Judge Takes Earth Flag Case Under Submission


Since Dec. 16, 2022, the Earth flag has flown atop Arcata's flagpoles. - PHOTO BY MARK LARSON
  • Photo by Mark Larson
  • Since Dec. 16, 2022, the Earth flag has flown atop Arcata's flagpoles.
The future of the Earth flag’s spot on city-owned flagpoles in Arcata is now in the hands of a Humboldt County Superior Court judge.

After hearing brief final arguments today, Judge Timothy Canning said he would take the matter under submission before rendering a ruling based on those comments and a series of briefs submitted by both sides of the case raising unprecedented legal and constitutional questions.

Canning noted he had 90 days to issue his decision but would “try to get it out sooner than that.”

The “Blue Marble” image of the Earth has been flying in the top position on three flag poles since Dec. 16, 2022, the morning after the Arcata City Council decided in closed session to uphold a voter-approved initiative directing the placement, with the qualification that the city would also seek a "judicial resolution" on whether Measure M conflicts with state or federal law.

The initiative is believed to be the only of its kind in the United States, not only in upsetting the traditional protocol of flying the American flag above all others, but by enacting a local law as a symbolic gesture, in this case expressing an opinion of Arcatans that the well-being of the Earth needs to be prioritized.

Complicating matters, there simply appears to be no comparable case law addressing the issues now before the court.

In previous court filings and at today’s hearing, attorney Angela Schrimp de la Vergne outlined the city’s main contention that complying with Measure M “violates two state laws,” which — as a general law city — “Arcata is bound” to follow.

Those are the California Government code on flag display, which states, in part: "At all times the National Flag shall be placed in the position of first honor." The other is a section of California 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."

Proponents of Measure M, including former City Councilmember Dave Meserve, take a different view, one of a case rooted in the rights of freedom of speech guaranteed in the U.S. Constitution and the California Constitution, as well as the power of the initiative process granted to state residents by the latter.

In court, their attorney Eric Kirk noted those points have already been covered extensively in multiple filings before the judge while outlining for Canning aspects that he described as “context that the city is missing.”

Among those, he argued, was that there is a difference between a ballot measure brought to a vote through the citizen initiative process and that of a municipal initiated resolution, such as one brought forward by a city council.

The former, Kirk says, brings with it a “benefit of doubt and presumption of validity.”

“There’s nothing really to override the will of the voters in this case,” he said.

Kirk also brought up the wording of “position of first honor” in California Government code on flag display, contending that the “fact of the matter is we don’t know what that means … maybe it means something other than the physical position of the flag,” noting proponents have always maintained that Measure M was in no way intended to “dishonor the American flag in any way.”

In rebuttal, Schrimp de la Vergne told Canning that the city disagrees with the proponents' contention that the rights of voters enshrined in the initiative process is greater than that of a municipal government body, such as a city council.

In the end, she said, the city is simply obligated to follow state law.

“The city doesn't have any way of putting the Earth flag at the top of city flag poles and be in compliance with state law at the same time,” Schrimp de la Vergne said. The only question Canning raised was directed at Kirk, asking that “if it’s correct that the voters in Arcata can exempt the city from complying with state law” in the Earth flag situation, is there any reason why the voters couldn’t exempt the city from other requirements, giving as an example open meeting laws?

Kirk replied there is nothing about Measure M that could cause chaos or overrides state interests that require conformity from jurisdiction to jurisdiction, stating that it’s “not going to create problems for Eureka that Arcata is doing this.”

Canning’s decision is expected by mid-April.

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