Racial covenants in home titles to remain in public record, Washington Supreme Court rules

OLYMPIA – County auditors cannot remove racial covenants on a home’s title and deed from the public record, the state Supreme Court ruled Thursday.

In a case that started in Spokane County, the court affirmed a lower court ruling in favor of the county, saying that racial covenants, language in home titles that made it illegal for people of color to live there, should remain in the public record.

“We must ensure that future generations have access to these documents because, although the covenants are morally repugnant, they are part of a documented history of disenfranchisement of a people,” Justice G. Helen Whitener wrote in the unanimous opinion. ”It is our history.”

The case started with Alex May, a Spokane homeowner, who wanted the county to remove a covenant on his South Hill home that reads “no race or nationality other than the white race shall use or occupy any building on any lot.”

Spokane County Auditor Vicky Dalton said it was not in her authority to remove it.

The Spokane County Superior Court and a Washington state appeals court both ruled against May, saying the county does not have the authority to remove the provisions.

After the lower court rulings and before the Supreme Court’s oral arguments, the Legislature changed the law surrounding racial covenants. The law allows homeowners to pursue a “judicial remedy” to strike the covenants from the chain of title. However, the law says striking the language should “not prevent preservation of the original record, outside of the chain of title, for historical or archival purposes.”

During oral arguments in October, May’s lawyers argued the new law has confusing language that still does not allow covenants to be eliminated from public record, and it was up to the Supreme Court to order the auditor to strike the language.

Attorneys for the county, on the other hand, say the new law does not give the auditor any expanded power to strike or eliminate covenants, meaning it is up to the court to strike provisions in recorded documents while still keeping them in an archive.

In her opinion, Whitener wrote the Legislature’s intent is clear that there is a judicial process for removing covenants from their title while still keeping them in public record. Removing all trace of the covenants would not follow the Legislature’s intent to eradicate discrimination, Whitener wrote.

“It would destroy only the physical evidence that this discrimination ever existed,” Whitener wrote. “It would be all too easy for future generations to look back at these property records with no physical evidence of the discriminatory covenants and conclude that the covenants never existed at all.”

In the court’s decision, it sends the case back to the trial court to use the new remedy described in the new law passed last session.

Under the judicial remedy, a court can physically redact these racial provisions in deeds and titles. The person who is asking for the remedy can then bring a certified copy of the voided document to the county auditor, who will then record the documents prepared by the court.

The new law requires an image of each corrected document be placed into the public record. The auditor will then update the index of the original document to note that it is no longer the primary official public record and is removed from the chain of title.

The original document should then be separately maintained in the county’s records and, under the auditor’s discretion, can be transferred to the secretary of state archives for historical purposes.

Homeowners who go through this process will no longer see the covenants on their chains of title, Dalton said. But it allows researchers or historians to still have access to them, if they want to learn more about the covenants or other forms of discrimination.

The Spokane case will likely be the first in Washington to go through this new process, said Dalton, who helped write the new judicial process. Washington is also one of the first states to have laid out this process.

“This is really exciting because this is the case that’s going to help us test all those steps out,” Dalton told The Spokesman-Review.

Dalton said the process will help future generations see what discriminatory practices happened in the past and help them understand the “pain and disadvantage that these kinds of actions inflicted on people.”

“What it boils down to is, this is our history, and it should not and cannot be destroyed,” Dalton said.

During oral arguments, Yajaira Lujano, a Gonzaga University law clinic intern representing May, said the language in these covenants is “viscerally offensive” and prevents a homeowner from fully enjoying their property.

Lujano said removing the language in the deed would not remove the memory of the racism associated with it.

“I don’t think this instance of racism will be forgotten anytime soon,” she said. “We’re still feeling the very real effects of it to this day.”