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Supreme Court issues opinion on rental code case

Minnesota's highest court says Red Wing's rental inspection ordinance is not unconstitutional on its face.

In an opinion issued Friday, the court said for it to rule the ordinance unconstitutional at this point "appellants must demonstrate that every warrant to conduct an (inspection) will be issued without individualized suspicion."

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."

The justices said the ordinance can be applied constitutionally because a judge could require the city to bring forth evidence to issue a warrant.

"Whether the Minnesota Constitution requires individualized suspicion for housing code searches is an unsettled question," Justice Alan Page wrote in the opinion.

The Institute for Justice attorneys did not prove the ordinance is unconstitutional in all applications, the court ruled, which is required at this point since the city has not obtained any administrative warrants. The city has unsuccessfully sought a handful of them in the past.

In a concurring opinion, outgoing Justice Paul Anderson said in a future case where an administrative warrant has actually been issued, courts should seriously consider whether it is applied constitutionally.

"We have been to the Minnesota Supreme Court twice already, and I look forward to the third time," Institute for Justice attorney Dana Berliner said. "Justice Paul Anderson's concurrence backs our firm conviction that warrants issued without probable cause are unconstitutional in Minnesota."

Attorney John Baker, representing the city of Red Wing, told justices in February inspections are needed for public safety and health reasons, among others.

Berliner had argued the warrant application alone was an injury because landlords or tenants then have to go to court to fight the warrant.

The city has made a number of changes to its rental inspection code since its adoption in 2005, but it has remained tied up in litigation 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 the constitutionality of the city's ordinance can be questioned.

The city of Red Wing's rental housing inspection code reached the state's highest court for the second time in February. This time, the court was to address the constitutionality issue.

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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