Fighting Small-Town Tyranny in Minnesota

February 1, 2007

By Nick Dranias

Red Wing, Minn., may be best known worldwide for its boots, but to locals, the City is becoming the poster child for governmental paternalism and economic protectionism.  Officials in this town of 16,000 (located 50 miles southeast of St. Paul) seem to regard the area as their own personal fiefdom.  The Institute for Justice Minnesota Chapter joined with Red Wing residents and regional businesses to defend some of the most basic constitutional protections we are supposed to enjoy, but which the City continues to flout.

IJ-MN Executive Director Lee McGrath with IJ-MN clients, from left, Dale Gibson of Gibson Sanitation and Paul Larson of Paul’s Industrial Garage, gather in front of the courthouse where the IJ Minnesota Chapter launched their challenge to Red Wing’s law that would have created a government monopoly on trash disposal.

So now, thanks to IJ-MN’s two newest lawsuits, Red Wing is a key battle ground in the fight against small-town tyranny.

On November 15, IJ-MN filed suit against the City for its enforcement of a law that conditions apartment licenses only to landlords who agree to unbridled inspections of rental units and properties.  Just days before we launched this lawsuit, Red Wing filed a bizarre document called a “Motion for Entry,” which asked a local judge to grant City inspectors the power to search rental properties at all “reasonable” hours and as often as “necessary” in order to look for “possible conditions that could adversely affect the health and safety of residents and the public.”

In what amounted to, at best, circular reasoning, the City claimed the power to conduct these searches because the properties were not previously inspected.  In essence, the City demanded a spare set of keys to every rental property within its boundaries.  Similarly, Red Wing sought blanket authority to search private property for regulatory compliance.  The Fourth Amendment, however, prohibits exactly the kind of unreasonable governmental intrusion Red Wing sought to establish.  With the help of IJ-MN, a determined group of landlords and tenants is fighting to ensure the City does not trample their rights.

Next, IJ-MN discovered that Red Wing’s solution to losing hundreds of thousands of dollars on a municipal trash incinerator was not to shut it down, but to pass a so-called “organized collection” law.  This law forces commercial trash haulers to sacrifice their freedom by delivering all trash to the incinerator and pay the City 80 percent more than competing out-of-state facilities, thereby keeping the inefficient municipal burner operating.

Red Wing filed a bizarre document called a “Motion for Entry,” which asked a local judge to grant City inspectors the power to search rental properties at all “reasonable” hours and as often as “necessary.”

IJ clients and local haulers Paul Larson and Dale Gibson, however, decided this new law that violated their rights needed to be tossed in the garbage.  Represented by the Institute for Justice, they filed suit in federal court on December 6 to enforce their rights under the Commerce Clause of the U.S. Constitution.

The Commerce Clause grants to Congress the exclusive power to regulate interstate commerce.  The central reason for the Clause is to allow for free trade among the states.  Not surprisingly, the U.S. Supreme Court ruled in 1994 that municipalities cannot constitutionally prohibit the interstate movement of trash for the purpose of propping up a favored local waste processing facility.

The City tried to sidestep this precedent by justifying its scheme as an environmental preference for incineration over disposals in landfills.  The City’s own website, however, declared that the purpose of the law was to ensure the financial viability of its incinerator.

U.S. District Judge Richard Kyle saw through the City’s insincere environmental argument.  On December 22, he entered a preliminary injunction barring the enforcement of Red Wing’s organized-collection law.  Judge Kyle observed that “the City strong-armed garbage haulers (and attempted to strong-arm the Plaintiffs) into agreeing to bring all commercial waste to the Incinerator, lest they lose the right to conduct business in the city.  This is precisely the type of economic protectionism that the . . . Commerce Clause is intended to prevent.”

It was a happy holiday for IJ’s clients and the citizens of Red Wing.  They started 2007 freer than they were the year before, and IJ-MN will stand with them in our shared commitment to liberty and justice.

Nick Dranias is an IJ Minnesota Chapter attorney.

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