In re That Portion of Lots 1 & 2 ( 2022 )

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE MARCH 31, 2022
SUPREME COURT, STATE OF WASHINGTON
MARCH 31, 2022
ERIN L. LENNON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of )
)
That Portion of Lots 1 & 2, Block 1, ) No. 99598-2
Comstock Park Second Addition,
)
According to Plat Recorded in Volume 2 En Banc
of Plats, Page 84, Situate in the City And )
County of Spokane, Washington, Lying )
Easterly of the Following Described Line: )
Beginning at the Northwest Corner of Said ) Filed
Lot 1; Thence N89°59'27"E, Along the )
North Line of Said Lot 1, 11.00 Feet; March 31, 2022
_______________
)
Thence S09°39' 47'W, Generally Along a
6.0° Foot Board Fence, to the South Line
)
of Said Lot 2 and the Point of Terminus; )
Except a Portion Thereof Described as )
Follows: Beginning at the Southeast Corner )
of Said Lot 2; Thence Southwesterly Along )
the Southerly Line of Said Lot 2 to the )
Southwest Corner Thereof; Thence
)
Northerly Along the Westerly Line of Said
Lot 2 A Distance of 38.0 Feet; Thence )
Northeasterly to the Point of Beginning; )
)
ALEX MAY, owner of said property, )
)
Petitioner, )
v. )
)
SPOKANE COUNTY, necessary party; )
and VICKY DALTON, SPOKANE )
COUNTY AUDITOR, in her official )
capacity, necessary party,
)
)
Respondents.
)
In re That Portion of Lots 1 & 2, No. 99598-2
WHITENER, J.—This case involves the delicate balance required in
addressing the elimination of morally repugnant covenants and the preservation of
the documented history of disenfranchisement of a people. RCW 49.60.227 permits
a court to strike a racially restrictive, legally unenforceable covenant from the public
records and eliminate the covenant from the title. This case concerns what, under the
statute, striking from the public records and eliminating from the title means and
whether a court order declaring the covenant struck and void is all that is required or
allowed.
Alex May sought a declaratory action under former RCW 49.60.227 (2006)
to have a racially restrictive covenant voided and physically removed from the title
to his property and from the public records. Both the trial court and the Court of
Appeals concluded that the statute at issue does not allow the physical removal of
the covenant from the title but, instead, allows only for an order voiding the covenant
to be filed with the title. In the interim, the legislature amended RCW 49.60.227,
clarifying the procedure under which these covenants are struck and eliminated.1 See
LAWS OF 2021, ch. 256.
We hold that the interim amendments in Laws of 2021, chapter 256, section
4 apply, and therefore we need not address the statute under which May initially
1
The amendments to RCW 49.60.227 are in effect. However, to avoid confusion, we refer
to the iteration of the statute that May brought his case under as RCW 49.60.227, and the
amendments to the statute as Laws of 2021, chapter 256.
2
In re That Portion of Lots 1 & 2, No. 99598-2
sought to have the covenants removed. Accordingly, we remand to the trial court for
relief under Laws of 2021, chapter 256, section 4.
FACTS AND PROCEDURAL HISTORY
In 1953, William H. Cowles Jr. and John McKinley, as executors of the estate
of William H. Cowles Sr., filed a declaration of protective covenants for the lots they
still owned in the Comstock Park Second Addition. Covenant subsection (c) reads,
“No race or nationality other than the white race shall use or occupy any building on
any lot, except that this covenant shall not prevent occupancy by domestic servants
of a different race or nationality employed by an owner or tenant.” Clerk’s Papers
(CP) at 34.
In 2013, Katherine Gregory owned the property at issue in this case, located
in the Comstock Park Second Addition. She conveyed the property by statutory
warranty deed to Aaron and Sadie Lake. The property was conveyed subject to
[c]ovenants, conditions, restrictions and/or easements; but deleting any
covenant, condition or restriction indicating a preference, limitation or
discrimination based on race, color, religion, sex, handicap, family
status, or national origin to the extent such covenants, conditions or
restrictions violate Title 42, Section 3604(c), of the United States
Codes: Recorded: August 14, 1953. Recording Information:
189339B[.]
Id. at 63. Gregory’s declaring the covenant void in the sale did not physically remove
it from the public records.
