The Earth flag appears set to maintain its current third-rung position on municipal flagpoles in Arcata after the First District Court of Appeal recently upheld a local judge’s decision finding that a citizen-led initiative requiring the city to place the so-called “Blue Marble” image in the top spot violated state law mandating the U.S. flag fly above all others.
In the June 27 ruling, the three-member panel of appellate court justices said the question before them was “whether the city is authorized to implement Measure M, an ordinance directing government action that, if performed, would contravene state law.”
The answer, they determined, was no, noting that the California legislature had “adopted a comprehensive regulatory scheme governing the display of the national flag that leaves minimal room for local action” — including a code section specifically requiring that the United States flag “occupy the ‘position of first honor.'”
“As such, the ordinance was preempted by state statute,” the decision states.
Passed in November of 2022 with 52 percent of the vote, Measure M is believed to be the first initiative of its kind in the nation, not only in upending traditional protocols by requiring the city to “fly the Earth Flag at the top of all city-owned flagpoles, above the flag of the United States of America and the California flag,” but by enacting a local law as an expression of community “values and priorities,” in this instance, that the Earth’s well-being needs to be prioritized.
Dave Meserve, a former councilmember and longtime local activist who spearheaded the campaign, told the Journal this week that he was “disappointed that the court ruled against the Earth Flag initiative,” but said proponents have no plans to petition the state Supreme Court to intervene, “mainly because of what has happened politically in the last year.”
“We believe in the symbolism of the Earth Flag, we believe that it’s logical to fly at the top, we believe that we can’t have a healthy country unless we have a healthy Earth and we believe there is too much nationalism in the world and that having the Earth flag at the top is a symbol of all that. … I just don’t think people are going to see it as a priority when people are being dragged off the street and shipped off to concentration camps, and when the judicial system is being told it’s somehow subservient to the executive branch,” he said.
“So, it’s not something I think people are going to see as a priority, and I really don’t see it as a priority at this time,” Meserve continued. “I think we need to reclaim our democracy.”
In a July 3 email to the Journal, Arcata City Manager Merrit Perry, who stepped into the role after the appeal was underway, said council members hadn’t communicated a “strong” opinion to him about the case, “other than the desire to support the will of the voters by implementing Measure M but also wanting to avoid violating state law.”
“I don’t believe this is a case that the council was that invested in the outcome but more just one to move past it to avoid incurring additional time and expenditures,” he said.
As a general law, the city is bound to adhere to California law. The passage of Measure M left Arcata in a precarious spot, torn between state laws that direct the city to implement voter-approved initiatives and those that require the United States flag to be flown at the top of its flagpoles.
In a December of 2022 closed session, the city council voted to implement Measure M “to honor the important ballot initiative process and the will of our voters,” according to a press release at the time, but the decision was made with the provision that the city would seek a “judicial resolution” on whether initiative conflicted with state law.
As a result, the Earth Flag spent more than a year in the unprecedented position as the legal issues played out in Humboldt County Superior Court. Following Judge Timothy Canning’s April of 2024 ruling that voters “do not have the power to exempt” the city from state laws, the council directed staff to lower the flag back to its current position.
“There may be very strong policy reason to fly the Earth flag above the national flag, as Measure M sets forth, but these policy reasons are insufficient to excuse the city from complying with mandatory state law on flying the national and state flags,” Canning wrote. “The court finds and declares that the measure approved by a majority of voters in the city, which requires the city to fly the Earth flag above the national flag on city-owned flag poles on city property, directly conflicts with mandatory state law, and is therefore not enforceable.”
Meserve and other proponents, known collectively in court documents as Citizens in Support of Measure M, then appealed, arguing in filings by attorney Eric Kirk, who represented them pro bono, that “the measure and the physical acts it mandates are expressions of protected speech,” and the citizen initiative process enshrined in the California Constitution takes precedence as long as a local ballot measure is not “frustrating a compelling state interest.”
The appellate court panel disagreed and affirmed Canning’s take on the matter, including his assessment that because the initiative compelled the city to “speak” through the Earth flag’s position, it constituted government speech, which is not protected by the First Amendment, as municipalities don’t have the same rights as individuals.
“By requiring that the Earth flag be flown at the top of all city-owned flagpoles, the ordinance straightforwardly aims to control government speech,” the First District Court decision states. “And while the goal of the ordinance may have been to cause the government to speak for and convey the values of the city’s residents, private expression is not implicated because the flags affected by the Ordinance are on public property. A First Amendment analysis does not apply.”
On the issue of ballot measure being brought forward through the citizen initiative process, the court wrote that “while we recognize the unique significance of the voter initiative power, we disagree it enables voters to enact an ordinance directly in conflict with” state law, in this case California Government code outlying flag display protocols.
Meserve said he still takes a different view.
“I think that, from their arguments, they once again, like the lower court, missed the point that an initiative is a power reserved by the people and the power of the initiative is not the same as the city council passing an ordinance and can have superiority over state law as long as it’s not dangerous to people,” Meserve said, using as an analogy a measure exempting people from using seat belts. “But when you’re dealing with something that is symbolic like a flag, we believe that the initiative ought to have precedence over the state law about flags. The court disagreed with us. Their arguments are cogent, they are just not really addressing the power of the initiative.”
In addition to affirming Canning’s ruling, the appellate court also awarded the city direct court costs associated with the appeal, which Perry said amounts to about $2,000 while attorney’s fees, which are not included in the award, have totaled approximately $76,000.
“The council will discuss this in the near future and … decide whether or not they want to recover any fees and who the appropriate party would be,” he said.
While Meserve said there are far more pressing issues taking precedence over an appeal right now, he doesn’t rule out pursuing the issue “from a slightly different angle” down the road.
“I still strongly believe that it would be great to have the Earth flag on top,” he said.
Kimberly Wear is the Journal’s assistant editor. Reach her at (707) 442-1400 or kim@northcoastjournal.com.
This article appears in The Disappearing Registrants.
