Court upholds city's rental inspection code

The Minnesota Court of Appeals sided with the city in a ruling released Monday on Red Wing’s rental inspection code, and opponents have said they will now petition the state’s highest court to hear the case.

The appeals court ruled that those challenging the ordinance had not proven it was unconstitutional, as they claimed.

“Appellants have not established that the (rental code) is unconstitutional on its face … on the ground that it permits the issuance of administrative search warrants by a judicial officer, without an individualized showing of suspicion that particular code violations exist,” retired Judge Larry Collins, serving on the appeals court, wrote in the opinion.

Under the city’s code, inspectors can enter properties if landlords or tenants refuse initial inspections provided inspectors get approval from a judge. The city has applied for administrative warrants for inspections in the past but has not been successful.

The appeals court upheld earlier rulings on the case. The move came after the Minnesota Supreme Court ruled in December that the case could move forward.

The issue has been tied up in litigation for years as local tenants and landlords fought pieces of the code that they see as unconstitutional.

“The tenants and landlords in this case demonstrated Red Wing’s program violates the right to be secure in one’s home and to be free from unreasonable searches,” Institute for Justice Minnesota chapter attorney Anthony Sanders said. “Whether this kind of search is even allowed under the Minnesota Constitution is an important and timely issue that the Minnesota Supreme Court has never decided.”

“It doesn’t create any risk that housing inspectors will use their position to push their way into private homes for the purposes of an inspection,” attorney John Baker, representing the city of Red Wing, argued.

Collins also said the city’s Rental Dwelling Licensing Code puts limits on the inspectors’ abilities and what they can report.

“The RDLC that is being challenged by appellants here clearly limits the discretion of housing inspectors in the field,” Collins wrote.

Baker said he wasn’t surprised by Monday’s ruling.

“This ruling doesn’t change the law in any respect,” he said. “It just reaffirms that a precedent that’s been in place for 45 years continues to be in place in Minnesota.”

But the Institute for Justice has said it will petition the Minnesota Supreme Court to review the case.

“Our clients are determined to continue their defense of all Minnesotans’ liberty and privacy,” Sanders said.

“In this ruling, the Court of Appeals simply decided to follow federal precedent and dismissed the idea that the Minnesota Constitution offered greater protection,” Institute for Justice attorney Dana Berliner said in a statement. “Now, only the Minnesota Supreme Court can decide this important question of Minnesota constitutional law.”

The Institute for Justice has 30 days to petition the court, Baker said.

Baker said the percentage of cases the Supreme Court chooses to hear is low. And while the case has been before that court before, “that appeal had nothing to do with the substance of their claim and was a jurisdictional question,” Baker said.

“I don’t view that as foreshadowing that the Supreme Court would want to see this a second time,” though it could, he said.

While the merits of the ordinance were discussed during oral arguments in May 2011, the case before the Supreme Court more narrowly focused on determining at what point citizens can question the constitutionality of the city's ordinance. This time, the court would address the constitutionality issue.

The city established the ordinance in 2005, Collins wrote in his opinion. It amended the language in the ordinance twice but still couldn’t avoid legal battles that have gone on for years.

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