The opinion
Filed 10/15/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
HASTINGS COLLEGE
CONSERVATION
COMMITTEE et al., A170255
Plaintiffs and Appellants,
(San Francisco City
v. & County Super. Ct. No.
STATE OF CALIFORNIA et CGC-22-602149)
al.,
Defendants and
Respondents.
On January 1, 2023, Assembly Bill No. 1936 (2021–2022
Reg. Sess.) (Assembly Bill 1936) changed the name of what was
formerly known as “Hastings College of the Law” to “College of
the Law, San Francisco” (College). (Ed. Code, § 92200.)
Assembly Bill 1936 also deleted from Education Code
section 92204 the requirement that one member of the College’s
board of directors “shall always be an heir or representative of
S.C. Hastings.”
Plaintiffs the Hastings College Conservation Committee
and individuals Stephen Hastings Breeze, Stephanie Azalea
Brackel, Catherine Torstenson, Scott Hastings Breeze, Collette
Breeze Meyers, and Colin Hastings Breeze appeal a judgment
entered in favor of defendants State of California (State) and the
College’s dean and directors in their official capacities
(collectively the College Defendants)1 on plaintiffs’ complaint
challenging Assembly Bill 1936. The judgment was entered after
the trial court sustained defendants’ demurrer without leave to
amend. We affirm.
BACKGROUND2
I.
Born in 1814, Serranus Clinton Hastings (S.C. Hastings)
was the first Chief Justice of California and the State’s third
Attorney General. In addition to holding these public roles, he
amassed significant wealth from various real estate ventures and
by 1870 became one of the largest landowners in California. In
1878, S.C. Hastings sought to establish the first law school on the
West Coast of the United States and proposed the same to the
California Legislature. In response, the Legislature enacted a
statute that same year titled “An Act to create Hastings’ College
of the Law, in the University of the State of California” (the Act).
(Stats. 1878, ch. 351, p. 533, italics omitted.)
The Act 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.’ ” (Stats. 1878,
1 The College Defendants are David Faigman, Simona
Agnolucci, Carl Robertson, Shashikala Deb, Michael Ehrlich,
Andrew Giacomini, Andrew Houston, Claes Lewenhaupt, Mary
Noel Pepys, Courtney Power, and Albert Zecher.
2 Our recitation of facts is taken largely from our prior
opinion in this action. (Hastings College Conservation Committee
v. Faigman (2023) 92 Cal.App.5th 323, 327–329.)
2
ch. 351, § 1, p. 533.) The Act further provided that the College
would be governed by a board of directors (Board), independent of
the Regents of California, and that the directors “shall always
provide for filling a vacancy with some heir or some
representative of . . . S.C. Hastings.” (Ibid.)
The Act’s passage was expressly conditioned upon
S.C. Hastings’s payment of $100,000 into the State’s treasury.
(Stats. 1878, ch. 351, § 7, p. 534.) The Act required the State to
appropriate seven percent per year of this sum and pay it “in two
semi-annual payments to the Directors of the College.” (Id., § 8,
p. 534.) The Act further stated that “should the State . . . fail to
pay to the Directors of said College the sum of seven per cent per
annum . . . or should the College cease to exist, then the State . . .
shall pay to the said S.C. Hastings, his heirs or legal
representatives, the said sum of one hundred ($100,000)
thousand dollars and all unexpended accumulated interest.” (Id.,
§ 13, p. 534.) The College was established after S.C. Hastings
paid $100,000 to the State’s treasury. The Legislature
subsequently codified the Act’s terms in the Education Code.
(See Ed. Code, former § 92200 et seq.)
In 2017, the San Francisco Chronicle published an article
titled “The Moral Case for Renaming Hastings College of the
Law,” which included allegations that S.C. Hastings was involved
in fomenting violence and atrocities against Native Americans
living in what is present-day Mendocino County. In response, the
College formed the Hastings Legacy Review Committee (HLRC)
to consider and make appropriate recommendations to address
3
S.C. Hastings’s legacy. It also commissioned a history professor
to research and draft a report regarding S.C. Hastings’s role in
the killing of indigenous people in Northern California in the
mid-19th century. In September 2020, Dean Faigman submitted
a report to the Board that discussed HLRC’s conclusions and
recommended that the College retain its name but pursue other
restorative justice initiatives. In recommending that the College
keep its name, Dean Faigman reasoned that “most of the legal
profession has no idea who Serranus Hastings was or that UC
Hastings was named after him.”
On October 28, 2021, The New York Times published an
article questioning the College’s name with a headline that
S.C. Hastings “masterminded the killings of hundreds of Native
Americans.” On November 2, 2021, the Board held a special
meeting and passed a resolution directing Dean Faigman to
“work with the California Legislature, the Governor’s Office, and
other offices to enact legislation changing the name of the school.”
A number of other meetings followed, and the Board ultimately
passed a resolution to recommend the name “College of the Law,
San Francisco” to the Legislature.
Assembly Bill 1936 was passed by the Legislature in
August 2022 and signed by the Governor in September 2022.
