Red Wing Rental Inspections

The city of Red Wing, Minn. has a rental property inspection law that requires landlords and tenants to open their doors and submit to inspections of their private property in order for the landlord to receive a license to rent the property.

Under Red Wing’s rental inspection ordinance, it is easier for the government to force its way into the homes of law-abiding citizens than it is to search the home of a suspected criminal. But the U.S. and Minnesota constitutions protect everyone, not just criminals. Red Wing’s inspection mandate is unconstitutional. To protect landlords, tenants and, ultimately, everyone against unreasonable searches, the Institute for Justice Minnesota Chapter filed two lawsuits in Goodhue County District Court in Red Wing, Minn., under the U.S. and Minnesota constitutions to stop the city of Red Wing from conducting involuntary inspections without probable cause and also to ensure that constitutional standards govern residential inspections.

Red Wing’s rental inspection program has been in place for 10 years. During that time, inspectors have searched the rental homes of hundreds of residents, going into their closets, looking under their beds, and inspecting their bathroom cabinets. They have required “correction” of terrifying health and safety hazards like “a dirty stovetop,” a damaged bedroom doorstop and a bathroom door without a lock. After losing two attempts to get warrants to search rental homes without tenant and landlord consent, the city enacted a more limited program. Now inspectors don’t go into medicine cabinets or refrigerators. The most recent court decision seems to eliminate closets and cabinets as well, but inspectors still go into every room and still have access to all the personal information one can tell about a person from entering their living room, bathroom and bedroom. It is time for Minnesota courts to uphold the rights of ordinary residents to exclude unwanted visitors from their homes.

These inspection programs are popping up like weeds all over Minnesota, and similar laws are appearing everywhere from California to Indiana to Pennsylvania. Red Wing has become the flashpoint in a nationwide battle to protect privacy and the freedom from unreasonable searches, as well as to ensure administrative warrants do not become the tool of choice for governments trying to enter people’s homes.

On May 31, 2013, the Minnesota Supreme Court issued a decision where it failed to answer the ultimate question of whether the government needs a warrant backed by evidence to enter a tenant’s home.  Instead, it ruled the question was not properly before it, leaving it for another day.  However, Justice Paul Anderson authored a concurring opinion where he stated that when the court does answer the question it should rule that warrants that are not backed by evidence—like those Red Wing has repeatedly applied for—are unconstitutional.  Since that ruling Red Wing has not decided whether to go forward to again seek these warrants.

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Both the Fourth Amendment to the U.S. Constitution and Article I, section 10 of the Minnesota Constitution guarantee the right to keep the government from unreasonably intruding upon private property. If the government wants to get into your home, it needs a warrant or your voluntary consent. Renting an apartment in Red Wing cannot require landlords and tenants to forfeit this freedom. That’s why landlords and tenants have united with the Institute for Justice Minnesota Chapter to stop unlawful governmental intrusion. Their lawsuit, McCaughtry v. City of Red Wing, will stop city officials from entering private property without truly voluntary consent or a warrant that is based upon probable cause.

As a condition of landlords doing business within city limits, Red Wing’s rental inspection ordinance empowers government inspectors to wander through bathrooms, bedrooms, closets, kitchens and storage rooms of both occupied and unoccupied apartments to search for housing code violations. In short, Red Wing’s rental inspection regime forces landlords and tenants to submit to intrusive searches of their private property in order to continue living in a rental home or renting property in Red Wing.

Some people do not want government agents wandering through their homes. And for good reason. You can tell a lot about someone just from a quick walk-through of their home. According to the landlords in this case, even quick visits to rental homes reveal, among other things, a person’s religious beliefs; whether they are cohabitating; whether they are messy or neat, reclusive or lonely; how much money they have; their personality; their hobbies; their social circles; and their peculiar cultural traditions and habits.

If the government wants to get into your home, it needs a warrant or your voluntary consent. Renting an apartment in Red Wing cannot require landlords and tenants to forfeit this freedom.

