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In My Opinion
Judge Who Dismissed Suit to Restore Name of ‘Hastings College of Law’ Got It Wrong
By Kris Whitten
(The writer is a retired California deputy attorney general and a member of the Hastings College Conservation Committee.)
More than a year after members of the Hastings family and a group of alumni of the former Hastings College of the Law filed suit seeking a return of the Hastings name to the law school and restoration of the ancestral seat on its Board of Directors, and after a year-long unsuccessful effort by defendants to have that lawsuit dismissed under the state’s anti-SLAPP statute (which had the effect of halting all proceedings on the merits, including discovery) on Feb. 6 San Francisco Superior Court Judge Richard B. Ulmer sustained demurrers without leave to amend to all of the causes of action in the plaintiffs’ 73-page complaint (including exhibits).
At the hearing on the demurrers, plaintiffs’ counsel pointed out that the court’s tentative ruling incorrectly assumed that the law school’s Board of Directors had requested that the Legislature remove the Hastings family’s board seat. In response to the court’s question, the state’s counsel in effect confirmed that the school did not request the removal of that board seat.
Nevertheless, Ulmer ruled that it did, even though his order also finds that removal of the board seat was a “concrete injury.” He concluded that as a matter of law, plaintiffs have no legally viable claims, upholding the Legislature’s removal of the Hastings name and family’s board seat.
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However, the recent, published Court of Appeal opinion dealing with the anti-SLAPP motion described the Legislature’s 1878 “act” that created the law school as providing “[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 Serranus 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 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.
A lynchpin of the Superior Court’s and defendants’ erroneous Contracts Clause analysis are obfuscating snippets from United States v. Winstar (1996) 518 U.S. 839, a case which decided issues about federal government contracts and acts of the United States. However, Winstar notes that the Contracts Clause does not apply in such cases (id at p. 876), that the “unmistakability doctrine” relied on by defendants is a canon of construction that applies to the federal government’s contracts (id. at pp. 921, 925), and that “damages are always the default remedy for breach of contract.” (Id. at pp. 885, 919).
The U.S. Supreme Court has said that the remedy for a state legislature’s violation of the Contracts Clause is “a judicial determination declaring the nullity of the attempt to impair the obligation” (Carter v. Greenhow (1879) 114 U.S. 317, 322), and the Ninth U.S. Circuit Court of Appeals has upheld a Contracts Clause claim under 42 U.S.C. §1983. S. Cal. Gas Co v. City of Santa Ana (2003) 336 F.3d 885, 887. Plaintiffs have also alleged alternative state law breach of contract claims seeking specific performance and damages.
In their demurrer papers, defendants also cite Town of E. Hartford v. Hartford Bridge Co. (1851) 51 U.S. 511 (1851) and Newton v. Commissioners (1879) 100 U.S. 548 for the proposition that state legislatures cannot be restrained by the Contracts Clause from amending statutes. But in Newton, the court, at 559, premised its conclusions on the fact that each state makes those decisions for itself, “except as restrained by its own constitution.”
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California’s Constitution has its own Contracts Clause and, as set forth in plaintiffs’ opposition to the demurrers, California has decided that although the intent to make a contract must be clear, such intent may be implied. Retired Employees Association of Orange County v. County of Orange, 52 Cal.4th 1171, 1187. See, California Fire Local 2881 v. California Public Employees’ Retirement System (2019) 6 Cal.5th 965, 908 (“A contractual right can be implied from legislation in appropriate circumstances....Where, for example, the legislation is itself the ratification or approval of a contract, the intent to make a contract is clearly shown.”) And in California Teachers Association v. Cory (1984) 155 Cal.App.3d 494, 509, the court said: “As we have shown, a clear manifestation of intent to contract does not require explicit statutory acknowledgement. Similarly, the suspension of legislative control may be inferred from less than an explicit disavowal of any right to modify the promise,” citing Newton’s statement that the barring of such amendments can be implied. See also id, fn. 8. See also Legislature v. Eu, 54 Cal.3d 492, 534 (1991) (“We conclude that the pension restrictions on Proposition 140 are unconstitutional under the federal contracts clause....”)
The court’s order also relies on a federal First Circuit case citing Winstar, which asks whether the Legislature had made it clear that it intended to bind future legislatures. In the case of the act creating UC Hastings, as set forth above, the California Court of Appeal has recently again answered that question in the affirmative.
