Page 8
In My Opinion
Effort Continues in 2025 to Restore Name of ‘Hastings’ to Law School
By Kris Whitten
(The writer is a retired California deputy attorney general, and a member of the Hastings College Conservation Committee, a group of alumni of the institution which they, along with a group of Hastings family members, want to bear its traditional name of “UC Hastings College of the Law,” and have sued to contest the Legislature’s recent renaming of it as “University of California College of the Law, San Francisco.”)
Another year is under way in the litigation filed in October 2022 in San Francisco Superior Court seeking to return the “Hastings” name, and restore the Hastings family’s ancestral seat on the Board of Directors of the former UC Hastings College of the Law; the law college “found[ed] and establish[ed]” by California’s first chief justice, Serranus Clinton Hastings. See Hastings College Conservation Committee v. Faigman (2023) 92 Cal.App.5th 323, 328).
★
But litigating the case has not yet been allowed because the law school’s response to the complaint was a flawed, time consuming and expensive anti-SLAPP motion, which automatically prevented any proceedings on the merits. Although the motion was denied by the Superior Court, and that ruling was affirmed on appeal in Hastings College Conservation Committee v. Faigman, supra, 92 Cal.App.5th 323, until review of that decision was denied late last year by the California Supreme Court, all proceedings on the merits remained stayed.
The law school and state then demurred to the complaint, and on Feb. 6 of last year, Judge Richard B. Ulmer Jr. sustained their demurrers to all causes of action in the plaintiffs’ 73-page complaint (including exhibits) without leave to amend, and subsequently dismissed the lawsuit.
Art. IX, §9 of the California Constitution provides: “The 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....” The complaint alleges that the portions of the legislation (AB 1936) which changed the school’s name and removed the Hastings family’s ancestral seat on its board of directors violate the state and federal Constitutions’ Contracts, Bill of Attainder and Ex Post Facto Clauses and is a waste of taxpayer funds. Causes of action are stated for deprivation of civil rights (42 U.S.C. §1983), breach of contract (specific performance), and breach of contract (damages).
Dismissal of the lawsuit has resulted in an appeal by plaintiffs, which is still in the process of being briefed.
★
In a recent media story about the presentation by state Sen. Thomas Umberg, D-Orange County, at a webinar sponsored by the California Lawyers Association, Umberg is reported to have claimed to have helped with the passage of AB 1936, and asserts that the bill “later survived a legal challenge brought by disgruntled alumni.” Umberg was a co-sponsor of AB 1936, and on the floor of the state Senate he responded to a colleague’s concern that they should not simply accept others’ statements about Serranus Hastings as true with: “The issue is...no longer debatable....There is no reasonable doubt that Serranus Hastings engaged, involved, participated in the funding of this genocidal activity.” Umberg had previously acknowledged that the California Legislature’s 1860 investigation into the Mendocino Indian Wars, in which former Chief Justice Hastings testified under oath, had “absolve[d]” him.
And another media story about the nomination of one of plaintiffs’ counsel, Harmeet K. Dhillon, by President-elect Donald Trump to be assistant attorney general for civil rights claims that her law firm “lost” the lawsuit that resulted from the passage of AB 1936.
The lawsuit is not “lost,” nor has AB 1936 “survived a legal challenge,” because the facts and related legal issues involved are very much alive on appeal. The lawsuit’s dismissal was error because there are material facts in dispute.
★
For instance: AB 1936 “finds” that Serranus Hastings “perpetrated genocidal acts against Native California Indigenous People, most especially the Yuki Tribe;” “S.C. Hastings enriched himself through the seizure of large parts of [the Eden and Round Valleys] and financed the college of law bearing his namesake with a $100,000 donation;” and “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.” See, Kristian Whitten, “Serranus Clinton Hastings, A Counterpoint on Culpability,” California Supreme Court Historical Society Review (Fall/Winter 2023) (“Whitten Counterpoint”), p. 9. Under state and federal law at that time, Hastings held good title to his land. Id. at p. 3. The U.S. Supreme Court has warned factfinders to be “cautious of arguments reliant on ex post reasoning.” KSR Int’l Co. v. Teleflex Inc. (2007) 550 U.S. 398, 421. See Whitten Counterpoint p. 12, fn. 72.
★
Before the lawsuit was filed, and after a group of alumni presented UC Hastings’ Board of Directors with evidence from the California Legislature’s 1860 investigation, a committee of that board concluded that their resolution to pursue the renaming of the school which included: “Serranus Hastings promoted and funded genocide,” was erroneous; they determined “that the Board does not have adequate information to say that Judge Hastings engaged in genocide.”
And after reviewing Hastings’ sworn testimony, in which he stated that he had no knowledge of Indian killings before they occurred, the board committee also determined “that there is no incontrovertible proof that Judge Hastings knew more than he acknowledged.” It also admitted that their decision to change the school’s name was a “moral,” not “legal,” one.
When two members of the lead plaintiff appeared before the state Senate’s Education Committee to present evidence from the 1860 legislative investigation in opposition to what ultimately became AB 1936, one committee member asked, “if this is fake news or not?” He then said: “I am embarrassed to hear folks come in and defend the name of this institution.” And the chair of the Assembly Higher Education Committee said that he believed what the New York Times wrote about Hastings because the Times prints “only news that’s fit to print.” He said: “I do not doubt the facts.”
The fact that the law school kept plaintiffs from proceeding with the merits of the case by filing its anti-SLAPP motion should have been additional good cause to at least allow amendments to the complaint.
★
The recently published Court of Appeal opinion dealing with the anti-SLAPP motion found that the 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 the 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.
But the Superior Court ruled that there is no binding contract, and its analysis leads to the erroneous conclusion that, at any time after the state received the $100,000 from Serranus Hastings, it and the school’s Board of Directors were free to remove his name and the family’s ancestral Board of Directors seat from the college. As confirmed by the legislative history which is part of the court’s record, that was not the parties’ intent.
★
In fact, the school’s chancellor and dean warned in a 2017 article 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....”); 5 Scott and Ascher on Trusts (5th ed.) §37.4.2.3 (describing the contract at issue in Trustees of Dartmouth College v. Woodward (1819) 17 U.S. 518 as a charitable trust). See, generally, Lynch v. United States (1934) 292 U.S. 571, 580 (“punctilious fulfillment of contractual obligations is essential to the maintenance of the credit of public as well as private debtors.”)
And the state and federal constitutions’ Bill of Attainder Clauses prevent the “legislative punishment of any form or severity, of specifically designated persons or groups...in such a way as to inflict punishment on them without a judicial trial.” See Legislature v. Eu (1991) 54 Cal.3d 492, 525.
★
The law school’s board committee’s statement that the board’s decision to change the school’s name was a “moral,” not “legal” one clearly falls short of the standards mandated in a “judicial trial,” as required by the Bill of Attainder clauses. See United States v. Brown (1965) 381 U.S. 437, 445-446, quoting 1 Cooley, Constitutional Limitations, pp. 536-537 (8th ed. 1927) (“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.”)
In ruling on a demurrer, the court “must assume the truth of the complaint’s properly pleaded or implied factual allegations” and “must also consider judicially noticed matter.” Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081. See also 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.”)
Copyright 2025, Metropolitan News Company