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)

Lost Coast Outpost

Mad River Union

So we wait for a decision.