As you recall, the voters of Arcata approved Measure M, which requires that the Earth flag be posted at the top of the two city-owned flagpoles. The Arcata City Council took some flack from opponents for implementing it when it is inconsistent with federal and state law with regard to how and in what position the flags are flown. After a couple of contentious meetings, the Council decided to file suit to nullify the measure and/or receive some guidance from the Court.
I agreed to defend the measure pro-bono and when the suit was filed I conferred with the city’s attorneys as to how to proceed. We agreed that there is no factual dispute – the measure was passed and it says what it says. We agreed that the issue could be decided in a motion for judgment on the pleadings, but we wanted the resolution to come in one hearing (if the moving party lost, the lawsuit would remain in place). So we filed “dueling motions” and briefed the motions. A moving party files the initial motion and brief. Then an opposition brief is filed. Then the moving party can file a “reply brief” prior to the oral argument hearing. So a total of six briefs were filed and the hearing was held yesterday.
Because several media sources covered the hearing and I’m not certain they had the time to really understand the case before they posted/aired their stories, I want to clarify what the legal issues are and I will try to keep it in lay terms even though there are some complex and even counterintuitive issues. I say counterintuitive, because the city is arguing that only in rare instances can a local initiative contradict or vary from a statewide law and that this is not one of those instances.
However, from our point of view, they are looking at the issue backwards. Article 4, section 1 reads: “The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum.” There are a number of other Constitutional provisions which reinforce and define the initiative process, and establish some details of the process.
About half of the states have some sort of referendum or initiative option. Most of the originated with the Progressive Movement (proto-liberalism as liberalism is understood today) of the early 20th century. Some are more restricted than others. In a few states, measures can only be put on the ballot by the legislature. Other states explicitly restrict the subject matter of such initiatives. In most referendum states the initiative is seen as a mere matter of delegation arising from the power of the legislature. Other states, including California, take the view that the initiative is a power “reserved by the people” as stated above. This is consistent with the progressive view (and implied during the Enlightenment with such works as the Declaration of Independence) that rights and power are not granted by the government, but rather that government itself arises from the social contract of the people – that the rights and powers of the people are merely recognized by government, not granted. Anything that may be granted is a “privilege” rather than a right.
And as an “original” power, the initiative may vary from, overturn, repeal, or otherwise rewrite anything passed by the normal legislative process. The right and power of the people to this aspect of “direct democracy” means that any measure passed is “presumed valid” and entitled to the benefit of all doubts, and is to be “liberally construed.” There is ample case law which says that courts have a “duty to jealously guard” this reserved power.
The legislature does have the plenary power, through its own grant of power from the people (this “reserving” and “granting” are kind of fiction – the words describe more of a philosophy than an actual decision making process by “the people”) to limit the reserved power. But to exercise this power, there must be an overriding statewide interest and there must be an intention by the legislature which is “clear” and “definitely indicated.”
There is no question that the flag laws (there are two statutes on the subject which are cryptic and one of them is kind of vague) could be overturned by a statewide ballot measure. The city concedes this. The question here is whether a local jurisdiction, can for its own local purposes, honor a measure which contradicts or varies from the state law.
The California Constitution does not specifically address this question, and the case law is kind of confusing and contradictory. However, there have been a few cases in which local initiatives were upheld even when it meant that local policy would vary from the statewide law. In one case, the local voters established a process for development which allowed some projects, in specific situations, to elude the CEQA requirements imposed everywhere else and it was upheld because state law on the particular situations was not held to represent an overriding statewide concern with an intention to limit the power of the local initiative.
Judge Canning asked me if he ruled in my favor wouldn’t that mean that voters in a county or city could decide to ignore the Brown Act. He nodded when I added highway laws, environmental policy, and other frameworks where there is a practical necessity for statewide uniformity. It doesn’t have to be explicitly stated from what I can see in the case law – it’s implicit if the policy could be compromised or worse without that uniformity and whether the state has exercised the control which demands uniformity.
The city takes the position that a local referendum does not have the same power as the statewide referendum (cites nothing for that proposition as stated – the Constitution certainly doesn’t differentiate) and that it is merely an extension of the power of a municipality or other incorporated entity, which in turn is merely an extension of the state and so bound by all its rules.
And in the alternative they argue that the statutes do present a “statewide concern” which demands uniformity in the symbolism of values represented by the state as a whole. But there is no preamble to these statutes which makes that clear. Their purpose isn’t stated, just the cryptically presented rules, and one which is kind of vague in stating that the US flag must be held in “first honor” (which the city’s attorney miscited as “highest honor).
There are some other legal issues. In my view the federal statute is irrelevant for two reasons. First, it has been held to be merely “advisory” by case law and the American Legion concedes the same. But even more fundamentally, it is made irrelevant by the 10th Amendment. There is nothing in any part of the U.S. Constitution which gives the federal government power to dictate how states fly flags.