(Stats. 2022, ch. 478.) Assembly Bill 1936 designated the school’s
name as “College of the Law, San Francisco” and amended
various statutes, including sections of the Education Code, to
conform to the new name. It also eliminated S.C. Hastings’s
4
hereditary seat on the Board. Assembly Bill 1936 became
effective on January 1, 2023.
II.
Plaintiffs—a College alumni association and various
descendants of S.C. Hastings—filed a complaint against the State
and the College Defendants. The complaint included causes of
action for declaratory relief against all defendants on the grounds
that Assembly Bill 1936 violated the contract clauses of the
California and United States Constitutions (first cause of action),
constituted an impermissible bill of attainder and ex post facto
law (second cause of action), and violated the California
Constitution’s provision regarding collegiate freedom (third cause
of action). The complaint requested a declaration that the
College’s name remains “Hastings College of the Law” and that
S.C. Hastings’s heirs or representatives are still entitled to a seat
on the Board. Against the College Defendants only, the
complaint sought injunctive relief to enjoin them from
implementing the unconstitutional provisions of
Assembly Bill 1936, including the further expenditure of
taxpayer funds to change the College’s name (fourth cause of
action) or to eliminate the hereditary Board seat (fifth cause of
action). Against the State only, the complaint alleged a cause of
action seeking specific performance for breach of contract (sixth
cause of action) and a cause of action seeking damages for breach
of contract (seventh cause of action) on the grounds that the Act
constituted a “binding written agreement between the State of
5
California and S.C. Hastings and his descendants” and that the
State breached this agreement by enacting Assembly Bill 1936.
Defendants demurred to the complaint on the ground that
it failed to allege facts sufficient to state a cause of action.
Following receipt of plaintiffs’ opposition and a hearing on the
motion, the trial court issued an order sustaining the demurrers
without leave to amend. As to the claims steeped in contract law
(first, sixth, and seventh causes of actions), the trial court held
that plaintiffs “fail[ed] to meet their heavy burden” of
establishing that the Act is a contract as opposed to an exercise of
ordinary legislative powers. As to the second cause of action, the
court held that Assembly Bill 1936 does not constitute a bill of
attainder or violate the ex post facto clause because it only
“arguably singles out [] Mr. Hastings, who died years ago,” and
does not punish plaintiffs. With respect to the third cause of
action (collegiate freedom), the trial court held that Assembly
Bill 1936 does not violate the California Constitution because the
College’s Board was the impetus for the enactment of Assembly
Bill 1936 “and therefore does not present the situation where the
Legislature is attempting to dictate university policy.” By
extension of these conclusions, the court reasoned that plaintiffs’
fourth cause of action (waste of taxpayer funds) and fifth cause of
action (42 U.S.C. § 1983) failed for lack of an underlying
constitutional or statutory violation.
DISCUSSION
We review de novo an order sustaining a demurrer without
leave to amend, exercising our independent judgment to evaluate
6
whether the complaint states a cause of action under any possible
legal theory. We treat the demurrer as admitting all material
facts properly pleaded, but not contentions, deductions, or
conclusions of fact or law; we also consider matters that may be
judicially noticed. Because we review the court’s ruling rather
than its rationale, we are not bound by the trial court’s stated
reasons, and affirm if any ground offered in support of the
demurrer was well taken. (See Walgreen Co. v. City and County
of San Francisco (2010) 185 Cal.App.4th 424, 433.)3
I.
The complaint alleges that (1) the State “entered into a
complete contract with S.C. Hastings concerning the College’s
establishment, name, funding, and governance;” (2) the
“California Legislature set forth the material terms of the
agreement in its March 26, 1878 Act, which it later codified as
California Education Code Section 92200–92212 after
S.C. Hastings upheld his end of the bargain;” and (3) the
enactment of Assembly Bill 1936 impermissibly impairs the
State’s obligations under this agreement. Based on these
allegations, plaintiffs assert causes of action for breach of
contract and for violation of the Contracts Clauses of the state
and federal Constitutions (Cal. Const., art. I, § 9; U.S. Const.,
art. I, § 10, cl. 1), which limit the power of the State to enact
legislation modifying preexisting contractual obligations. (United
States Trust Co. v. New Jersey (1977) 431 U.S. 1, 17.)
3 Plaintiffs do not challenge the denial of leave to amend.
7
As they do on appeal, in their demurrers defendants argued
that the Act was not a contract for two reasons: First, the
Legislature did not intend to bind itself contractually, and
second, even if it did, it lacked the authority to do so because
states cannot bargain away their right to regulate “public
matters and bodies.” (East Hartford v. Hartford Bridge Co.
(1851) 51 U.S. 511, 534 (East Hartford).) The trial court agreed
with the first of these arguments and did not reach the second.
Tackling the problem from the other direction, we find it
unnecessary to decide whether the language of the Act or the
history and circumstances of its adoption evince the requisite
intent to contract because we agree with defendants that, under
the reserved powers doctrine (see United States v. Winstar Corp.
