When the government inspector comes to poke around your home

Our nation's founders resented the ever-present danger of an arbitrary government entering their homes. That was the chief reason the federal Constitution (as well as state constitutions) bans unreasonable searches.

But let's say you want to defend your home from an unreasonable and unconstitutional inspection program that allows government inspectors to poke around in practically every nook and cranny -- even your closets and bathroom. Would you rather challenge the government's authority to conduct such inspections when officials are knocking on your door with a warrant, or seek a legal decision striking down the questionable law before it is used to illegally enter your home?

So far, according to Minnesota courts, you have to wait for that knock on the door. But an appeal filed recently with the Minnesota Supreme Court could change that.

In a case with statewide implications for how governments conduct housing inspections, a coalition of tenants and landlords represented by the Institute for Justice -- along with other supportive groups as diverse as the ACLU of Minnesota and the Minnesota Family Council -- has asked the Minnesota Supreme Court to take its case challenging the city of Red Wing's rental inspection law.

Many cities across Minnesota -- and most in the Twin Cities metropolitan area, including Minneapolis and St. Paul -- have ordinances similar to Red Wing's. This case will determine when landlords and tenants can raise legal objections to an ordinance. Can they have their day in court so a court can rule on its constitutionality before there is an inspector knocking at their door, or must they wait to be searched and have their privacy invaded before being allowed to sue?

So far, the case has been dismissed on technical grounds called "standing." The lower courts concluded -- implausibly -- that neither the landlords nor tenants were in imminent danger of having their rights violated by the city, giving them no "standing" to sue, even though the city has three times actively sought to enter their homes and properties and will continue to do so.

Essentially, the courts are saying that they refuse even to entertain the question of whether this law is constitutional until the landlords and tenants are actually facing a government inspector at the door; only then, the courts have said, do these individuals have the right to go to court and ask a judge to strike down Red Wing's rental inspection law. But by that point, it's practically too late to fight it, and most would be too intimidated to try.

The dispute between the city of Red Wing and the tenants and landlords began in 2006, when the city first enacted an ordinance requiring it to inspect all rental homes in the city -- even when there is no apparent code violation or tenant complaint -- and later authorizing it to seek administrative warrants when anyone refuses the inspections. Since then, the city has relentlessly sought to enter the homes and properties of those challenging the law, and has submitted three warrant applications to the district court.

Three times the courts refused to issue those warrants. The landlords and tenants have opposed each search, refused consent and -- because the courts have so far refused to hear legal arguments that call the inspection law into question -- have been forced to go to court each time to defend themselves against the warrant applications and the unreasonable searches sought by the city.

Unless the Minnesota Supreme Court sets things straight, the tenants and landlords will have no choice but to spend precious resources fighting off each inspection effort one at a time, even though the law that the city is using to pursue these inspections has serious constitutional flaws. It is grossly unfair to put the burden on people who often have limited means to defend themselves continuously against unconstitutional government activity.

The Minnesota Supreme Court should also clarify that courts can hear these "declaratory judgment actions," such as the tenants and landlords have brought, whenever a city like Red Wing is actively enforcing an ordinance against them. People have the right to know whether laws passed by cities to which they are subject are constitutional. Our laws should put the burden on government to justify its actions, and not treat citizens like outlaws for challenging them.

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Jason Adkins is a staff attorney at the Institute for Justice Minnesota Chapter and legal counsel to the tenants and landlords challenging Red Wing's inspection program. The Institute for Justice describes itself as the nation's only libertarian public interest law firm.

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