The Issue in a Nutshell:

 

The City of Red Wing, Minn. is enforcing a rental property inspection law that requires landlords to open their tenants’ doors without permission and submit to inspections of their private property in order for the landlord to receive a rental license.  Landlords who respect their tenants’ right to exclude government strangers from their homes risk losing their right to rent their property.

As a result, 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.  The U.S. Constitution does not allow such an absurdity.  Red Wing’s inspection mandate is unconstitutional.

But the inspection of rental properties is only the first phase of the City’s plan to inspect all housing units in Red Wing.  If the City is not stopped, every resident of Red Wing could face intrusive, unreasonable and expensive forced inspections of their homes as a condition of exercising their property rights.  Fortunately, the Supreme Court has repeatedly upheld the Fourth Amendment right to exclude the government from arbitrarily intruding into one’s home.  It is time for the state court in Goodhue County to do the same in this case.

To protect landlords, tenants and, ultimately, homeowners against searches that violate the Fourth Amendment, the Institute for Justice Minnesota Chapter has filed a lawsuit 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 or coercing consent to warrantless inspections and also to ensure that constitutional standards govern residential inspections.

Introduction

The Fourth Amendment to the U.S. Constitution guarantees 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, Stewart v. City of Red Wing, will stop City officials from entering private property without truly voluntary consent or a warrant that is based upon reasonable standards.

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 living rooms of both occupied and unoccupied apartments to search for housing code violations, as well as compliance with “other City ordinances” and “laws of the State.”  And the law threatens anyone who refuses to submit to an inspector’s search.  If landlords refuse to consent (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’s rental inspection regime forces landlords and tenants to submit to intrusive searches of their private property without a warrant.

The day Red Wing enacted its mandatory inspection law, Council President Stephen Castner patronizingly “likened the situation to keeping a whole classroom of students after school because of one kid caught chewing gum.”[1]  Not satisfied with just one specious analogy, Council President Castner offered another, “I realize that a lot of good people will suffer for what a few bad ones do, but I think we all pay for police protection and none of us use it.  But we expect them to enforce speeding laws.  It’s the same thing to me.”[2]

But laws that mandate unwanted inspections of one’s most private personal space—one’s home—by government agents should not be regarded as the “same thing” as merely enforcing speed limits.  Nor should an inspection regime for adults mirror the collective punishment of school children.  Council President Castner’s commentary only highlights the outrageous fact that Red Wing’s rental inspection program embodies patronizing paternalistic government.

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 Council President Castner’s equation of rental inspections with collective punishment of schoolchildren confirms that safety considerations do not really underpin the City’s inspection regime.

 

The Red Wing Landlord-Tenant Fourth Amendment 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.[3]  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, 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.  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 Jesse Stewart is a tenant of the Sonnentags.  He was born and raised in Red Wing, and is active in the local arts community.  Jesse does not believe he is free to refuse entry and demand a warrant without adverse consequences to himself or his landlord.  In short, Jesse’s exercise of Fourth Amendment rights has been chilled.  Jesse Stewart has joined this lawsuit to ensure he can enjoy his constitutional right to privacy in his own home.

Plaintiff Amy Taylor is a tenant of Tim and Rhonda McKim.  She has serious doubts about whether the City of Red Wing has her interests in mind when it enacts a law that will force her to allow inspections of her home.  She is unwilling to submit to such government intrusion without a valid warrant.

Plaintiff Susan Regelman previously told her landlord in writing that she did not want the City conducting an inspection of her duplex unit.  She agreed to an inspection only after her landlord told her he “couldn't fight City Hall” and that the inspector was only going to check wiring and electrical outlets.  When the City inspector conducted an all-encompassing search of her entire apartment, including bathrooms and bedrooms, Susan felt violated. 

Susan is outraged that Red Wing’s ordinance puts her “in the middle” between her landlord’s livelihood and the City’s paternalism.  She agreed to the initial inspection only because she was misled about the scope of the inspection and worried about whether she would jeopardize her apartment lease if she refused the inspection.  The City is likely to conduct a re-inspection in the near future, but Susan joined this lawsuit so she can safely say “no” to another unnecessary, unreasonable and intrusive search of her 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:

Inspection condition. A license may not be issued or renewed unless the owner of rental units agrees in the application to permit inspections pursuant to section 4.31. . . .[4]

Inspection access. . .  No license will be issued under this ordinance until all required inspections are complete.[5]

Thus, the City’s ordinance coerces consent to inspections by threatening landlords with the non-issuance of their operating licenses.  This is no mere idle threat—operating rental units without a license subjects a landlord to misdemeanor charges, fines, imprisonment and the eviction of existing tenants.[6]  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.“[7] 

Additionally, Red Wing’s ordinance states “it is the responsibility of the owner ... to obtain consent from the renter for the inspection.”[8]  If the landlord cannot obtain the tenant’s consent, the ordinance does not waive the inspection obligation.  Inspection remains a precondition of issuing his operating license.  Thus, Red Wing’s ordinance forces a landlord who has a noncompliant (or elusive) tenant to choose between redoubling his efforts to secure his tenant’s “consent,” sneaking into the tenant’s apartment with an inspector, or terminating the tenant’s lease and evicting him (in order to ensure the inspection occurs).  In this way, Red Wing’s ordinance pressures landlords to pressure their tenants to consent to inspections, and also indirectly threatens tenants with eviction if they refuse to “consent” to an inspection.

