Rental code battle fought in court

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MINNEAPOLIS — Red Wing’s rental inspection code was under the microscope Wednesday as lawyers for the city went head-to-head with a public interest law firm representing local landlords and renters in a federal courtroom. U.S. District Judge John R. Tunheim presided.

At the crux of the dispute is the city’s claim that their rental inspection code ensures housing safety, and the counterargument from the Institute for Justice — representing the landlords — that the inspections violate their clients’ Fourth Amendment rights.

Institute for Justice attorney Nick Dranias argued that Red Wing’s rental code coerces landlords to submit to unconstitutional inspections by threatening to withhold rental licenses if landlords refuse searches.

Landlords have temporary permits until 2009, when they are supposed to receive regular licenses after inspections under the code.

Dranias also said the searches are intended more for criminal detection and cleanliness than for safety concerns.

John Baker, attorney for the city, said Dranias’ claims were erroneous or exaggerated.

“Their primary complaint is the city set the standard too high,” Baker said. “The Fourth Amendment doesn’t prevent the city from setting high standards for rental property.”

He also denied the code is aimed at criminal detection.

Regarding coercion, Baker said landlords who object to searches receive protection from the courts when the city seeks administrative warrants to enter the homes.

“Where is the permanent relief?” Dranias asked in response. He added that even if the city was denied a warrant, it could still deny a license to a landlord who did not consent to a search.

“The city can say, ‘If you win, you still lose,’” Dranias said.

In a court deposition provided to the Republican Eagle by the Institute for Justice, City Engineer Ron Rosenthal agreed there was nothing in writing that would require the city to issue a license to a landlord if a search warrant was denied.

In that scenario, Baker argued, the city wouldn’t have much of a leg to stand on. “The city isn’t trying to trap anybody,” he said.

Equally controversial was the debate over whether the matter should be decided in state or federal court. In addition to the federal case, the parties have a court date in District Court on May 2.

Baker argued the state case would be sufficient to settle the matter. Dranias countered that the federal case should trump the state case.

The argument over venue may be about more than just jurisdiction.

At the federal level, a win for the landlords would kill the rental code. A win for the city would protect the code, but it wouldn’t give the city the warrants it seeks.

At the state level, however, a win for the landlords would deny search warrants, but a judge might not invalidate the whole code.

If the courts reach conflicting decisions, both cases could move into appellate courts.

“It’s a mess,” said Institute for Justice attorney Dana Berliner.

The controversy began in February 2005 when the city adopted a rental code to address concerns about rental property. When some landlords objected and refused to consent to inspections, the city sought to gain access via administrative search warrants it hoped a District Court judge would grant.

First District Court Judge Thomas Bibus denied the city’s request for warrants on a technicality in August 2007. He ruled the city’s code didn’t give it the right to conduct the searches, as it had been doing.

The city quickly amended its code to grant it the necessary authority. While doing that, they also cut some controversial parts of the code.

Since it revamped its rental code, the city has resumed its pursuit of search warrants at the District Court level. That’s the case that will be heard May 2.

Tags: news, rental, code