Rather than wasting resources by hiring more city inspectors and developing coercive regulatory schemes, the city could have addressed whatever legitimate safety concerns really exist by mounting an educational campaign to advise tenants of those concerns and of their previously existing right to request an inspection of their units voluntarily under the city code. If incentives were needed for landlords to take appropriate action, the City could have substantially increased penalties for serious code violations that are discovered in the course of such voluntary inspections. But IJ-MN’s investigations show that these commonsense options were never considered by the city of Red Wing, and after two lawsuits and the denial of three of the city’s warrant application, they still have not been considered.

The Red Wing Landlord-Tenant Coalition

An internal Red Wing Housing Committee memorandum dated April 12, 2004, indicates that although the inspection of rental properties is the first phase of a program, the ultimate goal of the city is to inspect all housing units in Red Wing.[1] Accordingly, if the city is not stopped, every resident of Red Wing could face intrusive, unreasonable and expensive inspections of their homes. Fortunately, a courageous coalition of landlords and tenants decided to stand up to these practices.

Plaintiffs Timothy and Rhonda McKim, Douglas and Kim Sjostrom, Ryan R. Peterson, Brad and Adriana Sonnentag, and Robert and Rebecca McCaughtry are owners of a few dozen well-maintained rental properties. They are unwilling to knuckle under to the city’s licensing regime, and too principled to pressure their tenants to “consent” to inspections. They have joined this lawsuit to stop unreasonable and intrusive inspections of their private residential properties—and also to ensure that the city does not retaliate against them for doing so.

Plaintiff John Monroe is a tenant of the McCaughtrys. He does not want uninvited guests—government inspectors included—entering his home. Period. He believes Red Wing’s inspection program amounts to a “staggering invasion of privacy” people should not tolerate from government. He fiercely maintains his privacy and is pursuing this lawsuit to vindicate his own rights and the rights of all renters in Minnesota.

Plaintiff John Monroe is a tenant of the Sonnentags. He was born and raised in Red Wing, and is active in the local arts community. John wants to be free to refuse entry and demand a warrant without adverse consequences to himself or his landlord. He has joined this lawsuit to ensure he can enjoy his constitutional right to privacy in his own home.

Red Wing’s Rental Inspection Regime

Despite overwhelming opposition expressed by residents at each public hearing on the issue, on February 14, 2005, the city of Red Wing adopted an ordinance that made it illegal to operate rental apartments without an “operating license.” The ordinance requires landlords to agree to inspections of their rental properties when they apply for their operating license. If the landlord refuses to allow the inspection, the ordinance instructs the city to withhold the operating license until the inspection occurs. In fact, the ordinance is quite explicit about the conditioning of license issuance upon the occurrence of an inspection—it states in no uncertain terms:

Rental Dwelling Inspections. No operating license may be issued or renewed unless the City determines, following an inspection conducted pursuant to this section, that the Rental Dwelling Unit and its premises conform to the Housing Maintenance Code (“HMC”).[2]

Thus, the City’s ordinance requires inspection of every rental home in order for a landlord to continue renting legally. This is no mere idle threat—operating rental units without a license subjects a landlord to misdemeanor charges, fines and even imprisonment and the eviction of existing tenants.[3] And the city is undeniably serious about conducting inspections—at every public hearing dealing with the topic, Red Wing officials have repeatedly stated that inspections of rental units are “required” and “[e]very rental dwelling unit must be inspected.”[4]

Landlords and tenants can demand a warrant as a condition of an inspection.[5] But the warrant Red Wing seeks is not a typical warrant based on individualized probable cause to believe something is wrong in a particular home. Rather, when consent to enter a particular rental dwelling is refused, Red Wing seeks a so-called “administrative warrant,” which it believes allows cities to enter homes whenever it has submitted evidence that there are general problems in an area.