(1996) 518 U.S. 839, 888 (Winstar)), the Legislature could not
contract away sovereign authority to manage a public institution
like the College.
Defendants invoke Newton v. Commissioners (1879)
100 U.S. 548 (Newton), which concerned an 1846 Ohio statute
providing that, “ ‘before the seat of justice shall be considered
permanently established at Canfield, the proprietors or citizens
thereof shall give bond with good and sufficient security, payable
to the commissioners of said county . . . for the sum of $5,000, to
be applied in erecting public buildings for said county, and that
the citizens of Canfield shall also donate a suitable lot of ground
on which to erect public buildings.’ ” (Id. at p. 549.) Numerous
citizens of the town executed the bond and conveyed the land,
and a courthouse was built. (Ibid.) Almost 30 years later,
8
however, the state enacted legislation moving the seat of justice
from Canfield to Youngstown, and several individuals who had
executed the bond sued, arguing that the state was contractually
bound by the provision in the 1846 statute that the seat of justice
would be “permanently established” in Canfield. (Id. at pp. 549–
552.)
The high court disagreed because “[t]he legislative power of
a State, except so far as restrained by its own constitution, is at
all times absolute with respect to all offices within its reach.”
(Newton, supra, 100 U.S. at p. 559.) Reviewing prior cases in
which the legislative or police power was found not to be subject
to contractual restraint, it explained: “They involve public
interests, and legislative acts concerning them are necessarily
public laws. Every succeeding legislature possesses the same
jurisdiction and power with respect to them as its predecessors.
The latter have the same power of repeal and modification which
the former had of enactment, neither more nor less. . . . It is vital
to the public welfare that each one should be able at all times to
do whatever the varying circumstances and present exigencies
touching the subject involved may require.” (Ibid.; cf. Casey v.
Harned (1857) 5 Iowa 1, 7, 14 [statute’s provision that whichever
of two places receives the greatest number of votes “ ‘shall be and
remain forever afterwards the County Seat of said county’ ” could
mean only that the selected town would remain the county seat
“until changed by law”]; Stevens v. Thames (1920) 204 Ala. 487,
488 [statute absorbing the Mobile Medical College into the
medical department of the University of Alabama, and providing
9
that the “medical department shall remain in Mobile for all time,
. . . could be no contractual obligation on the part of the state as
to the future maintenance and location of its own agency”].)
Plaintiffs argue that Newton is distinguishable because the
Act “formed a contract between the State and a private
individual, S.C. Hastings” and this case “does not concern any
alleged public contractual interests asserted by the citizens of a
municipality.” But the individuals who executed the bond and
donated land for the courthouse in Newton were private citizens,
and more importantly, the Court held that the State could not
contract away its authority over “all offices within its reach”
because it was “vital to the public welfare” that a future
legislature “should be able at all times to do whatever the varying
circumstances and present exigencies touching the subject
involved may require.” (Newton, supra, 100 U.S. at p. 559.)4
That is the point of the reserved powers doctrine—that “a state
government may not contract away ‘an essential attribute of its
sovereignty.’ ” (Winstar, supra, 518 U.S. at p. 888.) And what is
at issue here is sovereign authority to manage a public entity:
There is no dispute that the Act established the College as a
public institution affiliated with the University of California,
4 It is true that in East Hartford, another case cited by
defendants, the high court also addressed the fact that the
contract was between the state and a municipal corporation (East
Hartford, supra, 51 U.S. at p. 534), but Newton makes clear that
a state cannot contract away its sovereign authority to manage
its own institutions regardless of the entity or person with whom
the putative contract was made. The reserved powers doctrine is
not limited to claimed contracts between public entities.
10
which exercises the powers of the State. (Stats. 1878, ch. 351,
§ 2, p. 533; see Regents of University of California v. Superior
Court (2024) 102 Cal.App.5th 852, 858 [“The California
Constitution establishes the Regents as a ‘public trust . . . with
full powers of organization and government’ ”]; City and County
of San Francisco v. Regents of University of California (2019)
7 Cal.5th 536, 545 [noting that the College is “statutorily
designated as the law department of the University of California
(Ed. Code, § 92201)”]; cf. Trustees of Dartmouth College v.
Woodward (1819) 17 U.S. 518, 638 [distinguishing private
educational corporations from unincorporated public educational
institutions that are “controllable by the legislature”].)5
Plaintiffs cite Matsuda v. City and County of Honolulu
(9th Cir. 2008) 512 F.3d 1148, 1154 for the proposition that “a
complete list of the ‘essential attributes’ of sovereignty which
may not be contracted away under the reserved powers doctrine
has never been expressly established,” and aver that they are
unaware of any case holding that “the ability to rename a
particular public school or eliminate a single board seat reserved
for school benefactors” belongs on the list. But because no
5 We see no merit to plaintiffs’ argument that “the reserved
powers doctrine does not protect the State Legislature’s power to
rename the College’s or eliminate the hereditary Board seat
because the Legislature does not possess that power in the first
place.” We conclude in section III below that the Legislature does
possess the authority to change the name at the College’s
request, and in any event, the authority to manage the College is
an essential attribute of state sovereignty that may not be
bargained away by any public entity.
