric Kirk, a local attorney representing Citizens in Support of Measure M, had a different interpretation of the law. He agreed that the U.S. flag should be placed above the state flag, per Section 436, but said state law “doesn’t say anything about any other flags.”

“We don’t know what ‘first honor’ means in this case,” he said. “They’re using the word ‘honor’ rather than ‘altitude’ or ‘position’ [in relation to] the flag. Maybe it means something other than the physical position of the flag, and basically [refers to] how the flag is being treated.”

Kirk emphasized that Measure M “was not intended to dishonor the American flag in any way” but rather was brought forward “simply as a matter of the philosophy and values” of Arcata. As such, “the American flag has not been removed from its honor,” he said.

[UPDATE: In a follow-up email, Kirk said this point is ancillary to his primary argument, which concerns the power of the voter initiative. Kirk added:

Our defense of Measure M is in the fact that it was passed as an initiative. The City’s position is that a local initiative is no more powerful than a resolution passed by the city council and is thus just as limited when it comes to state law, especially as Arcata is a “general law” city rather than a charter.

The voter referendum in California, unlike other states, is considered a power “reserved by the people” not granted by the state. The California Constitution makes this clear and the case law establishes that in most cases the voters have the power to override the legislature. A passed initiative is given the presumption of validity and all doubts are to be resolved in its favor, with the reserved power of the people being “jealously guarded” by the courts.

The question presented in the case is whether the voters of a local jurisdiction can pass into law something that contradicts state law, Kirk said.]

Judge Timothy Canning did not take any action during this morning’s court proceedings. He will issue a decision on the matter sometime in the next 90 days.

Reached for additional comment on the matter, Dave Meserve, former Arcata City Council member and the author of Measure M, argued that it is “only logical” to have to Earth flag on top of the flagpole.

“From an environmental point of view, we can only have a healthy country if we have a healthy Earth, so we have to make the Earth our first priority. Putting the Earth flag on top is just a reminder of that,” Meserve said. “The people of Arcata have spoken; the Earth is a priority for them. … There’s no rational reason why we shouldn’t be able to do that, as far as the law is going to be interpreted.”


DOCUMENT: Complaint for Declaratory Relief