Protecting the Sanctity of All Homes

Although most commonly associated with searches performed by law enforcement officers investigating crimes, both the Fourth Amendment and its counterpart in the Minnesota Constitution ensure that all citizens have the right to keep unwanted government officials out of their homes and off of their property. Thus, the U.S. Supreme Court has held that the Fourth Amendment applies to “all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life.”[6] The Court has emphasized “even the most law-abiding citizen has a very tangible interest in limiting the circumstances under which the sanctity of his home may be broken by official authority.”[7]

Generally, the Fourth Amendment requires that, in order to enter a person’s property without his consent, a government official must obtain a valid search warrant issued by a judge and based on some reasonable suspicion (“probable cause”) that a law is actually being violated.[8] Both of those requirements—probable cause and the issuance of a warrant—safeguard people from “arbitrary invasions by governmental officials.”[9] The requirement of “probable cause” ensures that government officials cannot engage in blanket searches of the homes of law-abiding citizens,[10] and the warrant requirement ensures that a neutral judge will review an official’s determination that “probable cause” in fact exists.[11] Article I, section 10 of the Minnesota Constitution, which is almost identical to the Fourth Amendment, contains the same requirements.

Administrative Inspections: The Exception Red Wing Wants to Swallow the Rule

For more than a century and a half, these strict requirements served as an ironclad protection against blanket and arbitrary searches of all private property by government officials. But, in the 1960s, the U.S. Supreme Court carved out a narrow exception to the probable cause requirement for “administrative inspections.” Officials still have to get a warrant to conduct these inspections, but they need merely show that there are “reasonable legislative and administrative standards” in place for conducting the search in order to obtain the warrant.[12] Thus, it is much easier for governments to get a warrant for an “administrative inspection” than it is for them to get a warrant in other situations (e.g., if they are investigating a crime).

The U.S. Supreme Court’s decision was based upon the Fourth Amendment to the U.S. Constitution.  But the Minnesota Supreme Court has never ruled on whether the Minnesota Constitution provides a higher level of protection.  That is the issue now before it in this case.

The U.S. Supreme Court’s exception for administrative inspections has led to abuses by local government across the country.  For example, municipalities like Park Forest, Ill., and Marietta, Ga., once used administrative inspections to target an entire community because of a few people that they deemed “undesirable.” Then, in 1998, the Institute for Justice, representing tenants in Park Forest, succeeded in securing a federal court ruling that the city’s administrative inspection scheme violated the Fourth Amendment because it lacked reasonable administrative and legislative standards and also because it penalized tenants for asserting their right to a warrant.[13] The Institute also succeeded in challenging Marietta’s scheme, which allowed officials to search a person’s apartment without even asking for his or her consent to do so.

Like in Park Forest and Marietta, the Institute for Justice has defeated three of the city’s attempts to enter Plaintiffs’ homes and properties. Courts here have held that Red Wing’s program runs afoul of even the minimal requirements for these searches outlined by the U.S. Supreme Court, and thus have denied the city’s warrant applications.

Both the Fourth Amendment and its counterpart in the Minnesota Constitution ensure that all citizens have the right to keep unwanted government officials out of their homes and off of their property.

The Minnesota Court of Appeals, however, has ruled the Red Wing’s ordinance—the law that allows for warrant applications in the first place—does not itself violate the Minnesota Constitution.  It ruled the Minnesota’s Constitution should be interpreted exactly as the U.S. Supreme Court has interpreted the Fourth Amendment, and allowed for unconsented “administrative inspections” that are not supported by traditional probable cause.

Now at the Minnesota Supreme Court, plaintiffs are challenging whether the Minnesota Constitution even allows administrative warrants that authorize searches based on less than individualized probable cause. The Minnesota Supreme Court has provided greater protection from unreasonable searches and seizures under the Minnesota Constitution than that afforded by the federal Constitution. The court has recognized that its federal counterpart has, on a number of occasions, jettisoned the original purpose of the constitutional protections against unreasonable searches, which is to protect personal privacy, particularly in the home.[14] As a result, the Minnesota Supreme Court has rejected federal search-and-seizure rules and adopted their own more stringent standards.[15] The landlords and tenants represented by the Institute for Justice believe that this is another instance in which the courts should look to the state constitution as an independent source of liberty. A victory here may encourage other states to reject the U.S. Supreme Court’s abdication of its responsibility to protect people from unreasonable searches in their homes through the traditional warrant requirement. Thus, this small-town battle has truly national consequences.

