In 1948, the U.S. Supreme Court, in the landmark case of Shelley v. Kraemer, ruled that racially restrictive real estate covenants—once a prevalent practice in property deeds—were legally unenforceable in state and federal courts. While these covenants have been nullified and are considered legally inert, county recorders across the country continue to copy and transcribe the entirety of historical deed language, including the obsolete, racially discriminatory clauses, as part of the public record for real estate transactions.
The Lawsuit’s Claims and Requested Relief
A recent legal action filed in Ohio seeks to challenge this practice. A couple, identified in the legal complaint only as John and Jane Doe, is suing multiple Ohio county recorders. Represented by attorney Zachary Gottesman of Cincinnati, the plaintiffs are seeking injunctive relief from the court.
Specifically, the plaintiffs are asking the court to issue “an injunction requiring recorders to ‘sequester’ the offensive documents or, for those documents that have to be published, to redact the racially-offensive portions.” In addition to this core request, the plaintiffs are also seeking to recover their attorney fees, punitive damages, and “any other relief the court deems just.”
Defense of the County Recorders’ Actions
Legal counsel representing the county recorders has argued against the lawsuit’s demands. The defense maintains that county recorders are legally obligated to accurately copy, transcribe, or otherwise make available property deeds precisely as they are found in the historical record. The defense brief also challenges the plaintiffs’ use of an anonymous filing (John and Jane Doe) as procedurally improper.
The argument presented on behalf of the defendant recorders contends they cannot be held liable for the content of the historical documents. The brief draws a comparison, arguing that the defendants “cannot be held liable… in the same way a library or museum cannot be held liable for hate speech for maintaining a display of offensive historical documents.”
This case, highlighted by the Zanesville Times Recorder, presents a conflict between the historical preservation duties of public offices and the contemporary ethical and legal concerns surrounding the continued dissemination of racially discriminatory language in official property records.
