May v. Spokane Cnty.

506 P.3d 1230

In the MATTER OF THAT PORTION OF LOTS 1 & 2, BLOCK 1, COMSTOCK PARK SECOND ADDITION, ACCORDING TO PLAT RECORDED IN VOLUME 2 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 Lot 1; Thence N89°59'27?E, Along the North Line of Said Lot 1, 11.00 Feet; 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.

No. 99598-2

Supreme Court of Washington.

Argued October 21, 2021

Filed March 31, 2022

Bryan V. Pham, Attorney at Law, P.O. Box 3528, Spokane, WA, 99220-3528, Yajaira Lujano, Rule 9 Intern, P.O. Box 3528, Spokane, WA, 99220, for Petitioner.

John Grasso, Spokane County Pros. Atty. Office, 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent.

Debbieann Erickson, Attorney at Law, 3702 E. 8th Ave., Spokane, WA, 99202-5213, Dennis Charles Cronin, The Law Office of DC Cronin, 724 N. Monroe St., Spokane, WA, 99201-2108, Kenneth H. Kato Attorney at Law, 1020 N. Washington St., Spokane, WA, 99201-2237, for Amicus Curiae on behalf of Carl Maxey Center.

Karen Elizabeth Boxx, Keller Rohrback LLP, 1201 3rd Ave. Ste. 3200, Seattle, WA, 98101-3052, Todd Maybrown, Allen Hansen Maybrown & Offenbecher, PS, 600 University St. Ste. 3020, Seattle, WA, 98101-4105, for Amicus Curiae on behalf of Professors Karen Boxx and Gregory Hicks.

Valerie Davis McOmie, Attorney at Law, 4549 Nw Aspen St. Camas, WA, 98607-8302, Daniel Edward Huntington, Richter-Wimberley PS, 422 W Riverside Ave. Ste. 1300, Spokane, WA, 99201-0305, for Amicus Curiae on behalf of Washington State Association for Justice Foundation.

WHITENER, J.

¶ 1 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.

¶ 2 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.

¶ 3 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 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

¶ 4 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.

¶ 5 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.

¶ 6 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.

¶ 7 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.

¶ 8 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 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.

¶ 9 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.

¶ 10 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 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.

¶ 11 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 Wash. App. 2d 505, 516, 481 P.3d 1098 (2021).

¶ 12 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, 481 P.3d 1098 (Fearing, J., dissenting). May again appealed, and this court granted review.³ 197 Wash.2d 1016, 489 P.3d 258 (2021).

¶ 13 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 49.60.227 and explicitly set forth the procedure for this judicial remedy. See LAWS OF 2021, ch. 256.

BACKGROUND ON RACIALLY DISCRIMINATORY COVENANTS

¶ 14 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.

¶ 15 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, 38 S. Ct. 16.

¶ 16 "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...