11
complete list exists, the absence of a case directly on point is not
dispositive. In our view, the appellation of a public institution or
agency, or the qualifications of individuals entitled to manage it,
are matters of public significance to which future changes may be
deemed important to advance the institution’s obligation to serve
the public interest. Plaintiffs have developed no argument to the
contrary. Nor have they argued by analogy to any case in which
some aspect of a state’s authority to manage its own institutions
or agencies was held not to be an essential attribute of
sovereignty. Accordingly, we conclude that the State cannot have
contracted away sovereign authority to change the name of the
College or to remove the hereditary board seat.6
II.
Plaintiffs next allege that, by changing the College’s name
and eliminating the hereditary board seat, Assembly Bill 1936
constitutes a bill of attainder and an ex post facto law in violation
of the United States and California Constitutions. We disagree.
A.
Bills of attainder are prohibited by the United States
Constitution. (U.S. Const., art. I, § 10.) “ ‘A bill of attainder is
6 In their opening brief, plaintiffs did not cite East Hartford
or Newton, nor did they expressly address the reserved powers
doctrine more generally. While we have nonetheless considered
the arguments offered on that subject in the reply brief, the
discussion there focuses on how the doctrine applies in the
context of plaintiffs’ Contract Clause claim and develops no
separate argument that it applies differently to their state-law
claims for breach of contract. Our review is limited to issues
properly raised and briefed. (Swain v. LaserAway Medical
Group, Inc. (2020) 57 Cal.App.5th 59, 72.)
12
“punishment” directly inflicted by the legislature on a person or
specified class for an action or status taken or existing prior to
the date of the enactment.’ ” (Alpha Standard Investment Co. v.
County of Los Angeles (1981) 118 Cal.App.3d 185, 189 (Alpha
Standard).) A law constitutes an unconstitutional bill of
attainder if it satisfies three criteria: (1) it must specify the
affected persons; (2) it must be punitive; and (3) it must fail to
provide for the protections of a judicial trial. (Selective Service v.
Minn. Public Int. Res. Gp. (1984) 468 U.S. 841, 847 (Selective
Service).)
Initially, the State argues that Assembly Bill 1936 is not a
bill of attainder because it does not single out a particular person
or class for punishment as that term has been interpreted under
the federal Constitution. The individual plaintiffs argue that
Assembly Bill 1936 identifies S.C. Hastings by name and
“sufficiently identifies them as his ‘heirs or representatives’ for
the purpose of subjecting them to punishment—namely, by
removing their family name from the College and eliminating
their privileged status vis-à-vis the hereditary Board seat.”
Assuming, without deciding, that the individual plaintiffs
make up an identifiable class, the demurrer was properly
sustained because the bill does not punish plaintiffs within the
meaning of the bill of attainder clause. (See Kaspersky Lab, Inc.
v. United States Dep’t of Homeland Sec. (D.D.C. 2018)
311 F.Supp.3d 187, 206 [“Many laws apply with specificity. It is
the inflicting of ‘punishment’ that is the ‘principal touchstone’ of
a bill of attainder”].)
13
“ ‘Historically, [a bill of attainder] involved the punishment
of death legislatively imposed, but by judicial construction in the
United States, the Bill of Attainder Clause also prohibits a “bill of
pains and penalties” by which lesser punishment (banishment,
punitive seizure of property, imprisonment, etc.) is legislatively
imposed on a particular individual or class.’ ” (Alpha Standard,
supra, 118 Cal.App.3d at p.189.) Forbidden legislative
punishment, however, “is not involved merely because the Act
imposes burdensome consequences.” (Nixon v. Administrator of
General Services (1977) 433 U.S. 425, 472 (Nixon).)
“In deciding whether a statute inflicts forbidden
punishment,” the Supreme Court has “recognized three necessary
inquiries: (1) whether the challenged statute falls within the
historical meaning of legislative punishment [the Historical
Test]; (2) whether the statute, ‘viewed in terms of the type and
severity of burdens imposed, reasonably can be said to further
nonpunitive legislative purposes’ [the Functional Test]; and
(3) whether the legislative record ‘evinces a congressional intent
to punish’ [the Motivational Test].” (Selective Service, supra,
468 U.S. at p. 852; Legislature v. Eu (1991) 54 Cal.3d 492, 526.)
These three tests are each “independent—though not necessarily
decisive—indicator[s] of punitiveness.” (Foretich v. United States
(D.C. Cir. 2003) 351 F.3d 1198, 1218 (Foretich).) Assembly
Bill 1936 does not qualify as a bill of attainder under any of these
tests.
14
1.