Also, in Coutin v. Lucas (1990) 220 Cal.App.3d 1016, 1020, the Court of Appeal described UC Hastings as being subject to “the continuing effect of terms of the private trust of S.C. Hastings which appear as provisions of the 1878 act originally establishing Hastings College of the Law in the University of California.” See also Dingwell v. Seymour (1928) 91 Cal.App. 486, 508 (describing a trust agreement as “like any other contract....”); L.B. Research & Education Foundation v. UCLA Foundation (2005) 130 Cal.App.4th 171, 178 (describing its review of a possible trust agreement as “interpretation of an allegedly ambiguous contract...”).
To adopt defendants’ and the Superior Court’s erroneous analysis is to say, in effect, that any time after Serranus Hastings paid the $100,000 to the state, the college’s Board of Directors and Legislature were free to keep the money and eliminate his name and the family’s board seat from the law school. Donors to the law school who take advantage of its advertised “naming opportunities” may be chagrined if it turns out the school can remove their name at will.
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Foltz v. Hoge (1879) 54 Cal. 28 established that because UC Hastings was affiliated with the University of California, and its admits women students, so must UC Hastings. In that case, its then-counsel represented to the California Supreme Court 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....(Dartmouth College Case, 4 Wheat. 668-9....)” See also 8 Witkin, Summary of California Law (Constitutional Law) §1420 (11th ed. 2017) (describing the college charter at issue in Trustees of Dartmouth College v. Woodward (1819) 17 U.S. 518 as involving “a contract to which the donors, the trustees and the crown were the original parties.”); 5 Scott and Ascher on Trusts (5th ed.) §37.4.2.3 (describing the contract at issue in the Dartmouth College Case as a charitable trust.)
The court in Foltz rejected the argument of the law school’s Board of Directors that they “have the entire control and management of the trust, subject only to the supervision of a court of chancery,” and held that: “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.” 54 Cal. at 34.
The Court of Appeal’s opinion in Coutin is consistent with counsels’ description of the contract in Foltz. The Board of Directors did not oppose the attorney general’s position in Coutin, but the court nevertheless fully analyzed the constitutional basis of the taxpayer’s claim seeking to overturn the Legislature’s removal of the chief justice of California as the ex officio president of UC Hastings’ Board of Directors. In doing so, it affirmed that the act contains the terms of S.C. Hastings’ private trust, and gave two examples of what the Legislature could not do: alter the size of the board or add a student to the board. 220 Cal.App.3d at 1026.
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The California Constitution limits the power of the Legislature in matters affecting UC Hastings by providing that UC Hastings is “subject to legislative control for certain purposes only,” and that the Legislature is “not competent” to act beyond those limited purposes. (People ex rel Hastings v. Kewen (1886) 69 Cal. 215, 216. Those limits are binding on the college’s board too, and prevent it from requesting unconstitutional action by the Legislature. Like the University’s Regents and the state’s legislators, governor, and other officials, the school’s directors are bound by their oaths to uphold the California and United States constitutions. See generally McClung v. Employment Development Department (2004) 34 Cal.4th 467, 469-470 (“It is, emphatically, the province and duty of the judicial department, to say what the law is.”)
And as an affiliate of UC, the former UC Hastings is bound to follow UC’s system-wide name-change policies, which have been in place since 2002. They require that chancellors “seek the widest possible counsel when considering proposals for naming or renaming, in order to take advantage of the institution’s collective memory,” and also require a thorough consultive process. Those polices were not even attempted when the Board of Directors suddenly reversed within a week’s time its long-studied decision not to change the name.
AB 1936, which changed the school’s name and removed the family’s ancestral board seat, did so based upon its findings that S.C. Hastings had committed “crimes” in the late 1850s. This, in spite of the fact that its 1860 investigation, where California’s first chief justice testified under oath, did not find that he had any responsibility for those same atrocities, of which it has now found him guilty ex post facto. The result is that his name and legacy have been severely tarnished, the terms of his “private trust” have been violated, and his family is attained by the removal of its board seat. Those facts allege a bill of attainder. Cf., Legislature v. Eu, supra, 54 Cal.3d at 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)).”
Under these circumstances, the dismissal of plaintiffs’ entire case on demurrer, in the first instance and without permitting amendment, should be reversed. To do otherwise would ignore much of what is pled in plaintiffs’ complaint and what the U.S. Supreme Court has said prompted the bill of attainder prohibition: “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. AB 1936 should be subject to a judicial review that takes account of all of the relevant facts and applicable law.
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