Page 1
C.A. Says State Law on Flag Display Cannot Be Overridden by Voter-Approved Initiative
Opinion Says City Measure Requiring Flying ‘Earth’ Pennant Above All Others Is Preempted by State Law Mandating Priority for ‘Old Glory’
By a MetNews Staff Writer
Div. One of the First District Court of Appeal has held that voters cannot override a state law providing that the U.S. flag must be “placed in the position of first honor” on all public poles by passing a city initiative mandating that an “Earth” pennant be flown above all others on municipal sites, finding that the measure is preempted.
In an unpublished opinion, filed Friday and authored by Justice Charles A. Smiley, the court also rejected a contention that the First Amendment protects the voters’ right to use the initiative power to express the “political priorities of a community,” saying the matter involves the attempt to control government speech rather than the state seeking to regulate its citizens’ expressions.
At issue is Measure M, passed by voters in the City of Arcata, in Humboldt County, on Nov. 8, 2022—with 3.051 voting in favor of the proposal and 2,781 rejecting it—requiring the municipality 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.”
After adopting the measure, as mandated by the Elections Code, the city filed an action in Superior Court seeking a declaration that the initiative violated Government Code §436, which provides:
“Where the National and State Flags are used, they shall be of the same size. If only one flagpole is used, the National Flag shall be above the State Flag and the State Flag shall be hung in such manner as not to interfere with any part of the National Flag. At all times the National Flag shall be placed in the position of first honor.”
A group calling itself “Citizens in Support of Measure M” filed an answer and argued that the initiative should be upheld.
Humboldt Superior Court Judge Timothy Canning granted the city’s motion for judgment on the pleadings, finding that state law required the city to fly the National flag at the top of its poles and that a voter initiative cannot exempt the city from complying with the section. The citizens’ group appealed the decision.
Friday’s opinion, joined in by Presiding Justice James M. Humes Justice Monique Langhorne Wilson, affirms the judgment.
State Constitution
Looking to the California Constitution for guidance, Smiley pointed out that Article XI specifies:
“A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”
The jurist cited cases establishing that this provision creates a state law supremacy clause such that provisions enacted by the California Legislature take precedence over nearly all ordinances adopted by local entities, including those approved through the voter initiative process.
Applying those principles here, he wrote:
“[W]e conclude that state law fully occupies the area of law pertaining to the flying of the National Flag….[T]he Legislature established a statutory scheme directing where, when, and how various flags including the national, state, and city and county flags, must be displayed in California.”
Acknowledging that the phrase “position of first honor” is not defined, he looked to the surrounding text for guidance and opined:
“[W]e observe that section 436’s reference to the National Flag occupying a ‘position of first honor’ is preceded by the directive that where both the National Flag and State Flag are flown on one flagpole, ‘the National Flag shall be above the State Flag….’(§436, italics added.) We therefore conclude that, at the very least, to be in a ‘position of first honor’ means that where more than one flag is flown on one flagpole, the National Flag must be placed above other flags and hung in such a way that other flags do not interfere with any part of it.”
Citizens in Support of Measure M argued that preemption should not apply, saying that a specific intent on the part of the Legislature to “neutralize the reserved power” of the people to approve measures is required in order to undo the will of the voters. Rejecting this assertion, Smiley remarked that the cases cited by the group were “inapposite or too factually distinguishable to sway our analysis” and reasoned:
“While we recognize the unique significance of the voter initiative power, we disagree it enables voters to enact an ordinance directly in conflict with section 436. Whether viewed alone, or in the broader context of the statutory scheme…, the Legislature has left no room for noncompliance: Section 436 applies to the display of the National Flag and the State Flag on the same flagpole and the National Flag must occupy the position of first honor ‘[a]t all times.’ (§436, italics added.)”
No Strict Scrutiny
The citizens group asserted that the appropriate deference to the voter initiative power should mandate “strict scrutiny” or some showing that a compelling interest is frustrated by the ordinance, saying that the issue on appeal is “whether the state government can override an ordinance passed by…direct vote…on an issue of symbolism where the cultural and political priorities of a community are not in concert with a state law of a purely symbolic concern.”
Faulting the logic, Smiley commented that “Citizens never clearly pinpoint the specific content-based regulation they believe infringes their rights” and said:
“If Citizens claim the inability to control symbolic expression using City flagpoles impacts free speech rights, we must conclude that no impingement occurred. ‘The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.’…By requiring that the Earth Flag be flown at the top of all City-owned flagpoles, the Ordinance straightforwardly aims to control government speech. 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.”
Under these circumstances, he declared:
“In sum, we conclude the trial court did not err in granting the City’s motion for judgment on the pleadings. To the contrary, the Ordinance was clearly preempted by section 436 as it directly contradicted section 436’s provisions that the National Flag be flown in the “position of first honor.”
The case is City of Arcata v. Citizens in Support of Measure M, A170957.
Copyright 2025, Metropolitan News Company