In theory, landlords and tenants can demand a warrant as a condition of an inspection because “the enforcement officer is authorized to seek court authorization” if an inspection is refused.[9]  But if City officials would rather not take the time (or spend the money) to apply for a warrant from a local judge, they don't have to—nothing in the ordinance requires Red Wing officials to apply for a warrant when one is demanded (and the City has admitted that it has no written warrant policies or procedures).  Instead, the City can simply take advantage of the leverage created by its cleverly drafted ordinance—whenever a landlord or tenant demands a warrant, Red Wing can sit on the issuance of the landlord’s operating license until mounting financial pressure to rent an unoccupied unit (or the threat of criminal prosecution or eviction for maintaining an existing leased unit without a license) eventually forces a “consensual” inspection.

The City’s ordinance ensures that the City will not lose its leverage to coerce inspections even if it seeks and is denied a warrant.  Nothing in Red Wing’s ordinance waives its inspection requirement when a warrant is refused.  If a judge denies a warrant application and prevents the City from conducting an unreasonable inspection, the decision would do nothing to cause the issuance of the landlord’s operating license.  In this way, regardless of whether the City’s inspections are supported by a warrant, Red Wing’s ordinance retains the ability to coerce “consent” to an inspection through the City’s control over the issuance of rental property operating licenses.  In other words, if a landlord or tenant presses his or her Fourth Amendment right to a warrant and successfully stops an inspection attempt by the City, the landlord would still not be able to legally lease his unit (and the tenant would still face eviction) because of the non-issuance of his landlord’s operating license.

 

The Application of Red Wing’s Rental Inspection Ordinance

In December 2005, Red Wing began requiring landlords to apply for temporary permits in order to create a registry of rental properties and their owners.  Red Wing’s rental inspection ordinance states “[a] temporary permit is subject to suspension or revocation under the same terms and conditions as a license.”[10]  The City is apparently invoking this language in a strained attempt to justify imposing on temporary permit holders the same inspection regime that the ordinance imposes on operating license applicants.

During October 2006, the City began delivering what it termed a “Motion for Entry Upon and Inspection of Property” on various rental property owners, including the Plaintiffs bringing this constitutional challenge.  The City’s “Motion” acknowledges that a warrant is necessary to gain access to rental properties when one is demanded and further acknowledges that there must be a reasonable basis for seeking a warrant, such as “the passage of a certain period of time … the nature of the building, or the condition of the entire area.”[11]

Despite acknowledging these fundamental principles, the Motion requests a court order “directing [the landlords] ... to admit [the City] ... onto said properties for inspection to determine compliance with the City’s Housing Maintenance Code and the Rental Dwelling Licensing Code, and for access to said properties for any follow-up inspections that are necessary.”[12]  The “Motion” proposes no specific limits on the date, scope, conduct or number of inspections.  Moreover, to justify its asserted right to conduct open-ended inspections of the targeted rental properties on unspecified dates, the City offers no basis whatsoever other than to allege that the power to conduct inspections exists in the ordinance and “this may likely be the first time that many of these properties will be inspected.”[13]  The City does not even allege that housing code violations are suspected in any of the targeted properties or even in any building in the surrounding neighborhood.

In what amounts to circular reasoning at best, the City wants to conduct an unlimited number of searches throughout private rental properties on unspecified dates for no reason other than the mere possibility the properties were not previously inspected.  Even more disturbing, Red Wing’s “Motion” seeks a court order to conduct these inspections without giving notice to the tenants who live in the targeted properties.  In effect, the City has asked the Goodhue County District Court for a spare set of keys to every rental property within its jurisdiction.  But a request for a court order to conduct open-ended inspections of indefinite scope on unspecified dates is not an application for a warrant based on reasonable legislative or administrative standards.

