In the Iowa Supreme Court
No. 23–1600
Submitted November 13, 2024—Filed December 20, 2024
Bryan C. Singer, Erika L. Nordyke, Beverly A. Van Dam, Joshua L. Dykstra, 3D Rentals, LLC, and DP Homes, LLC,
Appellees,
vs.
City of Orange City and Kurt Frederes,
Appellants.
Appeal from the Iowa District Court for Sioux County, Jeffrey A. Neary,
judge.
A city appeals from an order declaring an ordinance unconstitutional.
Reversed and Remanded.
May, J., delivered the opinion of the court, in which all justices joined.
Zachary D. Clausen (argued) and Douglas L. Phillips of Klass Law Firm,
L.L.P., Sioux City, for appellant.
John G. Wrench (argued) and Robert Peccola of Institute for Justice,
Arlington, Virginia, and Alan R. Ostergren of The Kirkwood Institute, Des Moines,
for appellee.
Xinge Hong of American Civil Liberties Union Foundation, New York, New
York, and Rita Bettis Austen of ACLU of Iowa Foundation, Inc., Des Moines, for
amicus curiae American Civil Liberties Union of Iowa. 2
May, Justice.
Orange City passed an ordinance that requires periodic inspections of
rental properties. If a city inspector needs to enter a rental property to conduct
an inspection, and “[i]f entry is refused,” then the ordinance authorizes the
inspector to seek “remedies provided by law to secure entry, including, but not
limited to, obtaining an administrative search warrant to search the rental unit.”
In this case, certain owners and renters of rental units assert a facial
challenge against the ordinance. They claim that the ordinance’s mandatory
inspection regime violates article I, section 8 of the Iowa Constitution because it
permits the City to seek warrants but does not expressly require the City to show
“probable cause” in the traditional criminal-investigation sense, that is, reason
to believe that a violation has occurred with respect to a particular rental unit.
We disagree. In a facial challenge, the challenger must show that no
application of the ordinance could be constitutional under any set of facts. But
we think that there are sets of facts where the ordinance could operate without
violating article I, section 8. For instance, the ordinance expressly permits
private inspectors to conduct the required inspections. When that occurs, the
property is exempt from inspection by city officials. No government official will
enter—nor seek an administrative warrant to enter—the rental home. In that set
of facts, constitutional warrant requirements are not even implicated, much less
offended.
The facial challenge cannot succeed. We reverse the district court’s
contrary ruling.
I. Background.
A. The Ordinance. Iowa Code chapter 364 addresses cities’ powers and
responsibilities. Iowa Code §§ 364.1–.25 (2021). Section 364.17 requires cities 3
with populations of fifteen thousand or more to adopt a housing code. Id.
§ 364.17(2). Section 364.17 also permits smaller cities to adopt a housing code.
Id. § 364.17(6). Either way, if a city adopts a housing code, the city must “adopt
enforcement procedures, which [must] include a program for regular rental
inspections, rental inspections upon receipt of complaints, and certification of
inspected rental housing.” Id. § 364.17(3)(a).
In February 2021, Orange City adopted “Ordinance No. 825.” The
ordinance supplements the City’s existing building code by adding provisions
that govern rental housing units.
The new provisions require owners of rental units to obtain permits from
the City. The provisions also create a program for regular inspections of rental
properties. This program is described primarily in section 4.08 of the ordinance,
which states in part:
The Code Enforcement Department shall inspect all rental units being offered as a rental in the City of Orange City every five(5) years. As part of the revolving inspection process the Code Enforcement Department may require, that a re-inspection be held at a time sooner than five(5) years if concerns or violations were found during previous inspections or the Code Enforcement Department receives complaints of possible Building Code violations of a rental unit during the five (5) year term.
Inspections of a rental unit shall be subject to the following terms and conditions:
1. The City shall notify the owner/landlord of its intent to inspect a rental unit at least 15-days prior to a scheduled inspection. It is the owner/landlord’s responsibility to notify the tenants of the date/time of inspection prior to the inspection.
2. Inspections shall not be conducted without the property owner or owner’s representative present unless owner or owner’s representative gives their permission to the City to inspect without them being present prior to the inspection.
3. Inspections shall be consistent with the applicable building codes adopted by the City of Orange City. 4
The next section of the ordinance, section 4.09, is entitled “right of entry.” Here
is its text:
If it is necessary for a code official to conduct an inspection in order to enforce the provisions of this code and, in doing so, requires access to the rental. The inspector may enter the rental at reasonable times to inspect or to perform duties imposed by this policy. If such rental is occupied the inspector shall present credentials to the occupant before entry. If entry is refused the inspector shall have recourse to the remedies provided by law to secure entry, including, but not limited to, obtaining an administrative search warrant to search the rental unit.
