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Inspection ordinance reaches Supreme Court again

ST. PAUL -- The city of Red Wing's rental housing inspection code reached the state's highest court for the second time Tuesday as justices heard arguments on the constitutionality of pieces of the ordinance.

Under the city's ordinance, rental housing inspectors can apply for administrative warrants from a judge to enter properties if landlords or tenants refuse initial inspections.

The Institute for Justice, a law firm representing nine landlords and two tenants challenging the ordinance, has argued that provision violates the right to privacy and to be "free from unreasonable searches," as guaranteed in the Second Amendment.

"Under Red Wing's program, ordinary law-abiding citizens get less protection than criminals," the Institute of Justice argued.

Attorney John Baker, representing the city of Red Wing, said if the court overturns the city's ordinance it would make Minnesota "the most difficult place in the country for a community to conduct a rental housing inspection program."

Inspections are needed for public safety and health reasons, among others, Baker said.

"You can't watch on the outside and determine there is faulty wiring on the inside," he said as an example.

Attorney Dana Berliner for the Institute for Justice said the court "is weighing the interests at stake here," including tenants' privacy, against the interest of doing home inspections.

She argued the administrative warrant itself causes problems.

"Part of the injury is the application for the warrant," Berliner said, noting landlords or tenants then have to go to court to argue against the warrant.

The city has applied for such warrants in the past but has not been successful in getting them approved.

The Supreme Court justices asked a number of questions of both sides Tuesday and will issue their opinion after deliberating. Baker said after the arguments that there is no set timeframe for the opinion, but he said he hopes it will be released by fall.

The case has been ongoing for more than six years. In June of 2012, the Minnesota Court of Appeals sided with the city, and the Institute for Justice filed a petition in July for Supreme Court review. That appeals court ruling followed a December 2011 Minnesota Supreme Court decision that the case could move forward.

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

The city has made a number of changes to its code since its adoption, but it has remained tied up in litigation.

Danielle Killey

Danielle Killey covers local government for the South Washington County Bulletin. She has worked as a reporter for other Forum Communications newspapers since 2011. She graduated from the University of Minnesota-Twin Cities with a journalism degree.

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