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Cal Poly Humboldt Political Science Department Chair Joice Chang explained that a general law city, like a charter city, has “the authority” to act locally, but di er in the latitudes each has to “govern municipal a airs.”

“A general law city is bound by the ‘general law’ of the state of California, which includes the California Constitution, state statutes, state regulations and relevant judicial decisions, whereas a charter city adopts a ‘charter’ (which must be approved by voters) that outlines how the city will be organized,” she wrote in an email to the Journal. “In addition, a charter city has authority to pass laws regarding municipal a airs that can be di erent from state statutes, so long as they are consistent with U.S. and California Constitutions.”

A general law city, however, is bound by state statutes on numerous levels from how elections are conducted and qualifications for serving on the city council to using a city manager form of government as opposed to a “strong mayor” form, which charter cities can adopt.

That’s where the two state statutes Diamond cited in her impartial analysis on Measure M come into play.

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.” unless the relevant state law expressly prohibits a local ordinance, courts will presume that the latter is not preempted by the state law. It is important to remember that there is no easy answer to when laws are [in] conflict and when preemption should occur at any level.”

In contrast, the U.S. Flag code uses more demure language.

HICAP is the Health Insurance Counseling and Advocacy Program, a program of the Area One

HICAP

“The federal law uses ‘should’ while the state laws use ‘shall’ when referring to the position of the U.S. flag on the flag pole,” Chang said. “This may lead to some more complications. On the one hand, one could argue that the Supremacy Clause of the U.S. Constitution (Article VI, Paragraph 2) could mean that the federal law preempts the state laws. On the other hand, preemption happens when the federal and state laws clearly conflict with each other. Here, the use of ‘should’ versus ‘shall’ may not be enough to argue that there is a conflict.

“In addition, when it is not clear that a conflict exists, courts tend to prefer interpretation that avoid preempting state laws,” Chang continued. “Similarly, state laws will usually preempt local laws that are deemed to be [in] conflict. However,

Meserve acknowledged Arcata’s status as a general law city aspect could present a sticking point, adding he had tried to explore the idea of moving Arcata toward becoming a charter law city when he was on the council to allow more flexibility, but said it is a complex and expensive process.

In the end, he said, proponents are happy to see the Earth flag now flying at the top of city flagpoles.

“I think it is conveying the idea that you can only have a healthy nation if you have a healthy Earth,” Meserve said.

As for the city moving the issue into the court realm, he said “in an ideal world, in my point of view, I would just like to see the Earth flag continuing to wave at the top.”

“But if this is the process the council thinks is necessary, let’s do it.” ●

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