3
In re That Portion of Lots 1 & 2, No. 99598-2
In September 2017, Alex May and his wife, Alexandra May, bought the
property from the Lakes. They bought it “subject to covenants, conditions,
restrictions and easements, if any, affecting title, which may appear in public record,
including those shown on any recorded plat or survey.” Id. at 38.
On March 22, 2018, May filed a complaint for declaratory relief against
Spokane County seeking to have the racially restrictive covenant voided under RCW
49.60.224,2 and “to strike that same subsection from public record and eliminating
it from the title of the property” under RCW 49.60.227. Id. at 3. The parties later
stipulated to adding Spokane County Auditor Vicky Dalton as a necessary party.
In March 2019, May moved for summary judgment asking the court “to issue
a declaratory judgment finding Subsection C of the real property restrictive covenant
2
RCW 49.60.224 reads,
(1) Every provision in a written instrument relating to real property which purports
to forbid or restrict the conveyance, encumbrance, occupancy, or lease thereof to
individuals of a specified race, creed, color, sex, national origin, citizenship or
immigration status, sexual orientation, families with children status, honorably
discharged veteran or military status, or with any sensory, mental, or physical
disability or the use of a trained dog guide or service animal by a person who is
blind, deaf, or physically disabled, and every condition, restriction, or prohibition,
including a right of entry or possibility of reverter, which directly or indirectly
limits the use or occupancy of real property on the basis of race, creed, color, sex,
national origin, citizenship or immigration status, sexual orientation, families with
children status, honorably discharged veteran or military status, or the presence of
any sensory, mental, or physical disability or the use of a trained dog guide or
service animal by a person who is blind, deaf, or physically disabled is void.
(2) It is an unfair practice to insert in a written instrument relating to real
property a provision that is void under this section or to honor or attempt to honor
such a provision in the chain of title.
4
In re That Portion of Lots 1 & 2, No. 99598-2
created on August 12, 1953 void by reason of RCW 49.60.224 and issue an order
striking Subsection C from the public record and eliminating the provision from the
property’s title.” Id. at 23-24; see id. at 34-36.
Spokane County and Dalton opposed the motion on multiple grounds, but they
acknowledged that there was no dispute that the covenant in this case is void and
unenforceable under RCW 49.60.224. However, they argued that seeking an order
requiring the physical alteration of the original title document would force Dalton to
violate her duties as an auditor, that no statute authorizes auditors to alter the prior
documents, that May did not have standing because of Gregory’s deleting the
covenants when she conveyed the property to the Lakes, and that “[t]he appropriate
manner to force an elected officer to act is through a Writ [of Mandamus].” Id. at
46-50.
The trial court granted May’s motion for summary judgment in part and
denied it in part. The trial court held that under RCW 49.60.224 the racially
restrictive covenant is void and struck the covenant under RCW 49.60.227. The trial
court denied May’s “request for an order directing the Spokane County Auditor to
eliminate Subsection (c) of the 1953 Declaration of Protective Covenants from the
public record or to otherwise alter existing documents.” Id. at 85. The court found
that Alex May was the only necessary party under the statute. Id. at 84. Further, that
“[t]he plain language of RCW 49.60.227 creates no duty for county auditors to
5
In re That Portion of Lots 1 & 2, No. 99598-2
remove void provisions from the public record or otherwise alter existing records
and provides no authority for the Court to order the Spokane County Auditor to take
such action.” Id. The court also ordered that “[a] copy of this order may be filed with
the Spokane County Auditor on the property records for the impacted property.” Id.
at 85.
May appealed. In a split opinion, the Court of Appeals, Division Three,
affirmed the trial court and held that an order striking a void covenant is self-
executing and that “[w]hile the order should be included as part of the official
property record, there is no additional need to physically alter existing records.” May
v. Spokane County, 16 Wn. App. 2d 505, 516, 481 P.3d 1098 (2021).
Judge George Fearing vehemently disagreed. He saw the majority’s reading
of the law to ignore the plain language of the statute and favor archival purposes
over destroying a remnant of slavery, racism, and white supremacy. See generally
id. at 516-36 (Fearing, J., dissenting). May again appealed, and this court granted
review. 3 197 Wn.2d 1016 (2021).
During the 2021 legislative session, between the release of the Court of
Appeals opinion in this case and our granting review, the legislature amended RCW
3
The Carl Maxey Center filed an amicus brief in support of May’s petition for review. In
addition, there are two amicus briefs in this case that support May’s view of the law. One is
submitted by University of Washington law professors Karen Boxx and Gregory Hicks and the
other by the Washington State Association for Justice Foundation.