“Traditionally, bills of attainder sentenced the named
individual to death, imprisonment, banishment, the punitive
confiscation of property by the sovereign, or erected a bar to
designated individuals or groups participating in specified
employments or vocations.” (SeaRiver Maritime Financial
Holdings Inc. v. Mineta (9th Cir. 2002) 309 F.3d 662, 673.) The
removal of the Hastings name from the College and the
elimination of the hereditary board seat do not fall within those
categories. Plaintiffs argue that “the legislative confiscation of
property or vested rights with attendant consequences for the
descendants of the attainted person falls squarely within the
historical meaning of punishment,” but our discussion in section I
above rejects the premise on which this argument is based—that
S.C. Hastings or the individual plaintiffs had a vested interest in
the name of the College or in a reserved seat on its board.
Because we disagree that Assembly Bill 1936 works any
confiscation of property or interferes with any vested right, we do
not see it as analogous to historical punishments that did so,
including the “corruption of blood,” which prevented heirs from
inheriting the attainted person’s property. (See United States v.
Brown (1965) 381 U.S. 437, 441; Nixon, supra, 433 U.S. at p. 473,
fn. 35.)
Plaintiffs further argue that the bill “marks S.C. Hastings
and his descendants with a brand of infamy—a traditional form
of reputational punishment ‘particularly susceptible to
invalidation as a bill of attainder,’ and declares their actual or
15
perceived wealth as stemming from the seizure of land through
genocidal mass murder.”7 But the bill imputes no blame to any of
S.C. Hastings’s descendants for his conduct with respect to
California tribes. It does not directly or implicitly impugn their
character. We see no basis to conclude that the bill causes the
individual plaintiffs reputational harm.
As to S.C. Hastings himself, we note first that he died
generations ago and is therefore not a party to this lawsuit.
Plaintiffs argue that, as his living descendants, they have
standing to seek relief from a bill of attainder against him, but
their complaint does not allege that they are acting in any
capacity other than as individuals or that they are bringing this
claim on his behalf. Moreover, we have concluded above that
Assembly Bill 1936 does not take their property, interfere with
their rights, or damage their reputations. Plaintiffs’ effort to
liken themselves to heirs disinherited by the “corruption of blood”
and to claim standing on that basis is not persuasive.
7 In their opening brief, plaintiffs argue that the bill
“requir[es] a biannual ‘reading of an annual statement of the
history of atrocities committed by S.C. Hastings against the Yuki
people,’ ” but their complaint did not challenge this provision as a
bill of attainder. Moreover, the quoted provision imposes no
requirement but is phrased as a “request” to the College’s board.
The complaint did allege that certain legislative findings
constituted a bill of attainder, but the cause of action was not
focused on reputational harms, alleging simply that “[a] dispute
has arisen among the Parties concerning whether AB 1936’s
removal of ‘Hastings’ from the name of the College and removal
of S.C. Hastings’ family’s hereditary seat on the Board violates
the prohibition against bills of attainder.”
16
But even putting aside the threshold problem of whether a
claim as to S.C. Hastings has been or could have been asserted by
the individual plaintiffs here, we are not convinced that
Assembly Bill 1936 falls within the historical meaning of
legislative punishment even as to him. Plaintiffs rely on
Foretich, supra, 351 F.3d 1198, which concerned a statute
“embodying a congressional determination that [the plaintiff] is a
child abuser and a danger to his own daughter,” and preventing
him from securing visitation with her without first obtaining his
wife’s consent. (Id. at pp. 1213, 1204.) Foretich does contain the
language plaintiffs quote—that “the early cases also demonstrate
that a statute will be particularly susceptible to invalidation as a
bill of attainder where its effect is to mark specified persons with
a brand of infamy or disloyalty” (id. at p. 1219)—but it cited for
that proposition the Supreme Court’s observation that bills of
attainder included “legislative enactment[s] barring designated
individuals or groups from participation in specified
employments or vocations, a mode of punishment commonly
employed against those legislatively branded as disloyal.”
(Nixon, supra, 433 U.S. at p. 474.) The court’s conclusion in
Foretich was equivocal: The challenged statute, “while not
squarely within the historical meaning of legislative punishment,
is not dissimilar to the types of burdens traditionally recognized
as punitive.” (Foretich, at p. 1220.)
Moreover, even that conclusion reflected the statute’s
pairing of the “opprobrium of being branded a criminal child
abuser” with the “deprivation of parental rights.” (Foretich,
17
supra, 351 F.3d at p. 1220.) Plaintiffs have not identified a
historical bill of attainder the only effect of which was to impose
reputational harm—still less to do so on a person long since
deceased. (Cf. id. at p. 1211 [“As Dr. Foretich detailed in the
unrefuted affidavit submitted to the District Court, passage of
the Act led to harassment by the media, estrangement from his
neighbors, and loss of business and professional opportunities”].)
Accordingly, plaintiffs have not shown that Assembly Bill 1936
imposes something akin to a punishment historically associated
with bills of attainder.
2.