Litigation Goal

These consolidated lawsuits, McCaughtry v. City of Red Wing and Stewart v. City of Red Wing, seek to establish legal safeguards for property rights and to challenge attempts by bureaucrats to trample upon those rights because “[i]ndividual freedom finds tangible expression in property rights.”[16]

The Institute for Justice Minnesota Chapter and its clients are challenging Red Wing’s rental inspection ordinance on three grounds. First, the Institute for Justice will establish that landlords—along with tenants—enjoy a protected privacy interest in publicly inaccessible areas of their private rental property under the state and federal constitutions.[17] Keeping government intruders out of private property is, after all, the original purpose of the Fourth Amendment.

Second, the Institute for Justice Minnesota Chapter and its clients are asking Minnesota courts to reject the abusive system of administrative warrants that allows government agents to enter your home or property without consent or a specific reason to believe something is actually wrong inside.

Third, the Institute for Justice is challenging Red Wing’s ordinance on the grounds that it fails to establish reasonable administrative and legislative standards for obtaining an administrative search warrant, as required by both the state and federal constitutions.[18] In particular, the Institute will highlight the fact that the ordinance lacks adequate warrant standards, and that the city lacks written warrant procedures or policies.

Already, the Institute for Justice’s litigation in Red Wing is providing meaningful protection for people in other parts of the country. Many have read about this case and have used the court victories IJ-MN has won thus far to fight similar programs. The Minnesota Constitution states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” The Institute for Justice Minnesota Chapter will continue to battle for the right to be secure in one’s “houses, papers and effects.”

Restoring the Original Meaning of Constitutional Rights

This lawsuit is the Institute for Justice Minnesota Chapter’s fifth in its campaign to restore property rights, economic liberty and free speech under the Minnesota and U.S. Constitutions. In Anderson v. Minnesota Board of Barber and Cosmetologist Examiners, IJ-MN freed hairbraiders from the State of Minnesota’s onerous cosmetology licensing regime. In Crockett v. Minnesota Department of Public Safety, IJ-MN stopped the government from enforcing a blanket ban on advertising or using the Internet to conduct lawful direct sales of wine. In Dahlen v. Minneapolis, IJ-MN ended the city’s arbitrary licensing of sign hangers. And in Johnson v. Minnesota Board of Veterinary Medicine, IJ-MN challenges the overreaching regulation of horse teeth floaters.

As noted above, in the federal court case of Black v. Village of Park Forest, the Institute for Justice secured a powerful ruling that government cannot penalize individuals for asserting their Fourth Amendment rights against unreasonable residential inspections. This Minnesota case seeks to build on that precedent in order to restore and defend constitutional protections of property rights.

Founded in 1991, the Institute for Justice represents ordinary Americans nationwide who fight arbitrary government regulations affecting property rights, economic liberty and free speech. In addition to those inspection cases already discussed above, other property rights cases litigated by IJ and won, either in court or in the court of public opinion, include:

· Kelo v. City of New London—The Institute for Justice’s first battle against eminent domain abuse before the U.S. Supreme Court may have been lost in a narrow 5-4 decision, but the popular uprising since Kelo is winning the war through the passage of eminent domain reform in 43 states.

· City of Long Branch v. Brower—The Institute for Justice successfully prevented a city from taking a group of property owners’ homes under a pretextual “blight” designation.  Under the city’s definition of “blight” a home could be condemned for reasons like “diversity of ownership,” meaning families owining their own homes, something that should be a point of pride for Americans.