6
In re That Portion of Lots 1 & 2, No. 99598-2
49.60.227 and explicitly set forth the procedure for this judicial remedy. See LAWS
OF 2021, ch. 256.
BACKGROUND ON RACIALLY DISCRIMINATORY COVENANTS
Racially restrictive covenants have been the subject of litigation since at least
1892. Michael Jones-Correa, The Origins and Diffusion of Racial Restrictive
Covenants, 115 POL. SCI. Q. 541, 548 (2000); see Gandolfo v. Hartman, 49 F. 181(C.C.S.D. Cal. 1892) (concerning racially restrictive covenant against Chinese
immigrants). Beyond that, we know relatively little about their origins and spread.
Jones-Correa, supra, at 541.
In Buchanan v. Warley, 245 U.S. 60, 70-71, 82, 38 S. Ct. 16, 62 L. Ed. 149(1917), the United States Supreme Court held that a racial zoning ordinance that
restricted people of color from moving to a block that did not have a majority of
residences occupied by other people of color, and the same racially based restrictions
for white people, was unconstitutional. The ordinance interfered with “the right to
acquire, use, and dispose of [property].” Id. at 74.
“Historians tie the surge in popularity of racially restrictive covenants to the
[Buchanan] decision that municipally mandated racial zoning was unconstitutional.”
Nancy H. Welsh, Racially Restrictive Covenants in the United States: A Call to
Action, 12 AGORA J. OF URB. PLAN. & DESIGN 130, 134 (2018) (citing RICHARD
ROTHSTEIN, THE COLOR OF LAW 48 (2017)). At this time of suburban development,
7
In re That Portion of Lots 1 & 2, No. 99598-2
“community builders sought more secure means to protect their investment from the
‘economic threat’ of racial mixing,” and racially restrictive covenants were a way of
circumventing Buchanan. Id. (citing ROTHSTEIN, supra, at 48).
In 1926, the Supreme Court heard Corrigan v. Buckley, 271 U.S. 323, 46 S.
Ct. 521, 70 L. Ed. 969 (1926). In that case, a group of white people collectively
agreed to record a covenant for their properties that prohibited Black persons from
occupying or using the property and prohibited white owners from selling, leasing,
or giving the property to Black persons. Id. at 327. The Supreme Court ultimately
held the covenants were not subject to constitutional regulation as contracts between
private individuals and dismissed the case for lack of jurisdiction. Id. at 331-32.
In 1948, in Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161(1948), the Supreme Court held that racially restrictive covenants were
unenforceable. In doing so, the Court held,
We conclude, therefore, that the restrictive agreements standing
alone cannot be regarded as violative of any rights guaranteed to
petitioners by the Fourteenth Amendment [to the United States
Constitution]. So long as the purposes of those agreements are
effectuated by voluntary adherence to their terms, it would appear clear
that there has been no action by the State and the provisions of the
Amendment have not been violated.
Id. at 13. However, the Court held that this case included seeking enforcement of the
covenants and, thus, included state action and, therefore, it did implicate the
8
In re That Portion of Lots 1 & 2, No. 99598-2
Fourteenth Amendment. Id. at 18-19. Accordingly, the covenants were held to be
unenforceable, but not illegal.
“Notwithstanding this landmark decision, racially restrictive covenants
continued to proliferate.” Welsh, supra, at 136. It was not until 1968, under the
federal Fair Housing Act of 1968, 42 U.S.C. §§ 3601-3619, that writing these
covenants into deeds became illegal. Id. But owners and occupants, like May, are
frequently left with racist covenants not only in their own title but also throughout
the chains of title to their properties.
ANALYSIS
I. Standard of Review and Background Principles
May contends that this case concerns the refusal to consider a declaratory
action and is, therefore, reviewed for abuse of discretion. Br. of Appellant at 4
(Wash. Ct. App. No. 37179-4-III (2020)) (“This court reviews ‘a trial court’s refusal
to consider a declaratory judgment action for abuse of discretion.’” (quoting Kitsap
County v. Smith, 143 Wn. App. 893, 902, 180 P.3d 834 (2008))).
