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In My Opinion
The Hastings Controversy Comes to a Conclusion—a Retrospective Look
By Kristian Whitten
(The writer is one of the plaintiffs in the subject litigation and is a retired California deputy attorney general.)
On Aug. 21, the State Bar of California’s staff completed its restoring of the name “Hastings” to the alma maters listed on the many thousands of attorney profiles of all members who graduated from UC Hastings College of the Law.
This effort became necessary because, as the MetNews noted on March 8 and 10, 2023, after “Hastings” was eliminated from the school’s name by legislation effective January 1, 2023, the State Bar summarily changed its public website to say that all members who graduated from UC Hastings, had, in fact, graduated from UC College of the Law, San Francisco (the new name).
After numerous UC Hastings alumni objected, the State Bar reversed itself, reinstating the name of our alma mater, to UC Hastings. Then, within days, the information on the website was changed back to say that we graduated from UC College of the Law, San Francisco.
Alumni continued to remonstrate with the State Bar, and in November 2023 its staff proposed a new policy on law school name changes, which was put out for public comment. After the public comment period ended, the new policy was finalized, and approved by the State Bar Trustees. Thanks to the diligent work of the State Bar’s staff, it has now been implemented.
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As reported in the MetNews on May 17, in a return to the truth and the rule of law, the State Bar’s Trustees’ new name change policy provides that: “unless retroactive application is required explicitly by statute or by order of the Supreme Court, law school name changes will only be reflected on the attorney profile page prospectively—to licensees who graduated after the effective date of the name change....”
This episode personalized the law school’s name change for its thousands of alumni, and highlights the intentional, summary and hasty nature in which it was accomplished; without any meaningful opportunity for those of us who had relied on the school’s long-studied and considered decision not to change the name, to have any realistic chance of our fact and law based objections to the sudden name change being seriously considered by the law school’s Board of Directors, the Legislature or the governor.
The lead up to this sudden name change and its ill-considered, expensive consequences began with a 2017 op-ed in the San Francisco Chronicle by lawyer and historian John Briscoe, that claimed the law school’s founder, California’s first chief justice, Serranus Hastings, “was promoter and financier of Indian-hunting expeditions in the 1850s.” Briscoe attributed that conclusion to the book, “An American Genocide,” published in 2016 by UCLA history professor Benjamin Madley.
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This led the law school to start a multi-year process of reviewing Hastings’ actions, which ultimately resulted in the decision not to change the school’s name. Thus, in September 2020 UC Hastings’ chancellor and dean, David Faigman, “reached the conclusion that, when taken together, the factors relevant to considering this question overwhelmingly point toward retaining the name, UC Hastings College of the Law.” In that same memo he disclosed that none of the Indian tribes who had been consulted during the school’s multi-year study wanted the name of the school changed, and that if the name were changed, the state law establishing the school specifies that the original Hastings “bequest” ($100,000 in gold coin) must be returned, with interest, to the heirs of Serranus Hastings. Also, in a 2017 article he is quoted as saying that “removing Hastings’ name could violate the trust agreement made with the state 139 years ago when he gave the money to start the school.” See Coutin v. Lucas (1990) 220 Cal.App.3d 1016, 1020 (the 1878 Act establishing Hastings College of the Law includes “the continuing effect of terms of the private trust of Serranus C. Hastings....”)
However, within days of an October 27, 2021 New York Times front-page article erroneously accusing the college’s founder of the theft of Indian land and “mastermind[ing] one set of [Indian] massacres” in the late 1850s, the law school’s Board of Directors suddenly directed Chancellor and Dean Faigman to request that the state Legislature and governor change the name.
In addition to being based upon unsupported factual allegations, that about-face on the name change did not comply with the University of California’s system-wide name-change policies, which require that renaming a facility “must be consistent with the University’s role as a public trust.” Among other things, they require “that Chancellors seek the widest possible counsel when considering proposals for naming or renaming....” As an affiliated college, UC Hastings should have followed those guidelines, but UC Hastings’ chancellor made no (and could not have made) such efforts between the date of the Times article and the Board of Directors’ vote directing him to request that the Legislature and governor change the college’s name.
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However, UC Hastings’ leadership has a fiduciary duty to the college and its stakeholders, just as UC’s leadership has a fiduciary responsibility to all of the University’s stakeholders. That duty was recently confirmed by UC President Michael Drake in his Jan. 25 public statement about employing undocumented students. See generally, “Entitled to Our Land: The Settler Colonial Origins of the University of California,” 14 Calif. L. Rev. Online 23, 47 (2023) (discussing UC’s status as a public trust and seeking reparations from the Regents for California Indian Tribes “such as the Round Valley Indian Tribes”).
Just as the California Supreme Court required that UC Hastings admit Clara Shortridge Foltz because it is affiliated with UC and the University admits women, so should it follow that UC Hastings comply with UC’s procedures for renaming itself. See Foltz v. Hoge (1879) 54 Cal. 28, 34 (“An affiliation imports a subjection to the same general laws and rules that are applicable to the parent institution, with such special exceptions as may expressly be made, and such as arise from the very nature and purpose of the affiliated institution.”); Civil Code §3521 (“He who takes the benefit must bear the burden.”)
