Washington Supreme Court weighing fate of racist covenants in Spokane home deeds

OLYMPIA – A Spokane homeowner wanted a historic racist covenant removed from his home’s title and deed. Spokane County Auditor Vicky Dalton said it was not in her authority to do so.

Now, the state Supreme Court will decide.

The Court heard arguments Thursday on the case involving Alex May, who wants the county to remove a property 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.”

Homes in Spokane and across the country have similar language in their titles, although it is now illegal to enforce them.

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.

In Thursday’s argument before the Supreme Court, Yajaira Lujano, a Gonzaga University law clinic intern representing May, said the language is “viscerally offensive” and prevents a homeowner from fully enjoying their property.

She pointed to a new law passed by the Legislature in April, which outlines the process of how to remove racial covenants from public records. The law allows homeowners, if they chose, to pursue a “judicial remedy,” which would order a county auditor to entirely strike the “racist or otherwise discriminatory covenants from the chain of title.”

The law goes on to say striking the language should not “prevent preservation of the original record, outside of the chain of title, for historical or archival purposes.”

In the petitioners’ brief, May’s lawyers argue the new law has confusing language that still does not allow covenants to be eliminated from public record, including the line requiring documents to be preserved for historical or archival purposes.

Because the lower courts failed to allow May to remove the deed and because the language in the new law remains unclear, it is up to the Supreme Court in this case to order the auditor to strike the language.

John Grasso, attorney for Dalton, said the new law still does not give the auditor any expanded power to strike or eliminate the covenant.

He argued the new law leaves it up to the court to physically strike void provisions in recorded documents. The auditor is simply left to create new documents without the voided provision in a new chain of title, he wrote in his brief. The old ones should still be kept in an archive.

“The Legislature has indicated the clear process for which the restrictive covenants can be removed,” Grasso said.

Justice G. Helen Whitener questioned Lujano on whether removing the language would lead to forgetting the history that goes along with it. When discussing discrimination, Whitener said, it’s usually good to have data and documents to support it.

Lujano said leaving the language in the deed would not remove the memory of the racism associated with it. The community will still remember .

“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.”

The Court is expected to issue its opinion within three to six months.