 

The Fourth Amendment:  Protecting the Sanctity of All Homes

While most commonly associated with searches performed by law enforcement officers investigating crimes, the Fourth Amendment ensures that all citizens have the right to keep unwanted government officials out of their homes and off of their property.  Thus, the 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.”[14]  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.” [15] 

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.[16]  Both of those requirements—probable cause and the issuance of a warrant—safeguard people from “arbitrary invasions by governmental officials.”[17]  The requirement of “probable cause” ensures that government officials cannot engage in blanket searches of the homes of law-abiding citizens,[18] and the warrant requirement ensures that a neutral judge will review an official’s determination that “probable cause” in fact exists.[19]  Because officials are not neutral (they are pursuing the government’s interests and may see “probable cause” where it does not exist), the Supreme Court has emphasized that searches conducted without a warrant are generally presumed unconstitutional.[20]

 

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.[21]  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).

But the Supreme Court intended for the administrative inspections exception to be very narrow within the context of a home.  In deciding that housing inspectors could search rental properties for violations of the housing code, it stressed that a search for housing code violations was aimed at preventing dangerous conditions, like faulty wiring, that could threaten the safety of the whole neighborhood.[22]  The Court never said that, outside the specific context of preventing dangerous conditions that can only be prevented through blanket searches, the government could undertake a program of administrative inspections that are not based on reasonable suspicion of a violation of the law.  And the Court emphasized that an official must obtain a proper warrant from a judge so that arbitrary inspections are avoided.

Despite the Court’s narrow exception for administrative inspections in the context of home searches, 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.[23]  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 Park Forest and Marietta, Red Wing wants to conduct intrusive inspections of all rental properties and has passed a law that forces landlords and tenants to consent to its scheme.  But the U.S. Supreme Court has always stressed that a person cannot be punished for or deterred from exercising his constitutional rights.  Just as the government cannot punish someone for exercising his right to free speech under the First Amendment, or his right against self-incrimination under the Fifth Amendment, it cannot punish him for exercising his Fourth Amendment right to refuse a warrantless search of his home.[24]  That makes perfect sense.  Because governments cannot directly take away their citizens’ constitutional rights, they shouldn’t be allowed to take them away indirectly by punishing citizens who choose to assert those rights.

A landlord’s consent to inspections of his private property is not voluntary if the right to rent his property is being threatened.  And a tenant’s consent to government strangers conducting intrusive home inspections is not voluntary if she risks eviction by refusing to cooperate.  In short, Red Wing’s inspection mandate violates the Fourth Amendment on its face because it coerces both landlords and tenants to refrain from objecting to inspections and demanding a warrant.  Mandatory consent is not voluntary consent.

 

Litigation Goal

Stewart v. City of Red Wing was filed on November 15, 2006, in Goodhue County District Court in Red Wing, Minn.  This lawsuit seeks 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.”[25]

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 Fourth Amendment.[26]  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 challenging Red Wing’s rental inspection ordinance because it facially authorizes the non-issuance of the landlord’s operating license in retaliation for the refusal to consent to a warrantless search.  This places what the U.S. Supreme Court calls an “unconstitutional condition” on the exercise of Fourth Amendment rights.[27]  Even under the administrative inspections exception, government officials cannot force their way into someone’s home by threatening those who assert their Fourth Amendment right to a warrant.[28]  Such attempts to chill the exercise of constitutional rights must be stopped.  The Constitution prohibits the placement of a coercive influence on the exercise of Fourth Amendment rights because consent to an inspection must be “free and voluntary.”[29]

Third, the Institute for Justice is challenging Red Wing’s ordinance on the grounds that it improperly delegates to landlords the government’s obligation to obtain the tenant’s voluntary consent for a warrantless search[30] and because it fails to establish reasonable administrative and legislative standards for obtaining an administrative search warrant.[31]  In particular, the Institute will highlight the fact that the ordinance lacks adequate 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.

 

Restoring the Original Meaning of Constitutional Rights

Stewart v. City of Red Wing is the Institute for Justice Minnesota Chapter’s fifth lawsuit 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, the non-profit organization 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 case will seek to build upon that precedent in order to restore and defend constitutional protections of property rights.

Founded in 1991, the Institute for Justice has represented numerous ordinary Americans nationwide who have fought arbitrary government regulations affecting property rights, economic liberty and free speech.  In addition to those inspection cases already discussed above, these 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 well over 30 states.
  
  
• City of Norwood v. Horney—The Institute for Justice recently prevailed in convincing the Ohio Supreme Court to reject, under the Ohio Constitution, 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 an 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 Executive Director Lee McGrath and Staff Attorney Nick Dranias.

The Institute for Justice is a nonpartisan, nonprofit public interest law firm that 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 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 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)

Lisa Knepper (Director of Communications)

Institute for Justice

901 N. Glebe Road, Suite 900

Arlington, VA  22203

(703) 682-9320

 

Lee McGrath, Executive Director

Nick Dranias, Staff Attorney

Institute for Justice Minnesota Chapter

527 Marquette Avenue, Suite 1600

Minneapolis, MN 55402-1330

(612) 435-3451