Turning to the functional test, the question is “whether the
law under challenge, viewed in terms of the type and severity of
burdens imposed, reasonably can be said to further nonpunitive
legislative purposes.” (Nixon, supra, 433 U.S. at pp. 475–476;
Alpha Standard, supra, 118 Cal.App.3d 185, 191 [under this test
“ ‘we are looking for a “legitimate legislative purpose” to justify
the burden placed on a particular class” ’ ”].) “Courts have
conducted this inquiry by examining both the purported ends of
contested legislation and the means employed to achieve those
ends.” (Foretich, supra, 351 F.3d at pp. 1221, 1222 [“there must
be a nexus between the legislative means and legitimate
nonpunitive ends”].)
Here, the legislative findings indicate that Assembly
Bill 1936 was enacted to address the injustice inflicted on the
Yuki people and the Native American people of the state and to
begin the healing process for the crimes of the past. (Stats. 2022,
18
ch. 478, § 1(u).) The means imposed—changing the name of the
College and removing the hereditary board seat—have a “rational
connection” (Foretich, supra, 351 F.3d at p. 1221) to that aim.
The name and hereditary board seat perpetuate the association
between the College (a public institution with a mission to serve
the public interest) and S.C. Hastings, an association the College
and Legislature sought to sever in light of their conclusions about
S.C. Hastings’s “significant responsibility” for the harms
inflicted. (Stats. 2022, ch. 478, § 1(s).) The purpose of severing
that association, however, was not to punish S.C. Hastings or his
descendants but “to address the needs of the current generation
of Yuki Tribal members and the College’s legal community.” (Id.,
§ 1(n).)
The bill’s reference to “crimes of the past” is not, as
plaintiffs suggest, “an unequivocal admission of its punitive
intent and effects.” The bill does find S.C. Hastings
blameworthy, but it is not like the statute in Foretich, which
adjudged Dr. Foretich a child abuser after the courts consistently
found his wife’s allegations unproven, and changed the law to
deny him visitation with his daughter. (Foretich, supra, 351 F.3d
at pp. 1203–1204.) S.C. Hastings died more than 130 years
before Assembly Bill 1936 was enacted. The Legislature’s
findings are a reappraisal—highly critical, to be sure—of a
historical public figure. He is not and cannot be subjected to
punishment by it.
Although plaintiffs characterize the legislation as a
“gratuitous besmirching of the Hastings’ family legacy,” they do
19
not meaningfully address “the magnitude of the burden relative
to the purported nonpunitive purposes of the statute.” (Foretich,
supra, 351 F.3d at p. 1222.) The bill imposes no burdens on
S.C. Hastings himself and, contrary to plaintiffs’ argument, it
does not impugn his descendants. The most that can be said is
that there is no longer a board seat reserved for an heir or
representative of S.C. Hastings, but plaintiffs do not offer any
argument that this change constitutes a severe burden, and they
do not dispute that the individual plaintiffs remain free to seek
consideration for any seat on the board. Their continued
eligibility to serve demonstrates that Assembly Bill 1936 does not
deem them tainted by any relation to S.C. Hastings. It is the
reservation of a board seat for an heir or representative of
S.C. Hastings that, along with the name, publicly signifies the
association between him and the College, and is what the bill
seeks to end. Accordingly, we do not find the bill punitive under
the functional test.
3.
“The final test of legislative punishment is ‘strictly a
motivational one: inquiring whether the legislative record
evinces a [legislative] intent to punish.’ [Citation.] Under this
prong, a court must inspect legislation for a congressional
purpose to ‘encroach[ ] on the judicial function of punishing an
individual for blameworthy offenses.’ [Citation.] Courts conduct
this inquiry by reference to legislative history, the context or
timing of the legislation, or specific aspects of the text or
structure of the disputed legislation.” (Foretich, supra, 351 F.3d
20
at p. 1225.) As indicated in our discussion above, we do not find a
legislative intent to punish either S.C. Hastings or the individual
plaintiffs. A legislative finding of historical wrongdoing as part of
an effort to promote restorative justice is not the equivalent of
punishing the wrongdoer, let alone his heirs.
Plaintiffs do not discuss the timing of the legislation, but
again, the interval of more than 130 years between the death of
S.C. Hastings and the enactment of Assembly Bill 1936 renders
improbable the existence of a motive to punish him. There is also
nothing in the legislation to indicate that it was enacted in
response to anything purportedly done or said by his
descendants, including the individual plaintiffs. Plaintiffs’
suggestion that “the express legislative intent” of
Assembly Bill 1936 included securing ‘[a]n apology from . . .
S.C. Hastings [sic] family’ ” is not supported by the record.
Plaintiffs cite committee bill analyses that indicate that
Assembly Bill 1936, as proposed, expressed the Legislature’s
intent to ensure that the College obtain an “apology from the
College, the S.C. Hastings family, and all of those associated with
the genocide of the Yuki people.” This provision, however, was
not included in the final bill. As enacted, the bill states that “[i]t
is the intent of the Legislature to ensure that the College” engage
in several identified restorative justice measures and make “[a]n
annual apology on a date to be determined by the Round Valley
Indian Tribes, a federally recognized tribal government, its
designees of the Yuki Indian Committee, and the College to attest
21
to and acknowledge the social justice components achieved and
ongoing efforts.” (Stats. 2022, ch. 478, § 2(b)(19).)
