Panel’s split on Washington Court of Appeals ruling reflects different approaches to dealing with racial restrictive covenants in property records

Although covenants restricting the sale of property to whites only have been illegal since a 1948 United States Supreme Court ruling and federal and state laws, these covenants continue to lurk in property records for countless numbers of people. properties in Washington and across the country. A provision added to Washington’s anti-discrimination law in 1987 provided for the filing of a lawsuit to remove racial discriminatory provisions from real estate documents. The wording of this 1987 provision had not been tested until a shared decision on February 23, 2021 by the Third Division of the Washington Court of Appeals (covering eastern Washington). According to two of the three judges of May vs. Spokane County, the legal reference to “stark” racial discriminatory provisions does not mean the physical and permanent removal of the language and that it suffices for a court order to declare the language removed. A long sustained dissent that more should be needed because “the time has come to tear up, from the pages of official documents, the white inscriptions of supremacy. The time has come to demolish the monuments of slavery and racial segregation displayed in this public square. “

Race-based alliances

The Can concerned a 1953 declaration of protection clauses for a subdivision in Spokane created by William Cowles, Jr., then publisher and co-owner of the Spokane Daily Chronicle and Criticism of the spokesperson newspapers. The alliance declared:

No race or nationality other than the white race can use or occupy a building on a lot, except that this convention does not prevent the occupation by servants of different race or nationality employed by an owner or a tenant.

Such commitments were common in the first half of the 20th century after the United States Supreme Court ruled that municipal zoning laws based on race were unconstitutional. Homeowner groups and developers then turned to registration of restrictions based on race to prevent the integration of neighborhoods. The Federal Housing Authority aided these efforts by passing regulations in the 1930s to compel the registration of racial pacts purported to preserve the value of homes secured by government-guaranteed loans. The decision of the Supreme Court of the United States in 1948 Shelley vs. Kramer declared those alliances unconstitutional, but that apparently did not end the practice, as evidenced by the Cowles’ restrictive pact five years later. The 1968 Federal Fair Housing Act and Washington’s Anti-Discrimination Act, RCW 49.60.222-.226, prohibited discrimination but did not address covenants that still remain in property records.

In a 1987 amendment to the state’s anti-discrimination law, lawmakers provided that an owner, occupant or tenant of property subject to a discriminatory covenant would bring a declaratory judgment action. Under RCW 49.60.227, if a court finds that provisions of the property registers are invalid under the law, it “shall enter an order striking out the invalid provisions from the public registers and eliminating the invalid provisions of the title or title. lease of the property. ” Alternatively, a landlord can register a restrictive agreement amendment document that states: “The referenced original written instrument contains discriminatory provisions that are void and unenforceable under RCW 49.60.224 and federal law. This document removes from the original referenced instrument all provisions that are void and unenforceable by law. “

Alex May owned land on the Cowles Subdivision in Spokane and brought an action for declaratory judgment to have the discriminatory restrictive covenant declared void and struck from the public record by physically altering the registered undertakings of 1953. The trial court dismissed the motion summary judgment of Mr. May on the grounds that RCW 49.60.227 does not require the auditors to remove the void provisions from the public record. The court also ruled that the pact was void, overturned by a court order, and that the auditor should file a copy of the order with the property records. On appeal, two of the three judges on the Third Division committee ruled that the law did not require the physical removal of the offending clause, while a third judge wrote a lengthy dissent arguing that the provision should be physically removed. .

Majority decision

Noting the 30-year existence of the provision and the novelty of the matter, the two judges Can ruled that the legislature intended nothing more than a legal document (either a court order or an amendment filed by the owner) to do the act of “punching” discriminatory language, and that it was not necessary to physically eliminate the language. While the majority said the restrictive racist provisions are offensive, morally reprehensible and repugnant, they asserted: “A policy of laundering public records and erasing historical evidence of racism would be dangerous. It would risk forgetting and ultimately denying the horrific truths of racism and racist housing practices. Such an outcome cannot be aligned with the anti-discrimination objectives of Washington’s anti-discrimination law. “

Dissenting opinion

Justice George Fearing wrote a 25-page dissent which argued that the ordinary meaning of the words “strike” and “elimination” in RCW 49.60.227 “are robust and forceful verbs which convey the idea of ​​suppression, suppression and deportation. The words command an excision of any offensive verbiage from the public record. None of the words suggest obscuring the offending pact by another document which repeats, but declares invalid, the racial restriction. “Due to the statutory directive to remove the pact from public records, dissent said it means” to remove the cancerous pact at its origin. “

The dissent noted that while nothing in the language compels the county auditor to take action, the law does not exclude the auditor’s action. Given that the law cannot be obeyed without the intervention of the auditor and that nothing in the law limits the use of a court order, the dissent rejected the idea that the filing of an order or an amendment was sufficient. “Adorning a skunk in a freshly laundered and precisely ironed T-shirt that reads ‘I AM NO LONGER A FLY’ does not hit or eliminate the skunk stench.”

Cowles’ engagement was particularly troublesome because, as Justice Fearing pointed out, the auditor has no obligation to register an instrument that violates the law. By allowing the Cowles Pact to be recorded five years after the Supreme Court prohibited such provisions, the auditor has effectively flouted the law, which “illustrates the grim reality of Washington officials’ failure to comply with the law. Thirteenth Amendment and African American Race promise from separate locations and lift the race from its subordinate status.

Explaining why the listener should take the unusual and perhaps tedious task of erasing the racial pact from the chain of titles, the dissent referred to studies estimating that racial pacts continue to infect the title of millions of people. American homes. “Whites do not need to take legal action for racial pacts to be declared inapplicable. Caucasians do not have to incur the expense of a lawyer to prepare a document to address racial discrimination that the county auditor should never have allowed in the first place. White Americans do not bear the cost of eradicating the endless burdens of slavery and apartheid. In addition, the presence of the alliance could “subtly encourage some owners to quietly sell only to whites.” Blacks may be reluctant to buy homes in a neighborhood they learn has the scars of a history of racial territoriality. “

And, contrary to the majority’s contention that leaving the pacts on the record served a historically beneficial record of ethnic intolerance, the dissent concluded: “Eradicating the auditors’ records of offensive pacts will not whitewash. the sad truth of American apartheid. Literature, including this legal dissent, will teach generations of our nation’s children about the property restrictions that prevented those with darker skin tones from fully enjoying American prosperity and captured African Americans in a depreciating isolation fence.

The issue of combating the persistent vestiges of discriminatory real estate practices has been the subject of several pieces of legislation by various other legislatures. Oregon’s analogous law, ORS 93.274, provides for a judicial process to obtain a judgment “removing” the part of the provision that violates the legal prohibition on discriminatory clauses, but no court in Oregon has considered this provision. . California law, Government Code §12956.2, simply provides for the registration of a restrictive covenant amendment, which includes a copy of the original document containing the legal covenant. So the Can The case stands out as one of the few judicial interpretations of these statutes, and the use in RCW 42.60.227 of “strike” and “elimination of title” may be unique among these state statutes.

It is not yet clear whether the claimant will seek a review by the state Supreme Court or, if applicable, whether the court will grant a review. But the Can The decision and the long dissent come at a critical time in our country’s long and difficult efforts to remedy decades of discrimination and it would be ripe for consideration.

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