A Question of Precedence 

In the November 2022 election, voters in Arcata faced a seemingly simple question: Should the Earth flag fly at the top of city-owned flagpoles?

"It's time to recognize the primacy of the Earth over nations and states when we fly their symbols on our town square," Measure M's ballot text stated in part. "We cannot have a healthy nation without a healthy Earth. It is time to 'Put the Earth on Top.'"

In the end, the answer was yes, with the citizen-initiated ballot measure passing by a vote of 3,051 to 2,781, with around 52 percent in favor.

So, for the last year, the "Blue Marble'' image of the Earth photographed from the Apollo 17 mission in 1972 has flown above the United States and California flags on city property, after the Arcata City Council voted unanimously to certify the results a month after the election. But in making that decision during a closed session, the council also directed the city attorney to preemptively seek a "judicial resolution" on whether the flag's placement conflicts with state or federal law in an attempt to avoid potentially costly legal challenges.

Now the future of the Earth flag's position is in the hands of Humboldt County Superior Court Judge Timothy Canning, who is tasked with navigating the unprecedented legal and constitutional questions raised by Measure M.

The initiative is believed to be the only one of its kind in the nation, not only in dispensing with the traditional protocol of flying the American flag above all others but in enacting a local law as a form of political expression. But it also leaves Arcata — a general law city that's required to adhere to California law — caught between state statutes that dictate the arrangement of how flags "shall" be displayed and those obligating the city to implement voter-approved initiatives.

On Dec. 8, the city of Arcata and Measure M proponents filed briefs with the Humboldt County Superior Court outlining their views on the matter after both sides agreed there were no factual issues in dispute but a question of what takes precedence, the right of citizens to voice their opinion via the initiative process or the city's obligation to follow state law, and which one.

A complicating factor is there doesn't appear to be any case law that directly addresses the issue now before the court.

Tracy Weston, a public interest attorney and law professor who founded the nonprofit, nonpartisan Center for Governmental Studies, previously told the Journal the legal questions raised by the measure are potentially complex.

On the one side there is what he described as the "reasonably simple" concept of a "clash between state law and local law" in which cases, he noted, generally "state law wins."

That's the main stance taken in the city's filings, which asks the court to find that sections of state's Military and Veterans code — which includes the provision: "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" — prevent the city from following through with the provisions of Measure M and the initiative should be declared invalid.

"The court should issue a declaration that the city of Arcata has a duty as a general law city to follow the strictures of the California Military and Veterans Code, and that Measure M violates California Military and Veterans Code section 617 and cannot be implemented," the city's motion states.

On the other side, Weston stated, there's the potential for making a First Amendment argument in support of upholding the measure, pointing to the controversial U.S. Supreme Court decision in 1989 that found that burning an American flag in protest is protected free speech as a "symbolic gesture and symbolic gestures are also covered, protected, by the First Amendment."

"Does a group of citizens collectively have a free speech right to require their government to put up the Earth flag on top of the U.S. flag?" Weston asked. "It's a tough argument to make, but they might make it. ... It might be a better route than trying to argue that the state can't preempt a local Arcata decision."

He noted that "it would be a new issue and I don't know of any law on that yet."

Free speech rights guaranteed in both the U.S. and California constitutions are among the arguments presented by Measure M proponents, who are being represented pro bono by local attorney Eric Kirk.

"The positioning of the flag symbolically expresses the notion that the United States is part of the Earth, and accountable to it," the plaintiffs' motion states. "Any statute which would deny the voters that right of expression is unconstitutional."

The proponents also maintain 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," and questions whether the state Military and Veterans Code is enforceable.

"Measure M should be upheld because initiative power must be liberally construed to promote the democratic process; all reasonable doubts must be in favor of its exercise; a passed ballot measure is presumed valid; mere doubts to validity are insufficient; and such measures must be upheld unless their unconstitutionality clearly, positively and unmistakable appears," proponents' brief states.

The city, however, along with maintaining the position that Arcata is obligated as a general law city to follow state law, disputes several of the proponents' arguments in its filing, stating that proponents failed to "elucidate why" the First Amendment and several sections of the California Constitution cited in their motion would require the city to enact Measure M and "contravene state statute."

While the City of Arcata v. Citizens in Support of Measure M, et al. case is framed as a conflict, City Manager Karen Diemer said that's necessary for the court to consider the issue, stating she would describe the process to date as "more than amicable" with both sides looking to resolve the issue in an inexpensive and expedited way.

"The council had to weigh the will of the voters and a strong desire to honor the ballot initiative process with the current laws," she said in an email to the Journal. "Through that lens, they selected to follow the will of the voters by reordering the flags the day after the election was certified while simultaneously asking the court to weigh in on the legal conflict that was before them."

Canning is expected to render a decision based on the motions before him as early as next month.

Kimberly Wear (she/her) is the Journal's digital editor. Reach her at (707) 442-1300, extension 323, or kim@ northcoastjournal.com.