· City of Norwood v. Horney—The Institute for Justice prevailed in a unanimous Ohio Supreme Court decision that, under the Ohio Constitution, rejected the U.S. Supreme Court’s Kelo’s economic development justification for eminent domain proceedings. As a result, homes once threatened by eminent domain for private development were returned to their rightful owners.

· Brody v. Village of Port Chester—The Institute for Justice vindicated a property owner’s right to procedural due process in an eminent domain proceeding that seized his building without meaningful notice or an opportunity to be heard.

· Casino Reinvestment Development Authority v. Coking—Representing a small property owner against a state agency that sought to advance Donald Trump’s financial interests, the Institute for Justice succeeded in stopping an abuse of eminent domain.

Litigation Team

The attorneys in this case are Institute for Justice Minnesota Chapter Attorney Anthony Sanders and IJ Litigation Director Dana Berliner.

The Institute for Justice is a nonprofit public interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through strategic litigation, training, communication, research and outreach, the Institute secures greater protection for individual liberty and illustrates and extends the benefits of freedom to those whose full enjoyment is denied by the government.

Headquartered in Arlington, Va., the Institute for Justice has state chapters in Arizona, Washington, Texas, and Minnesota. IJ-MN was established in April 2005.

From its office in Minneapolis, the Institute for Justice Minnesota Chapter litigates under the state and federal constitutions to reinvigorate economic liberty, preserve property rights, promote educational choice and defend the free flow of information essential to informed choices in both politics and commerce.

For more information, contact: John E. Kramer (Vice President for Communications) Institute for Justice 901 N. Glebe Road, Suite 900 Arlington, VA 22203 (703) 682-9320 ext. 205

Dana BerlinerLitigation DirectorInstitute for Justice901 N. Glebe Road, Suite 900Arlington, VA 22203(703) 682-9320

Lee McGrath, Executive Director Anthony Sanders, AttorneyInstitute for Justice Minnesota Chapter527 Marquette Avenue, Suite 1600Minneapolis, MN 55402-1330(612) 435-3451

[1] As reported to City Attorney Jay Squires, the Housing Committee wanted “an inspection on all housing units” and was most “comfortable with a phased in program that would allow us to address our largest concerns, rental housing, first.” A copy of the memorandum was acquired by the Institute for Justice Minnesota Chapter through Data Practice Act inquiries and is available for review upon request.

[2] Red Wing Rental Dwelling Licensing Code, § 4.31, Subd. 1(3).

[3] Id., § 4.31, Subd. 1(13), Subd. 4.

[4] A copy of the City’s October 25, 2004, December 1, 2005 and March 2006 Power Point presentation printouts supporting this statement was acquired by the Institute for Justice Minnesota Chapter through Data Practice Act inquiries and is available for review upon request.

[5] RDLC § 4.31, subd. 1(3)(i).

[6] Boyd v. United States, 116 U.S. 616, 630 (1886) (emphasis added).

[7] Camara v. Municipal Court, 387 U.S. 523, 530-31, 534 (1967).

[8] Maryland v. Buie, 494 U.S. 325, 331 (1990).

[9] Camara, 387 U.S. at 528.

[10] Payton v. New York, 445 U.S. 573 (1980).

[11] Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 4.1 (collecting Supreme Court cases) (2004).

[12] Camara, 387 U.S. at 538.

[13] Black v. Park Forest, 20 F. Supp. 2d 1218 (N.D. Ill. 1998).

[14] State v. Jordan, 742 N.W.2d 149, 159 (Minn. 2007) (Meyer, J., concurring).

[15] Kahn v. Griffin, 701 N.W.2d 815, 827 (Minn. 2005).

[16] United States v. James Daniel Good Real Property, 510 U.S. 43, 61 (1993).

[17] Dearmore v. City of Garland, 400 F. Supp. 2d 894, 903 (N.D. Tex. 2005).

[18] Black, 20 F. Supp.2d at 1222.

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