However, as Spokane County observes, May is appealing from the denial of
a summary judgment motion. When reviewing a summary judgment order de novo,
“[w]e engage in the same inquiry as the superior court,” Lakehaven Water & Sewer
Dist. v. City of Federal Way, 195 Wn.2d 742, 752, 466 P.3d 213 (2020).
9
In re That Portion of Lots 1 & 2, No. 99598-2
As this case raises the issue of how to interpret RCW 49.60.227, we review
questions of statutory interpretation de novo. Dep’t of Ecology v. Campbell &
Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). “The court’s fundamental objective
is to ascertain and carry out the Legislature’s intent, and if the statute’s meaning is
plain on its face, then the court must give effect to that plain meaning as an
expression of legislative intent.” Id. at 9-10. We discern the plain meaning from “all
that the Legislature has said in the statute and related statutes.” Id. at 11.
II. The Washington Law Against Discrimination (WLAD)
Chapter 49.60 RCW was enacted as “a broad remedial statute evidencing the
Legislature’s desire to confront many forms of discrimination.” Bennett v. Hardy,
113 Wn.2d 912, 927, 784 P.2d 1258 (1990). Known as the WLAD, the legislature
enacted the chapter, finding that “discrimination threatens not only the rights and
proper privileges of its inhabitants but menaces the institutions and foundation of a
free democratic state.” RCW 49.60.010. The chapter also created an agency “with
powers with respect to elimination and prevention of discrimination . . . in real
property transactions because of race . . . .” Id. “The provisions of this chapter shall
be construed liberally for the accomplishment of the purposes thereof.” RCW
49.60.020.
10
In re That Portion of Lots 1 & 2, No. 99598-2
III. RCW 49.60.227 and Its Amendments
In 1969, the legislature enacted RCW 49.60.224 and declared that racially
(and otherwise) discriminatory covenants are void. In 1987, the legislature passed
what would become the first iteration of RCW 49.60.227. In doing so it wrote,
The legislature finds that some real property deeds and other written
instruments contain discriminatory covenants and restrictions that are
contrary to public policy and are void. The continued existence of these
covenants and restrictions is repugnant to many property owners and
diminishes the free enjoyment of their property. It is the intent of section
2 of this act to allow property owners to remove all remnants of
discrimination from their deeds.
LAWS OF 1987, ch. 56, § 1 (emphasis added).
The iteration at issue when May filed suit, former RCW 49.60.227, reads,
[(1)(a)] If a written instrument contains a provision that is void by
reason of RCW 49.60.224, the owner, occupant, or tenant of the
property which is subject to the provision or the homeowners’
association board may cause the provision to be stricken from the public
records by bringing an action in the superior court in the county in
which the property is located. The action shall be an in rem, declaratory
judgment action whose title shall be the description of the property. The
necessary party to the action shall be the owner, occupant, or tenant of
the property or any portion thereof. The person bringing the action shall
pay a fee set under RCW 36.18.012.
[(b)] If the court finds that any provisions of the written
instrument are void under RCW 49.60.224, it shall enter an order
striking the void provisions from the public records and eliminating the
void provisions from the title or lease of the property described in the
complaint.
11
In re That Portion of Lots 1 & 2, No. 99598-2
(Emphasis added.) The section labels were added in a later iteration of the statute
that did not change the text of these sections and also added an alternative
nonjudicial remedy. 4 LAWS OF 2018, ch. 65, § 1.
Applying the rules of statutory construction, the Court of Appeals concluded
that “RCW 49.60.227 plainly contemplates that a court order striking a voided
provision in a recorded instrument is self-executing; i.e., no action beyond entry of
the order is necessary to eliminate the existence of the discriminatory provision.”
May, 16 Wn. App. 2d at 514-15.
In response to the Court of Appeals opinion in this case, the legislature passed
Engrossed Second Substitute House Bill 1335, which revised RCW 49.60.227. See
LAWS OF 2021, ch. 256. In doing so, the legislature writes,
The legislature finds that the existence of racial, religious, or ethnic-
based property restrictions or covenants on a deed or chain of title for
real property is like having a monument to racism on that property and
is repugnant to the tenets of equality. Furthermore, such restrictions and
covenants may cause mental anguish and tarnish a property owner’s
sense of ownership in the property because the owner feels as though
they have participated in a racist act themselves.