Lastly, plaintiffs repeat their argument that the
elimination of the hereditary board seat has “no apparent
purpose other than to penalize S.C. Hastings’ descendants,
simply because of their shared genetic material.” As we have
discussed, plaintiffs have not shown that the elimination of the
board seat imposes any significant burden on them, let alone
punishment, and it serves the remedial purpose of severing the
association between the College and a historical figure who the
Legislature concluded caused grievous harm to the Yuki people
and the Native American people of the state. The Legislature’s
desire “to address the needs of the current generation of Yuki
Tribal members and the College’s legal community” (Stats. 2022,
ch. 478, § 1(n)) is not a punitive motivation.
For all of these reasons, we conclude that
Assembly Bill 1936 is not a bill of attainder.
B.
“Article I, section 10, clause 1 of the federal Constitution
and article I, section 9 of the state Constitution prohibit the
passage of ex post facto laws. [Citation.] California’s ex post
facto law is analyzed in the same manner as the federal
prohibition. [Citation.] ‘[T]he ex post facto clauses of the state
and federal Constitutions are “aimed at laws that ‘retroactively
alter the definition of crimes or increase the punishment for
criminal acts.’ ” ’ ” (People v. Alford (2007) 42 Cal.4th 749, 755.)
22
The individual plaintiffs challenge the court’s ruling on the
demurrer to this cause of action solely in a footnote. They argue:
“Setting aside [Assembly Bill] 1936’s unfounded accusations
regarding murder and genocide, the remaining accusations about
S.C. Hastings are limited to his petitioning the State for the
formation of a militia—an action that was legal at the time and
amounts to an exercise of Hastings’s fundamental right to
petition, which is protected by the First Amendment to the
U.S. Constitution. To the extent [Assembly Bill] 1936 seeks to
retroactively criminalize S.C. Hastings’ petitioning or other
lawful activities, [Assembly Bill] 1936 also violates, at a
minimum, the Ex Post Facto Clause.”
Putting aside whether this footnote is sufficient to assert a
challenge to the court’s ruling on this cause of action (see Golden
Door Properties, LLC v. County of San Diego (2020)
50 Cal.App.5th 467, 554–555), the court properly sustained the
demurrer. Generally, both the federal and state constitutional
prohibitions on ex post facto laws apply only to criminal statutes.
(Armijo v. Miles (2005) 127 Cal.App.4th 1405, 1419.) A civil
statute may be found to violate the ex post facto clause only “ ‘if it
is “ ‘so punitive either in purpose or effect as to negate [the
State’s] intention’ to deem it ‘civil.’ ” ’ ” (Coats v. New Haven
Unified School Dist. (2020) 46 Cal.App.5th 415, 425 [“ ‘Only the
“clearest proof” will suffice to override the Legislature’s stated
intent and render a nominally civil statute penal for ex post facto
purposes’ ”].) Assembly Bill 1936 does not meet this standard.
23
III.
Article IX, section 9, subdivision (a) of the California
Constitution provides in pertinent part: “The University of
California shall constitute a public trust, to be administered by
the existing corporation known as ‘The Regents of the University
of California,’ with full powers of organization and government,
subject only to such legislative control as may be necessary to
insure the security of its funds and compliance with the terms of
the endowments of the university and such competitive bidding
procedures as may be made applicable to the university by
statute for the letting of construction contracts, sales of real
property, and purchasing of materials, goods, and services.”
Subdivision (f) further provides: “[The Regents] shall also have
all the powers necessary or convenient for the effective
administration of its trust . . . . 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.” These constitutional “limitations
upon the Legislature’s power to change the form of government of
the university, or to interfere with its internal affairs, apply with
equal force to the Legislature’s power to affect the internal affairs
or form of government of [the College].” (Coutin v. Lucas (1990)
220 Cal.App.3d 1016, 1024 (Coutin).)
Plaintiffs assert that Assembly Bill 1936’s changes to the
College’s name and governance structure are politically
motivated and violate article IX, section 9, subdivision (f) of the
California Constitution. The State argues, and we agree, that
24
plaintiffs’ claim fails because the College’s current Board invited
the changes.
The requirement that the College be “kept free” of “political
and sectarian influence” operates to protect the independence of
the College from state government interference. (San Francisco
Labor Council v. Regents of University of California (1980)
26 Cal.3d 785, 788–789 [“ ‘ “[The] power of the Regents to
operate, control, and administer the University is virtually
exclusive. . . .” ’ ”]; People v. Lofchie (2014) 229 Cal.App.4th 240,
254 [“The purpose of designating the University as a public trust
was to insulate it from state government, ensuring that the
University and its faculty would be ‘entirely independent of all
political or sectarian influence.’ ”]; Coutin, supra, 220 Cal.App.3d
at p. 1024 [describing constitutional provision as limiting
“Legislature’s power to change the form of government of the
university, or to interfere with its internal affairs”].) Plaintiffs
have not cited any authority suggesting that this provision
prohibits the Board from making decisions regarding the College
that are allegedly based on “political or sectarian whim,” or
prohibits the State from enacting Legislation at the request of the
Board.
