Noteworthy Cases

The San Diego Union-Tribune

Page B-3:1,7; B-1:2,3,4,5; B-12:6 )

John Gaines

WWII veterans repel attackers in flagpole flap

John Gaines
30-Jul-1994 Saturday

The great flagpole dispute in Solana Beach is over. It ended abruptly this week, without a trial. As theater, that trial could have been compelling stuff. From the standpoint of public policy, far better the matter ended as it did.

The flagpole case involved two distinguished World War II veterans, Palmer Roberts and Lincoln Spaulding, and poles they'd erected in San Elijo Hills, a handsome subdivision on the eastern side of the city.

Roberts had flown the American flag from his 15-foot backyard pole for nearly two decades, or as long as he'd owned the home. From his larger, more ornate front-yard pole, Spaulding flew the U.S. and French flags, the latter in honor of his late wife, who helped smuggle Jews into Spain and away from the Nazis.

The neighborhood association contended that the poles violated its protective covenants, which prohibit poles, masts and antennas. Two neighborhood votes failed to overturn the regulation, so the association asked that the poles come down. The veterans refused.

The story made the National Enquirer. This wasn't your average neighborhood spat.

This week, the veterans won. Superior Court Judge Thomas R. Murphy agreed with a defense motion and threw the case out of court, where it never belonged anyway.

The California Legislature requires that certain community associations try to resolve disputes through mediation or arbitration before going to trial.

The law makes a lot of sense. The financial and emotional costs of a trial can be devastating, and the justice system already has enough on its plate without being drawn unnecessarily into frays over neighborhood aesthetics.

In this case, both sides said they regretted that it had gone this far, but attempts to seek resolution before trial broke down. Murphy said the state requirement applied here, adding that the homeowners association hadn't met its obligation to try to fulfill it.

Moreover, Tom Leary, the Old Town attorney who represented the veterans, pointed out that these weren't the only poles in San Elijo Hills. There were nine basketball hoops, three bird feeders on poles, two clotheslines, and so on. Roberts' flagpole had been standing longer than any of them.

Murphy agreed that the enforcement was unfairly selective.

As usually happens, the case left plenty of smaller but engaging points to be mulled on another day.

Leary, for instance, had argued that only the president of the United States can dictate rules regarding the flying of the flag.

What about flying it at half-staff? If the veterans were required to fly their flags from a wall mount, as do many of their San Elijo neighbors, how would they convey the appropriate respects after a death or tragedy?

And Leary clung firmly to the side of patriotism. Roberts, a Navy captain who planned the artificial harbor used in the Normandy invasion, was served with the suit on D-Day's 50th anniversary (the timing was said to be accidental). In reply, Leary urged the court to "protect these elderly veterans from lowering the American flag in disgrace on American soil." His argument is dated July 4 -- Independence Day.

The neighborhood association already has been bashed plenty for its part in this lawsuit. Let it be enough to celebrate the fact that individual rights survived another test. The evidence is flying proudly in San Elijo today.

Copyright Union-Tribune Publishing Co.

Controversy gets run up the flagpole (First Article)