It is the intent of the legislature that the owner, occupant, or
tenant or homeowners’ association board of the property which is
subject to an unlawful deed restriction or covenant pursuant to RCW
49.60.224 is entitled to have discriminatory covenants and restrictions
that are contrary to public policy struck from their chain of title. The
4
May filed his declaratory action in 2018 while former RCW 49.60.227 (2006) was in
effect, but by the time he filed his motion for summary judgment in 2019, former RCW 49.60.227
(2018), adding the section labels, was in effect. The pertinent text did not change between the
iterations of the statute.
12
In re That Portion of Lots 1 & 2, No. 99598-2
legislature has presented two ways this can be accomplished through
RCW 49.60.227(1) (a) and (b). If the owner, occupant, or tenant or
homeowners’ association board of the property elects to pursue a
judicial remedy, the legislature intends that the court issue a declaratory
judgment ordering the county auditor, or in charter counties the county
official charged with the responsibility for recording instruments in the
county records, to entirely strike the racist or otherwise discriminatory
covenants from the chain of title. Striking the language does not prevent
preservation of the original record, outside of the chain of title, for
historical or archival purposes.
The legislature finds that striking racist, religious, and ethnic
restrictions or covenants from the chain of title is no different than
having an offensive statutory monument which the owner may entirely
remove. So too should the owner be able to entirely remove the
offensive written monument to racism or other unconstitutional
discrimination.
Id. § 1. The legislature then sets forth the steps to be taken to remove the covenant
from the chain of title. Id. § 4.
The act does indicate that “[t]his act applies to real estate transactions entered
into on or after January 1, 2022.” Id. § 5. However, only section 3 of the act concerns
real estate transactions. Id. § 3. Accordingly, the rest of the act would be effective
as of the effective date of July 25, 2021, and the amended statute applies in the
present case.
Under the amended statute, when seeking the judicial remedy under RCW
49.60.227(1)(b),
(i) A complete copy of any document affected by the order shall
be made an exhibit to the order and the order shall identify each
document by recording number and date of recordation and set forth
verbatim the void provisions to be struck from such document. The
13
In re That Portion of Lots 1 & 2, No. 99598-2
order shall include a certified copy of each document, upon which the
court has physically redacted the void provisions.
(ii) The person bringing the action may obtain and deliver a
certified copy of the order to the office of the county auditor or, in
charter counties, the county official charged with the responsibility for
recording instruments in the county records, in the county where the
property is located.
(iii) The auditor shall record the documents prepared by the
court. An image of each document so corrected shall be placed in the
public records. Each corrected document shall contain the following
information on the first page or a cover page prepared pursuant to RCW
65.04.047: The auditor’s file number or book and page of the original
document, a notation that the original document was corrected pursuant
to this section, the cause number of the court action, and the date the
order was entered.
(iv) The auditor or official shall update the index of each original
document referenced in the order with the auditor’s file number of the
corrected document. Further, the index will note that the original record
is no longer the primary official public record and is removed from the
chain of title pursuant to the court order.
(v) The original document or image and subsequent records of
such actions shall be separately maintained in the county’s records and,
at the auditor’s or official’s discretion, the original document or image
may also be transferred to the secretary of state archives division to be
preserved for historical or archival purposes.
LAWS OF 2021, ch. 256, § 4 (underlining omitted).
We believe that the legislature’s intent is clear and that the amendments
provide a remedy that strikes the balance between keeping a historical record of
racism in covenants, while also allowing homeowners to remove the repugnant
covenants from their chains of title. Removing all trace of these discriminatory
14
In re That Portion of Lots 1 & 2, No. 99598-2
covenants would not effectuate the legislature’s intent to eradicate discrimination. It
would destroy only the physical evidence that this discrimination ever existed. 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. As the Court of Appeals recognized below,
A policy of whitewashing public records and erasing historical
evidence of racism would be dangerous. It would risk forgetting and
ultimately denying the ugly truths of racism and racist housing
practices. Such an outcome cannot be squared with the
antidiscrimination purposes of Washington’s Law Against
Discrimination.
May, 16 Wn. App. 2d at 515. 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. It is our history.
CONCLUSION
We hold that the legislature’s amendments to RCW 49.60.227 during the 2021
legislative session apply in the present case. Accordingly, we remand to the trial
court for the remedy as set forth in Laws of 2021, chapter 256, section 4, and for
further proceedings consistent with this opinion.
15
In re That Portion of Lots 1 & 2, No. 99598-2
WE CONCUR.
16