Red Wing, Minn.—Let’s say you want to defend your home from an unconstitutional government search. Would you rather challenge that inspection when government officials are knocking on your door, or would you rather get a legal decision striking down the law before it is used to illegally enter your home?

So far, according to Minnesota courts, you have to wait for that knock on the door. But an appeal filed yesterday to Minnesota’s Supreme Court could change that.

In a case with statewide implications for how governments conduct housing inspections, a coalition of tenants and landlords asked the Minnesota Supreme Court to take its case challenging the city of Red Wing’s rental inspection law.

Many cities across Minnesota—and most in the Twin Cities metropolitan area, including Minneapolis and St. Paul—have ordinances similar to Red Wing’s. This case will determine when landlords and tenants can raise their legal objections to an ordinance. Can they have a court rule on its constitutionality before there is an inspector knocking at their door, or must they wait to be searched and have their privacy invaded before being allowed to sue?

The case has been dismissed on technical grounds called “standing.” The lower courts concluded—implausibly—that neither the landlords nor tenants were in imminent danger of having their rights violated by the city, giving them no “standing” to sue.

“Essentially, the courts are saying that they refuse to even entertain the question of whether this very problematic law is constitutional until the landlords and tenants are actually facing a government inspector at the door; only then, the courts have said, do these individuals have the right to go to court and ask a judge to strike down Red Wing’s rental inspection law,” said IJ-MN Staff Attorney Jason Adkins. “That’s like telling someone playing Russian roulette that they can challenge the game, but only after the trigger is pulled. By that point, it’s too late to really fight it.”

This controversy between the city of Red Wing and the tenants and landlords has been raging since 2006, when the city first enacted an ordinance requiring it to inspect all rental homes in the city—even when there is no apparent code violation or tenant complaint—and later authorizing it to seek administrative warrants when anyone refuses the inspections. Since then, the city has relentlessly sought to enter the homes and properties of those challenging the law, including submitting three warrant applications to the district court. Three times the city asked for warrants to enter the property, and three times the courts refused to grant them that power. The landlords and tenants have opposed each search, refused consent and—because the courts have so far refused to hear legal arguments that call the inspection law into question—have been forced to go to court each time to defend themselves against the warrant applications and the unreasonable searches sought by the city.

“Unless the Minnesota Supreme Court sets things straight, the landlords and tenants will have no choice but to fight each inspection effort one at a time, even though the law that the city is using to pursue these inspections has serious constitutional flaws,” said IJ Senior Attorney Dana Berliner.

Adkins said, “The Minnesota Supreme Court needs to take this case and clarify that courts should hear declaratory judgment actions, like our clients have brought, whenever a city like Red Wing is actively enforcing an ordinance against them. People have the right to know whether laws passed by cities are constitutional.”

The ACLU of Minnesota and the St. Paul Association of Responsible Landlords (SPARL) both filed friend-of-the-court briefs supporting the landlords and tenants at the court of appeals.

If the Minnesota Supreme Court takes the case and rules in plaintiffs’ favor, they will then be allowed to return to district court and there challenge the constitutionality of Red Wing’s law.

By rule, the Minnesota Supreme Court has 60 days to decide whether to hear the case, and so a decision can be expected by the High Court by the end of the year.