Page 1
IN MY OPINION
UC Hastings Name-Change Litigation: A Year-End Report
By Kris Whitten
(The writer is Kris Whitten is a retired California deputy attorney general, and is a member of the Hastings College Conservation Committee, one of the plaintiffs in the subject litigation.)
As I reported in the Nov. 22 METNEWS, because of complaints from numerous alumni of the former UC Hastings College of the Law about the State Bar of California’s summarily changing the name of our alma mater on its public website to the law school’s new, legislatively mandated, name, UC College of the Law, San Francisco, at their January 2024 meeting the State Bar’s trustees will be considering a policy that, if implemented, will likely result in those of us who graduated from UC Hastings having that fact once again included with our other information on the State Bar’s public website.
News of this ongoing process at the State Bar came after the conclusion of law school’s unsuccessful year-long effort to have the lawsuit challenging the law school’s name change dismissed. As this paper reported on Sept. 29, “[t]he California Supreme Court has spurned a plea for review of a Court of Appeal opinion that affirms the denial of an anti-SLAPP motion filed by officials of [the former Hastings College of that Law] in an action in which plaintiffs contend that legislation changing the name of that institution . . . is unconstitutional.”
On Nov. 8, the law school’s dean, and the members of its Board of Directors, who are defendants in the lawsuit, substituted in new counsel, Willkie, Farr & Gallagher, in place of Gibson, Dunn & Crutcher.
Those defendants, and defendant State of California, have now filed demurrers to the complaint, which are set for hearing in early February 2024.
★
News from the law school: In the Fall 2023 edition of its magazine which is sent to its alumni and others, the college surprisingly writes that its new name is, “hold[ing] fast to our incredible history and renowned stature,” and that “[o]ur current success owes much to those who came before us.” UC Law San Francisco Fall 2023 magazine at 11.
On page 13 of that magazine the former UC Hastings recites that the name change “is the product of a long process that began in 2017, when Chancellor & Dean David Faigman appointed a committee that investigated the alleged actions of the founder in hiring militia to protect his property in the Eden and Round Valleys of California. Through the committee’s investigations, we learned that these militias committed atrocities against the native people there, especially members of the Yuki Tribe (also known as the Witukomno’m People.)”
But what that description fails to mention is that, at the conclusion of that “long process,” the Hastings Legacy Review Committee, the dean, and the Board of Directors decided to keep the “Hastings” name.
It was only after the New York Times published a front-page story on Oct. 28, 2021, claiming that Serranus Hastings “masterminded one set of [Indian] massacres,” and the resulting political and economic pressure from powerful alumni such as former Assembly Speaker and San Francisco Mayor Willie Brown and Joseph Cotchett, that the dean and Board of Directors quickly and summarily reversed course, requesting that Legislature change the school’s name.
★
That magazine article also fails to mention that (1) the militias that are referred to were commissioned by and operated under the authority of the state’s governor, (2) in 1860 the Legislature investigated the atrocities referred to, and that in that investigation Serranus Hastings and many others testified under oath, (3) there is no allegation or evidence that Serranus Hastings killed, or knew in advance of others’ intention to kill, any Indians, (4) Hastings himself testified that he only found out about the militia’s atrocities after the 1860 investigation had commenced, and (5) after the name change process was moving through the Legislature, a committee of the law school’s Board of Directors reviewed evidence from the 1860 investigation provided by alumni and concluded that: “there is no incontrovertible proof that Judge Hastings knew more than he acknowledged.”
As this paper’s Sept. 29 story also recounts, the current litigation challenges AB 1936, which was enacted by the Legislature and signed by the governor, and which changed the name effective January 1, 2023. That legislation was shepherded through by lobbyists, and UC Hastings alumni Sen. Thomas Umberg and former Assembly Speaker and Senate Majority Leader Robert Hertzberg.
The Court of Appeal opinion that the law school asked to be reviewed by the Supreme Court finds as fact, inter alia, that the Legislature’s 1878 “Act” that created the law school provided “[t]hat S.C. Hastings be authorized to found and establish a Law College, to be forever known and designated as ‘Hastings’ College of the Law,’” that the Act’s passage was expressly conditioned upon S.C. Hastings’s payment of $100,000 into the State Treasury, and that “S.C. Hastings accepted these terms and paid $100,000 to the State Treasury, and the College was established.” Hastings College Conservation Committee v. Faigman (2023) 92 Cal.App.5th 323, 328.
That opinion also notes that plaintiffs’ lawsuit challenging AB 1936 alleges that it violates “the contracts clauses of the federal and state constitutions or would constitute an impermissible bill of attainder.” Id. at 334.
There is no mention of the litigation, much less the Court of Appeal’s opinion, in the school’s Fall 2023 magazine.
Also of interest is the fact that right after the law school was established its counsel at the time represented to the California Supreme Court in the litigation over the admission of women to the college (Foltz v. Hoge, (1879) 54 Cal. 28) that: “[t]he statute (citation) and the payment of $100,000 by Judge Hastings, constituted a complete contract between Hastings and the State, under which the college was founded. (citation) It is a private eleemosynary perpetual trust. . . . Though a perpetuity, it has the express sanction of the Constitution (citation).”
And in Coutin v. Lucas (1990) 220 Cal.App.3d 1016, 1020 the court referred to the former UC Hastings as being subject to “the continuing effect of terms of the private trust of Serranus C. Hastings which appear as provisions of the 1878 act originally establishing Hastings College of the Law in the University of California.”
Thus, when the school’s Fall 2023 magazine says at page 13: “As the first law school in the University of California system, but for the founder’s name being attached to the College, we would have been designated the University of California College of the Law, San Francisco,” it is ignoring the legal process by which it acquired its original name, and the legal constraints on, and consequences of, changing it. The Act that created the college expressly states that “should the College cease to exist, then the State . . . shall pay to the said S.C. Hastings, his heirs or legal representatives, the sum of one hundred ($100,000) thousand dollars and all unexpended accumulated interest.” Hastings College Conservation Committee v. Faigman supra, 92 Cal.App.5th at 328.
★
In the face of its boasting that “[o]ur current success owes much to those who came before us,” the law school’s treatment of its founder proves hypocritical. In AB 1936, the Legislature erroneously finds that “S.C. Hastings perpetrated genocidal acts against Native California Indigenous People, . . . enriched himself through seizure of large parts of [the Eden and Round Valleys in Mendocino County],” and that “S.C. Hastings’ name must be removed from the College to end this injustice and begin the healing process for the crimes of the past.”
In fact, the charge of genocide has been found to be unsupported by a committee of the law school’s Board of Directors, and Serranus Hastings testified under oath in the Legislature’s 1860 investigation into the atrocities that are now being attributed in part to him that he did not know of the militia members’ actions until that 1860 legislative investigation commenced. It is also undeniable that he legally purchased his land from the State of California.
Instead of sticking with its initial, studied decision not to change the name, the political and economic interests of a powerful few caused the law school’s dean and Board of Directors to summarily reverse themselves and successfully lobby the Legislature and Governor to change the name. The U.S. Supreme Court has explained that a major concern that prompted the Constitution’s bill of attainder prohibition was: “the fear that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient to assume the mantle of judge—or worse still, lynch mob.” Nixon v. Administrator of General Services (1977) 433 U.S. 425, 480.
The current litigation to undo the name change will provide the plaintiffs, Serranus Hastings’ legacy and his other heirs that are now subject to attainder for his alleged “crimes” with the fair judicial trial required by the state and federal constitutions, and the rule of law that has been taught at Hastings College of the Law for the last 145 years.
Copyright 2023, Metropolitan News Company