City of Arcata issued a lengthy press release just now. If you are confused, keep reading. Towards the end of the three page press release, the content matches the headline

City of Arcata issued a lengthy press release just now. If you are confused, keep reading. Towards the very end of the three page press release, the content finally matches the headline.

City of Arcata press release:

Through a unanimous vote (with one member absent), the Arcata City Council directed staff to adhere to the Superior Court of California’s ruling that flying the Earth Flag at the top of City flag poles is against the state law and to reorder the flags to place the national flag at the top, followed by the state flag. 

On Nov. 8, 2022 by a vote of 3,051 to 2,781, the voters of Arcata passed a ballot measure that read: It shall be the official policy and practice of the City of Arcata 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, and any other flags that the city may choose to display.  

On Dec. 14, 2022 the Council certified the election results and unanimously passed the following motion: “As decided by the will of the people, the City Council will uphold Measure M and concurrently seek judicial resolution to determine if the Measure violates State or Federal Law.” 

To place the motion in context then-Mayor Schaefer shared: We wanted to honor the important ballot initiative process and the will of our voters. To that end, staff rearranged the flags this morning.  Simultaneously we recognized that the vote had a very small margin, many people including the City Attorney’s independent analysis concluded that the measure was incongruent with State Code. Many residents have expressed their concerns over the potential cost to defend the measure from an outside lawsuit.  To address these concerns the City Council has initiated a court action to efficiently review the ballot initiative and to assist the City in resolving the questions of its legality in relation to state flag code.  

The council chose to seek a judicial ruling for several reasons that include:  1. The City Attorney’s Impartial Analysis which outlined in part: The City of Arcata is a “general law” city, organized as provided in the California Government Code. As a general law city, Arcata is subject to all constraints imposed by California law. At least two California statutes govern the manner in which a general law city is required to fly multiple flags when a city chooses to fly them together on a single flagpole. These laws require a general law city to always fly the United States flag at the top of the flagpole with no other flag above it. 2. The City had received inquiries from local and out of area individuals and groups who indicated they were looking into legal remedies to “overturn” the City’s ballot measure. To attempt to keep the proceedings amicable and focused on the analysis of the law the Council took the initiative to minimize costs and maintain a straightforward review of the law.  The court process was by design cordial, but the courts may only take up a matter that is in conflict. There must be 2 sides for the court to consider. Both “sides” agreed to seek the most efficient process for the court’s consideration whereby each “side” presented briefings for the court to consider. As stated in the court documents there were no pertinent facts in dispute. This was simply a request to the courts to offer clarity as to whether the City is prohibited from or allowed/obligated to comply with Measure M based on the fact of law. On April 3, the Superior Court of California issued its decision in the case the City filed regarding Measure M, the Arcata Ballot Initiative that directed the City to fly the earth flag at the top of each City owned pole. The court determined that Measure M is not enforceable because it conflicts with state law.  In reaching this conclusion, the court considered three questions: 1. Whether state law requires general law cities like Arcata to fly the national flag above all other flags, when flown on a single flag pole.   2. Whether voters in a general law city like Arcata can exempt the City from complying with mandatory state law; and  3. Whether Measure M is an expression of the collective speech of the City’s voters such that they have a free speech right which cannot be abridged by state law.    In answering the first question, the court found that Government Code section 436 mandates that no other flag can be flown higher than the national flag on a City-owned flagpole, if only one flagpole is used.  The court determined that the phrase “position of first honor” means at the highest location on the flagpole. Second, the court found that the initiative power did not empower the voters of Arcata to exempt the City from mandatory state law. While in many instances the voters of the City can amend, revoke or enact municipal ordinances, they cannot alter state law, nor can they excuse the City from complying with state law.  Third, the court found that because Measure M compelled the City to “speak” by displaying the Earth Flag on the City’s flag poles, it constitutes government speech which is outside the purview of the First Amendment. The court noted that the City speaking is different from the rights of individuals to speak.    After considering each of the above questions, the court issued the following orders: “The City has a duty as a general law city to comply with Government Code section 436 and Military and Veterans Code section 617, by flying the national flag at the top of its flag poles, followed by the state flag;” “Measure M violates Government Code section 436 and Military and Veterans Code section 617 and hence is not enforceable ...” 

Based on this decision, and as the court expressly notes, state law requires the City to remove the Earth Flag from the top of its flag poles and place the national flag at the top, followed by the state flag. Measure M is not enforceable because it is contrary to state law and the City will be out of compliance with state law if it continues to fly the Earth Flag at the top of its flag poles. 

The City of Arcata thanks all the interested parties for their patience and contributions on this matter. For questions, please contact the City Managers Office at (707) 822-5953.