California cities ban military recruiters initiating contact with youth

Humboldt cities take on military recruiting — and U.S.

Published Sunday, Apr. 19, 2009

ARCATA – David was sitting in a coffee shop when he first got the idea to take on Goliath.

The “David” in this story has a last name of Meserve. The “Goliath” is less metaphorically known as the United States government.

And the tale revolves around a first-of-its-kind effort by two small Humboldt County cities to prevent military recruiters from trolling for prospects among the towns’ residents under age 18.

Virtually unnoticed by the rest of the world, voters in Eureka (population 26,000) and Arcata (population 18,000) last November approved ballot measures that were collectively referred to as “the Youth Protection Act.”

Passed by convincing margins (73 percent in Arcata, 57 percent in Eureka), the act prohibits military recruiters from initiating contact with anyone under the age of 18 within the cities’ limits. Violations can result in a fine of $100 for both the recruiters and their commanding officers.

“We’re not anti-military,” said David Meserve, a 59-year-old former Arcata city councilman. “But we think that we have the right to protect our children from being unduly influenced.”

If the rest of the world paid little notice to the votes, however, the federal government paid acute attention. In December, the Justice Department notified the two cities they were being sued. (The cities agreed not to try to enforce the ordinances until the legal fight plays out.)

“The gist of the government position is our constitutional system assigns the responsibility for military functions, including the recruitment of qualified persons to join the military, solely to the federal government,” Justice Department spokesman Charles Miller said in an e-mail to The Bee.

“Individual cities do not have the power to overrule the federal government on this issue.”

Recruiter’s pitch hit nerve

Meserve, who designs and builds environmentally friendly custom homes when not leading initiative drives, said the idea for the measures came to him a couple of years ago while in a coffee shop, eavesdropping on a National Guard recruiter making a pitch to three young girls.

Meserve said he listened as the recruiter told the girls that as National Guard members, they had only a small chance of being sent to Iraq.

“I just about lost it at that point,” he said. “It brought home to me the fact that these recruiters were targeting young people who didn’t have fully developed thought patterns on things like this, and I thought we should do something about it as a community.”

Meserve said he began hearing stories from area residents of recruiters talking to kids at the local skateboard parks, or at sports events, or repeatedly calling a prospective recruit on his or her cell phone.

“In some cases, it was pretty intense,” he said. “It was getting a bit out of hand.”

So last spring, Meserve and others gathered enough signatures to put the issue before voters in both cities in November. There was no organized opposition in either town.

Although educational institutions such as Yale Law School have tried and failed to ban military recruiters, and the Berkeley City Council “invited” recruiters to leave town last year, the Arcata and Eureka ordinances appear to be the first of their kind.

“To our knowledge, the attempt by these cities to second-guess the congressionally established (recruitment) policy is unprecedented,” said the Justice Department’s Miller.

Reaching youths early

Just how big a perceived problem the two cities are trying to solve is hard to measure. There’s no question that military recruiting is big business for the Department of Defense.

According to a recent Rand Corp. report, the department spent more than $600 million in 2007 on recruitment advertising.

There’s also little doubt that traditional recruitment procedures include efforts to “inform” youths under the age of 18 about military enlistment.

A 2007 Defense Department study reported the percentage of youths who would consider joining the military dropped from more than 25 percent at age 16 to less than 15 percent at age 21.

“If you wait until they’re (high school) seniors,” instructs the U.S. Army’s School Recruiting Program Handbook, “it’s probably too late.”

But recruiters counter that no one under the age of 18 can enlist without parental or guardian consent. And given the sorry state of the economy over the past 15 months, military officials say, recruiting has not been particularly difficult.

In testimony earlier this year before congressional committees, recruiting program leaders said Army, Marine and National Guard quotas all had already been met through 2011.

“We obviously are going to have a few more people because of the economy,” said Cathy Pauley, a public affairs specialist for the Army recruiting battalion headquartered in Sacramento, “but most of our success is because we have good relations with the communities we’re in.”

Pauley’s battalion covers a 112,000-square-mile chunk of Central and Northern California, southern Oregon and northwestern Nevada – including Arcata and Eureka.

The government’s legal challenge to the ordinances is rooted in constitutional grounds. In the suit, filed in federal court in San Francisco, government attorneys argue that the supremacy clause in Article VI of the U.S. Constitution means federal law trumps local or state law – and federal law says Congress has the power to “raise and support” armed forces.

It’s a position with which law professor David Levine finds little room to argue.

“I don’t see how the cities defend it,” said Levine, who teaches at the University of California Hastings College of the Law. “Politically, I can see where they have to make the effort, but boy, I wouldn’t bet the farm.”

Levine said the cities might argue they have parens patriae (“father of the people”) authority to protect children from risky situations, similar to the authority cited to remove children from abusive homes.

“But,” he added, “it just seems to me a judge is going to say to the cities ‘nice idea, but sorry.’ ”

Cities getting free legal help

Both cities are trying to minimize their legal costs in the case, the first hearing of which is tentatively scheduled for June. In addition to the cities’ regular attorneys, lawyers from two San Francisco law firms are offering their services for free.

“My firm is involved because this is a constitutional-rights issue,” said Brad Yamauchi, a partner with Minami Lew & Tamaki. “The cities have the right to protect their children.”

A casual survey of the towns’ populace last week turned up little apprehension that taxpayers might have to foot the bills for ordinances that never went into effect.

“It’s hard to say that each little town can decide what we’re going to do in each case,” said Selena Rowan, a 22-year-old herbalist who was making her way across Arcata’s historic Central Plaza. “But there has to be a point where we do have a say.”

Besides, said Martin Swett, a 44-year-old mortgage broker who was loading art and photo equipment into a van, it might set a precedent either way.

“If we lose, then other municipalities might not take it on, and it will save them money,” he said. “And if we win, maybe the idea will spread.”

Call Steve Wiegand, Bee Capitol Bureau, (916) 321-1076.


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