I want to acknowledge that the city has made some compelling arguments. As usual, the law is kind of a muddle as there is no case precisely on point. But a “reserved power” is a pretty strong concept, as is the presumption of validity.
I don’t normally post about my work on this blog, but I am concerned that the reporters doing stories didn’t fully understand the arguments yesterday and didn’t have time to review the briefing.
The media stories did a pretty good job – I don’t envy a layperson having to come into a case with complex legal principles, attend an oral hearing, and then post/air by the deadline. Here is the coverage I’m aware of.
KRCR (I hope they don’t mind that I used their photo)
So we wait for a decision.
9 comments
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January 20, 2024 at 6:03 pm
Anonymous
Of course you took the case “pro bono”. Who in their right mind would actually pay you to represent them ?
January 20, 2024 at 6:13 pm
Eric Kirk
Well I guess there are enough people not in their “right minds.”
January 21, 2024 at 5:55 am
Anonymous
Congratulations Eric. Well done.
January 21, 2024 at 6:01 am
Questioner
Why doesn’t 4 USC 7 control?
January 21, 2024 at 8:30 pm
Jon Yalcinkaya
Good for you Eric for both taking this on pro-bono and for the explainer. Both progressive in the proto-liberal sense afaic.
I didn’t (& don’t) support this measure because who are we (well Arcata) in this largely white rural & privileged community to place the U.S. glad below the world when others, especially African Americans & especially in the South, depended on the stars & stripes to have emancipated them from the Confederacy.
Now that it’s passed, I hope Arcata wins.
January 22, 2024 at 7:20 am
Henchman Of Justice
Pro Bono for this flag flying controversy…
… flags over people… there are so many locals who need pro bono representation for due process violations by government or just bad policies that allow due process violations…
… Which begs the question,
“Eric Kirk, will you take on a pro bono case to fix public policy that adversely effects the general public, allows for due process violations against random citizens?”
or
“Eric Kirk, will you take on a pro bono case where the client experienced damages and injuries from a local government administration?”
Or, or, or cases where local government is the perpetrating abuser that causes damages and injuries… there are plenty winning lawsuits, but local lawyers won’t take these lawsuits against local government… but flags…okay… priorities are public pandering…got it…not individuals damaged or injured…
Just curious as to which cases attorneys are “not allowed” to take on as pro bono…
…like why would government not want everyone and anyone for whatever legal case… to have or be allowed pro bono opportunity???????🤷♂️
EK has a link to all legal cases that allow for pro bono… It would be straight-up humane outreach by EK to offer pro bono service to locals, post on his blog his contact information and which case types are pro bono allowed.
Upstanding attorneys advertise their pro bono services to represent individuals who’d like to file suit against government administration, agencies… for damaging and injuring them…because the public policy allows for manipulations and injurious activities any citizen can be subjected to.
January 22, 2024 at 11:41 am
Eric Kirk
Why doesn’t 4 USC 7 control?
Two reasons. One, the courts have held (and the American Legion has conceded) that, as worded, it is merely advisory. The reasoning in the case law is different from my argument somewhat, because the courts follow a strict rule that if you can base a decision on something other than a Constitutional ruling, you do so for legally ecological reasons.
But had the issue made it to a Constitutional consideration, it would have been excluded by the 10th Amendment, which states that all power not specifically granted to the federal government via the Constitution shall be reserved to the states. Nowhere in Articles 1, 2, or 3 is any branch of government given the power to dictate to states (or state subparts) how flags should be displayed on a pole.
The A.L. has stated its intention to rewrite the law to make it mandatory, but they still can’t get around the 10th Amendment.
January 22, 2024 at 11:51 am
Eric Kirk
I didn’t (& don’t) support this measure because who are we (well Arcata) in this largely white rural & privileged community to place the U.S. glad below the world when others, especially African Americans & especially in the South, depended on the stars & stripes to have emancipated them from the Confederacy.
I supported the measure, and still do, but I had misgivings because I think it expends a lot of political capital in trying to explain something which is counter-intuitive against some very strong emotional reactions. I wonder if the benefit of the measure outweighs the division and acrimony it generates.
However, philosophically I support it. Again, it’s not denigrating the flag. As Dave M. says, “The US may be the greatest country on the Earth, but that’s the point – it’s on the Earth.” It says that nationalism needs to be framed in the recognition that we are part of a global society.
As for the flag flying with the Union soldiers during the Civil War, that’s a mixed bag for me. It also flew on the slave ships. And with the massacres of Native peoples. Over the Japanese-American concentration camps during the war. On the planes that bombed Hiroshima and Dresden. On various interventions in third world countries. This isn’t the fault of the flag or what it represents in values and principles. But it flies over good and bad.
January 24, 2024 at 10:27 am
Anonymous
The flags looked different back then.