Plaintiffs’ citation to the historic language of article IX,
section 9, subdivision (f) of the California Constitution is
misplaced. Prior to 1918, article IX, section 9, read in relevant
part, “The University of California shall constitute a public trust,
and its organization and government shall be perpetually
continued in the form and character prescribed by the organic act
25
creating the same . . . .” (Italics added.) The italicized language
was interpreted by the California Supreme Court to prevent the
Legislature from altering the composition of the College’s Board.
(People v. Kewen (1886) 69 Cal. 215, 216.) This language was
eliminated in 1918. The purported “twofold purposes of the
amendment” were “[t]o permit the adaptation of the details of the
internal organization of the university to meet modern-day
requirements” and “to give to the alumni of the university direct
representation on the governing body of the university.” (Coutin,
supra, 220 Cal.App.3d at pp. 1022–1023.) Plaintiffs argue that
the 1918 amendment was not intended to “diminish the Board’s
constitutional obligation to refrain from changing the College’s
form or character” and that “Section 9 is still intended to
safeguard changes to ‘form and character’ especially when based
on political or sectarian whim.” We disagree.
Contrary to plaintiffs’ argument, the amendment quite
clearly affected a significant change in the statute: “[B]y deleting
that portion of article IX, section 9, that required the
organization and government of the university to be perpetually
continued in the form prescribed by its Organic Act, the
amendment rendered the provisions of the Hastings Act (as
codified in the Political Code and subsequently in the Education
Code) subject to modification.” (Coutin, supra, 220 Cal.App.3d at
p. 1023.) Thus, nothing in the provision, as it now reads,
prohibits the Board from making, or to the extent necessary,
requesting from the Legislature, changes to the provisions of the
Act, now codified in the Education Code. Accordingly, the
26
provision of Assembly Bill 1936 that changed the name of the
College at the request of the Board did not violate article IX of
California Constitution.
As plaintiffs argue, this reasoning does not necessarily
resolve the dispute about the provision eliminating the
hereditary seat because no such request was expressly made by
the Board. The State responds, “That the [B]oard’s focus was on
removing ‘Hastings’ from the name of the College—rather than
converting the designated board seat (itself an unusual feature
for a public institution)—does not alter that the College [B]oard
‘was the impetus’ behind the changes accomplished by [Assembly
Bill] 1936.” We agree with the State.
The resolution adopted by the Board, which directed the
Chancellor and the Dean to pursue legislation changing the
College’s name, makes clear that the separation of the Hastings
name from the college was “vital” to the “process of reconciliation
between the College and members of the affected Tribes.”
Changing the name of the College, however, was not the singular
focus of the resolution. Rather, the Board indicated that the
ultimate objective of substantive restorative justice would require
other additional efforts. The elimination of the hereditary board
seat is entirely consistent with the Board’s resolution. Although
framed as an issue of standing, which we need not reach, College
Defendants reasonably assert that plaintiffs “have no business
attempting to enforce the Board’s right [to be free of political or
sectarian influence] against the Board itself.”
27
IV.
State common law and Code of Civil Procedure section 526a
authorize taxpayers to sue to enjoin the State from carrying on
any unlawful actions. (See, e.g., Weatherford v. City of
San Rafael (2017) 2 Cal.5th 1241, 1249.) Title 42 of United
States Code, section 1983, provides a cause of action against any
person acting under color of state law who deprives another’s
rights guaranteed by the United States Constitution, including
the right not to have a state impair its obligations of contract.
(Southern California Gas Co. v. City of Santa Ana (9th Cir. 2003)
336 F.3d 885, 886–887.)
Plaintiffs acknowledged that their claims based on the
above authority are “derivative” of the claims discussed in the
preceding sections. Because we have upheld the court’s rulings
on the underlying causes of action, the court’s order sustaining
the demurrers to the derivative causes of action must be upheld
as well.
DISPOSITION
The judgment is affirmed. Respondents are entitled to
recover their costs.
GOLDMAN, J.
WE CONCUR:
BROWN, P. J.
CLAY, J. *
*Judge of the Alameda Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
28
Trial Court: Superior Court of the City and County of
San Francisco
Trial Judge: Honorable Richard B. Ulmer
Counsel for Plaintiffs and Michael Yamamoto, Gregory R. Michael,
Appellants: Dorothy Yamamoto
Dhillon Law Group Inc., Harmeet
Dhillon, Mark P. Meuser, Karin
Sweigart
Counsel for College Defendants Wilkie Farr & Gallagher, Cooley,
and Respondents: Benedict Y. Hur, Eduardo E. Santacana,
Joshua D. Anderson
Counsel for State of California Rob Bonta
Defendant and Respondent: Attorney General of California
Tamar Pachter
Senior Assistant Attorney General
Lisa W. Chao
Supervising Deputy Attorney General
Kara Siegel
Deputy Attorney General
29