But after the sudden vote to change the name, alumni fact-based objections were rejected by legislators who insinuated they were “fake news,” and that what the New York Times wrote about Serranus Hastings was true, because the Times prints only “news that’s fit to print.” On the floor of the state Senate, when Sen. Andreas Borgeas suggested that they should not just accept the accusations against Serranus Hastings as true, the name change legislation’s coauthor and powerful UC Hastings alumnus Sen, Tom Umberg said: “the issue is...no longer debatable....There is no reasonable doubt that Serranus Hastings engaged, involved, participated in the funding of this genocidal activity.” A plea to the governor to veto the legislation and/or to send the matter to his Native American Truth and Healing Commission went unanswered. Thus, our only viable recourse was to the courts.
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In October 2022 we filed our 73-page complaint (including exhibits) alleging that the name-change legislation (AB 1936), which changes the school’s name and removes the Hastings family’s ancestral seat on its Board of Directors, violates the state and federal Constitution’s contracts, bill of attainder and ex post facto clauses, California Constitution Art. 9, §9 (“[t]he university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs....”), is a waste of taxpayer funds, and causes of action for deprivation of civil rights (42 U.S.C. §1983), breach of contract (specific performance), and breach of contract (damages).
However, the college and state kept the case from proceeding on the merits by filing an anti-SLAPP motion. The trial court’s denial of that motion was affirmed on appeal in Hastings College Conservation Committee v. Faigman (2023) 92 Cal.App.5th 323, but until review was denied by the California Supreme Court, all proceedings on the merits were stayed.
The college and state then filed demurrers to all of our causes of action, and on Feb. 6 of this year San Francisco Superior Court Judge Richard B. Ulmer sustained all demurrers without leave to amend. The lynchpin of that ruling was that the transaction resulting in the law school being founded was not a contract. The logical extension of the Superior Court’s analysis suggests that, at any time after the State received Hastings’ $100,000, the law school, Legislature and governor could have lawfully removed his name from the college.
If that’s the law, Caveat emptor; prospective donors to the law school and other state intuitions that market “naming opportunities” beware!
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However, the recently published Court of Appeal opinion dealing with the anti-SLAPP motion found that the Legislature’s 1878 “Act” that created the law school provides “[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, supra, 92 Cal.App.5th at 328.
That is a description of a unilateral contract; offer, acceptance, and consideration, which creates a contract in clear and unambiguous language. The state and federal constitutions’ contracts clauses prohibit the legislative impairment of such contracts.
In addition, the decision to change the name was wrongly premised on the New York Times being right about Serranus Hastings. The facts and testimony collected in the Legislature’s 1860 investigation into the Mendocino Indian Wars, and extant law, show that Hastings bought his land legally from the State of California, and the claim that he “masterminded” the killing of Indians carried out by the state’s governor-appointed militia is contrary to the direct evidence. There is no claim that Serranus Hastings actually killed, or actively participated in the killing of, any Indians, and during the 1860 Legislature’s investigation he testified under oath that he did not know of the atrocities being investigated until after they occurred.
Yet, AB 1936 is based upon findings that Serranus Hastings committed what it refers to as “crimes.” There was obviously no “judicial trial” leading up to this ex post facto “conviction,” which gives rise to the allegation that AB 1936 is a bill of attainder. Cf., Legislature v. Eu (1991) 54 Cal.3d 492, 525 (“A bill of attainder has been defined as a ‘legislative punishment of any form or severity, of specifically designated persons or groups’ (citation), or a ‘legislative act[]...that applies[ies] either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial’ (citation).”
Addressing bills of attainder, and quoting from 1 Cooley, Constitutional Limitations, pp. 536-537 (8th ed. 1927), in United States v. Brown (1965) 381 U.S. 437, 445-446, Chief Justice Earl Warren pointed out:
“Every one must concede that a legislative body, from its numbers and organization, and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamor, is not properly constituted to try with coolness, caution, and impartiality a criminal charge, especially in those cases in which the popular feeling is strongly excited,—the very class of cases most likely to be prosecuted by this mode.”
See also, Consol. Edison Co. of N.Y., Inc. v. Pataki (2d Cir. 2002)292 F.3d 338, 355 (“[T]he stated intent of at least some legislators —most notably one of the floor managers of the legislation—to punish Con Ed reinforces our independent conclusion that a substantial part of the legislation cannot be justified by any legislative purpose but punishment.”). See generally McClung v. Employment Development Dept., 34 Cal.4th 467, 469-70 (2004) (“It is, emphatically, the province and duty of the judicial department, to say what the law is.”)
The fact that, as California’s attorney general and governor, Earl Warren advocated and supported the internment of Japanese Americans during WWII is also relevant to the punishment of Serranus Hastings and his family, because he was referred to by UC Berkeley Law’s dean during the process of changing the name of the building formerly called Boalt Hall. In his memo, Dean Erwin Chemerinsky described Warren as an example of a “notable individual[]” who deserved to be honored, “notwithstanding [his] racist statements and actions.” No such consideration was given to Serranus Hastings. That same memo also notes that with gifts requiring a specific name to be attached to the object of that gift, a name change: “would require a request to the Attorney General of California to go to court” – presumably to seek alteration of the terms of a trust.
The State Bar’s candid acknowledgement and correction of its error stands in stark contrast to the Superior Court’s dismissal of our entire action without leave to amend. At a minimum, the Superior Court’s dismissal should be reversed because it should have allowed us to amend our complaint. Panterra GP, Inc. v. Superior Court (2022) 74 Cal.App.5th 697, 709 (“A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.”); Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 370 (“Where a demurrer to the original complaint is sustained, denial of leave to amend constitutes an abuse of discretion if the pleading does not show on its face, or by attachment or judicial notice, that it is incapable of amendment.”
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