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Old 06-19-2009, 06:56 PM   #1
Ought Six
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Arrow Judge tosses laws restricting recruiters in northern California cities

Judge tosses laws restricting recruiters


Matthew B. Stannard
The San Francisco Chronicle
Friday, June 19, 2009


Without fanfare, a federal judge in Oakland on Thursday threw out voter-approved laws in two Northern California cities barring military recruiters from contacting minors.

U.S. District Judge Saundra Brown Armstrong ruled that laws passed in the Humboldt County cities of Arcata and Eureka in November were unconstitutional and invalid.

The finding was not unexpected by proponents of the laws, which passed with 73 percent of the vote in Arcata and 57 percent in Eureka. The federal government quickly sued to overturn the laws, which have been stayed ever since.

But Dave Meserve, the former Arcata councilman behind the laws, said he was disappointed that the judge ruled without hearing arguments on the case. Armstrong ruled on filed pleadings after a hearing scheduled this month was canceled.

"She doesn't respond to any of our arguments in any way," he said. "The order reads like a restatement of the government's case."

Department of Justice spokesman Charles Miller said "We are pleased with the court's ruling."

Eileen Lainez, a spokeswoman for the Office of the Secretary of Defense, declined tocomment on the suit but said, "It is important for recruiters to provide information to youth and their parents."

The Arcata and Eureka laws join a long list of failed attempts to restrict military recruiting.

Opponents of recruiting have tried to keep recruiters off college campuses nationwide. Berkeley issued and then rescinded a letter calling Marine recruiters "unwelcome intruders."

And the San Francisco school board in 2006 killed the local Junior Reserve Officers' Training Corps, which some members saw as a recruiting tool, launching a three-year battle that ended last month with JROTC back in place.

The Arcata and Eureka laws represented a new tactic that experts said appeared to have been the first of its kind in America: a counter-recruitment law passed not by a handful of elected activists, but by a plurality of voters.

Many voters in Arcata and Eureka who supported the measures saw the laws not as anti-military, but as an expression of a community's right to set its own rules - particularly relating to children.

Opponents said the laws were unpatriotic, pointlessly quixotic, and imposed a government regulation on a domain that would be better handled by parents.

The laws made it illegal to contact anyone under the age of 18 to recruit that person into the military or promote future enlistment. Minors could still initiate contact with recruiters if they chose.

"The judge said that the question of military recruitment is a subject which must be regulated by the federal government and may not be regulated by states and localities," said Stanford Law School Senior Lecturer Allen Weiner, who read the opinion but did not take part in the case.

Under the supremacy clause of the U.S. Constitution, federal laws trump state laws on issues the federal government is responsible for, like foreign affairs and national defense.

The cities tried to head off that finding by arguing that the United States is party to international treaties prohibiting the recruiting of children under 17. The treaties, the cities argue, hold equal standing to the supremacy clause, so recruitment aimed at children under 17 - such as posters or recruiter calls - is unconstitutional.

Armstrong did not address that argument. Brad Yamauchi, a San Francisco attorney who represented Arcata pro bono, said the reason she didn't may have been because the treaty addresses recruitment of children under age 17, but the laws in Arcata and Eureka barred recruiting anybody under 18.

Recruits must be 18 to enlist in the U.S. military, or 17 with parental permission, although contact with recruiters may begin earlier.

If the cities choose to appeal or draft a new law, Yamauchi said, they might focus on the 17-and-under crowd. But they would still need to solve other constitutional concerns raised by Armstrong - a task he said will be difficult at best.

But Yamauchi said an appeal might still be worth pursuing.

"Everything has to be done to put this pressure (on policymakers), and having an appeal could be part of that pressure," he said. Arcata City Attorney Nancy Diamond said the city has made no decision on whether to pursue an appeal.

But Meserve said that no matter what, the effort was worthwhile.

"Whatever the outcome, I think it's been very positive," he said. "It has opened people's eyes across the country to the fact that recruiters target kids."
_____

E-mail Matthew B. Stannard at mstannard@sfchronicle.com.

This article appeared on page B - 1 of the San Francisco Chronicle
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