Institute for Justice Minnesota Chapter Challenges Red Wing’s Unconstitutional Rental Home Searches

Red Wing, Minn—May the government force landlords to let inspectors into rental homes—to search without permission a tenant’s most private space—by conditioning rental licenses on that search?

Or do landlords and tenants alike have the constitutional right to demand that such government inspectors show genuine cause for rental home inspections and require them to get a warrant?

These are among the questions the Institute for Justice Minnesota Chapter seeks to answer with a lawsuit filed today against the City of Red Wing, Minn., which IJ-MN filed on behalf of landlords and tenants. The lawsuit, Stewart v. City of Red Wing, will stop City officials from crossing the threshold of anyone’s home or entering private property without truly voluntary consent or a valid search warrant. The lawsuit was filed in state court today in the First Judicial District Court for Goodhue County, Minn.

“As a condition of landlords doing business within City limits, Red Wing’s rental inspection law gives government inspectors the power to wander through bathrooms, bedrooms, closets and kitchens of both occupied and unoccupied apartments to search for building code violations even if they have no suspicion that any violation exists,” said IJ Minnesota Chapter Staff Attorney Nick Dranias. “If landlords refuse to consent to this intrusive inspection or fail to arrange their tenants’ consent, they risk the loss of their rental income because the City can revoke or refuse to issue their license to operate. If tenants refuse, they risk eviction because the landlord could be unable to legally rent to them. In short, Red Wing uses regulatory power to force landlords and tenants to submit to intrusive and unconstitutional searches of their private property regardless of whether a warrant is obtained.”

Fortunately, the Minnesota State Constitution and the Fourth Amendment to the U.S. Constitution guarantee the right to keep the government from unreasonably intruding upon private property.

“If inspectors from the City of Red Wing want to enter rental properties, they must first receive the voluntary consent of those who own or live in the properties,” said Lee McGrath, executive director of the Institute for Justice Minnesota Chapter. “And if voluntary consent is not given, the government must obtain a warrant based upon reasonable and objective standards. The right of willing landlords and tenants to rent apartments in Red Wing cannot be conditioned on forfeiting their Fourth Amendment freedom from unreasonable searches.”

The Institute for Justice Minnesota Chapter warns that if the City is not stopped, every resident of Red Wing could face intrusive, unreasonable and expensive inspections of their homes; an internal Red Wing Housing Committee memorandum dated April 12, 2004, indicated that the inspection of rental properties is only the first phase of a program aimed at inspecting all housing units in the City. Fortunately for anyone who lives in Red Wing, a coalition of landlords and tenants are fighting city hall and have decided to exercise their constitutional rights.

Landlord-plaintiffs Timothy McKim, Rhonda McKim, Douglas and Kim Sjostrom, Ryan R. Peterson, Brad and Adriana Sonnentag, Robert and Rebecca McCaughtry, and Michele 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. Similarly, tenant-plaintiffs Jesse Stewart, Amy Taylor and Susan Regelman are outraged that Red Wing puts them in the middle between their landlord’s livelihood and the City’s paternalism.

IJ-MN and its clients are challenging Red Wing’s rental inspection ordinance on three grounds. First, IJ-MN will establish that landlords—along with tenants—enjoy a protected privacy interest in publicly inaccessible areas of their private rental property under the Fourth Amendment. Second, IJ-MN is challenging a law that allows government officials to force their way into someone’s home or private property without a warrant or truly voluntary consent by leveraging the power to license rental properties. Third, IJ-MN is challenging Red Wing’s ordinance on the grounds that it fails to establish reasonable administrative and legislative standards for obtaining a search warrant. In particular, the Institute will highlight the fact that the ordinance lacks warrant standards, that the City lacks written warrant procedures or policies, and that Red Wing does nothing to verify that a tenant’s consent to an inspection was actually obtained by the landlord—or is truly voluntary.

Stewart v. City of Red Wing is IJ-MN’s fifth lawsuit in its campaign to restore property rights, economic liberty and free speech under the Minnesota State and U.S. Constitutions. In Anderson v. Minnesota Board of Barber and Cosmetologist Examiners, the organization freed hairbraiders from the State of Minnesota’s onerous cosmetology licensing regime. In Crockett v. Minnesota Department of Public Safety, IJ-MN successfully 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 the pending case of Johnson v. Minnesota Board of Veterinary Medicine, IJ-MN challenges the overreaching regulation of horse teeth “floaters”—people who manually file down horses’ teeth for a living.

Opened in 2005, IJ-MN is one of three state chapters of the Institute for Justice, a nonpartisan, nonprofit public interest law firm founded in 1991 to advance free speech, property rights, educational choice and economic liberty. The Institute for Justice advances a rule of law under which individuals can control their destinies as free and responsible members of civil society. Through strategic litigation, training, communication and outreach, the Institute for Justice secures greater protection for individual liberty and illustrates and extends the benefits of freedom to those whose full enjoyment is denied by the government. The Institute for Justice is headquartered in Arlington, Va.