Renters want to vindicate their rights without fear of retaliation.  Landlords want to know as much as they can about the people who seek to live in their property.  In Hundtofte v. Encarnacion a fractured Supreme Court resolved a conflict between those two impulses in favor of the landlords.  Renters can force their landlord to sue to evict them if they feel they are being unjustly ushered out of their apartment.  But renters will not be able to keep that lawsuit secret from future landlords who might be wary of renting to litigation-prone tenants.  In order to decide this issue, the Court gave something very much like standing to the county clerk who opposed a Superior Court order to amend county indices.

Two renters had a dispute with their landlords which came to a head when the landlords filed an unlawful detainer against the renters.  The renters and landlords eventually settled their dispute.  Unfortunately for the renters, they found it difficult to find a new apartment because future landlords refused to rent to them when they discovered that the renters had been subjected to an unlawful retainer action, even though the case settled.  Fearing they would not be able to find housing in the future, the renters sought a judicial order to redact the Superior Court Management Information System (SCOMIS) indices to replace their full names with their initials.

A fractured court ruled against the renters.  Four Justices signed Justice Owens’ lead opinion that the State constitutional imperative for the open administration of justice prohibited redacting the indices.  The Justices found that “the interest in finding future rental housing in a desired location” was not so compelling an interest as to override the openness demand. Chief Justice Madsen concurred in judgment, but only insofar as the court system’s General Rule 15 prohibited amending case names to redact names.  The Chief Justice declined to join the Constitutional conclusions of the lead opinion.

Justice Gonzalez dissented, joined by Justice Gordon McCloud.  These Justices saw the renters concern as much more fundamental than finding a rental in a desired location – but as implicating the right to stable housing. Justice Gonzalez didn’t mince words:  “In other words, the lead opinion has rebalanced the facts from our ivory tower to find the burden of redaction for a Clerk without standing is more compelling than the prospect of homelessness for a family with small children. Not only is this position callous but also, to get there, the lead opinion goes well beyond abuse of discretion review.”

Justice Stephens wrote a second dissent joined by Justice Fairhurst. These Justices joined Justice Gonzalez to the extent of agreeing that the court clerk lacked standing to appeal. Presumably Justices Stephens and Fairhurst are not opining on whether the lead opinion reflects the views of callous denizens of an ivory tower.

There are two takeaways from this opinion:

1) At least under current court rules, renters cannot redact their names from unlawful retainer actions even if the court record makes it difficult to find future housing.  Renters unhappy with the first rule can potentially seek an amendment to GR 15.  However, it is hard to accept that the best way to protect renters is to make landlord/tenant litigation a secret.  Alternatively, renters can challenge the legality of landlords implementing a blanket policy against renting to families who have been involved in unlawful detainers.  If a landlord uses unlawful detainer actions as a surrogate to deny housing to minorities, that would be illegal under fair housing laws.

2) The Supreme Court will hear challenges brought by County Clerks who feel they have been subjected to an illegal court order.   This rule is strange. County Clerks are typically elected positions in Washington.  If an activist for a particular cause is elected county clerk, can that clerk refuse to perform a court ordered function if the clerk believes the court order to be illegal?  If that is so, any Superior Court order could potentially require Supreme Court resolution before the clerk is required to act.