(Emphasis added.) It is important to note, however, that the ordinance also
provides a way to opt out of its inspection-by-government-official program. In
section 4.02(2), entitled “exempt rentals,” the ordinance states:
Rental units that are inspected by a certified third-party inspection organization will not require an inspection from the City of Orange City. The Code Enforcement Department of the City of Orange City will maintain a list of all rental units that are exempt from the inspection requirements of this ordinance.
B. This Dispute. Soon after the ordinance passed, Orange City sent letters
to all owners of rental properties within the city. The letters announced the
ordinance’s passage. Enclosed with the letters were “Application[s] for Rental
Permit[s]” that owners would need to fill out and submit to the City. The
applications provided a phone number that owners could call to schedule rental
inspections.
In April, protest letters were mailed to Orange City by certain owners of
rental properties (owners) and by the renters of those properties (renters). The
protesting owners were 3D Rentals, LLC, and DP Homes, LLC. The protesting
renters were Amanda Wink, Bryan Singer, and Erika Nordyke.
The renters’ letters asserted that they would “not voluntarily allow”
inspections of their rental homes. As authority, the renters cited article I, 5
section 8 of the Iowa Constitution. The owners’ letters expressed support for
their renters’ rights.
In May, Orange City sent responsive letters to the owners and renters. The
letters were signed by Kurt Frederes, the Orange City Code Enforcement Officer.
The letters explained:
At this time Orange City intends to continue to follow the process of the Rental Ordinance including inspection of your property.1 At the time of setting up the rental inspection for your property, Orange City will contact you to set up time for these inspections and expect to complete the inspections on the property. In the event that the inspections are refused, the City at that time will take the necessary steps to complete the process per the terms of the ordinance.
C. This Lawsuit. That same month, the owners and renters (collectively,
“the citizens”) commenced this lawsuit against Orange City and Frederes
(collectively, “the City”). Their petition asked for a declaration that the
ordinance’s inspection requirements violated article I, section 8 of the Iowa
Constitution, injunctive relief against the City, and nominal damages.
Following discovery, the parties filed cross-motions for summary
judgment.2 The district court denied the City’s motion, granted the citizens’
motion, and awarded nominal damages of one dollar to each citizen. The court
“[d]eclare[d] unconstitutional the mandatory inspection requirement of
Ordinance No. 825” and permanently enjoined the City “from seeking an
administrative warrant to conduct inspections authorized under the current
language set forth in the City’s ordinance.”
The City now appeals. Our review is de novo. City of Sioux City v.
Jacobsma, 862 N.W.2d 335, 339 (Iowa 2015).
1Where appropriate, the letters used the plural “properties.”
2Prior to the filing of the citizens’ motion for summary judgment, Amanda Wink
voluntarily dismissed her claims. Wink is not a party to this appeal. 6
II. Analysis.
A. The Citizens’ Challenge. We begin our analysis with some additional
explanation of the citizens’ challenge. As will be explained, their challenge is
largely about the similarities—and potential differences—between the warrant
requirements of the Fourth Amendment to the United States Constitution, on
the one hand, and the warrant requirements of article I, section 8 of the Iowa
Constitution, on the other.
As this court has recognized, the texts of those two provisions are
essentially identical:
Fourth Amendment to the United Article I, section 8 of the Iowa States Constitution Constitution The right of the people to be secure The right of the people to be in their persons, houses, papers, secure in their persons, houses, and effects, against unreasonable papers and effects, against searches and seizures, shall not be unreasonable seizures and violated, and no Warrants shall searches shall not be violated; issue, but upon probable cause, and no warrant shall issue but on supported by Oath or affirmation, probable cause, supported by and particularly describing the place oath or affirmation, particularly to be searched, and the persons or describing the place to be things to be seized. searched, and the persons and things to be seized.
We have also recognized that article I, section 8 “as originally understood,
was meant to provide the same protections as the Fourth Amendment, as
originally understood.” State v. Burns, 988 N.W.2d 352, 360 (Iowa 2023) (quoting
State v. Wright, 961 N.W.2d 396, 412 (Iowa 2021)). So it is not surprising that
our interpretations of article I, section 8 have often “tracked with” federal courts’
interpretations of the Fourth Amendment. Id. (quoting Kain v. State, 378 N.W.2d
900, 902 (Iowa 1985)).
But federal courts’ interpretations of the Fourth Amendment do not dictate
our interpretation of article I, section 8. See State ex rel. Kuble v. Bisignano, 7
28 N.W.2d 504, 508 (Iowa 1947). Rather, we are “the final arbiter” of article I,
section 8’s meaning. Burns, 988 N.W.2d at 360 (quoting West v. Am. Tel. & Tel.
Co., 311 U.S. 223, 236 (1940)). And we recognize “our duty to interpret article I,
section 8 independently,” State v. Brown, 930 N.W.2d 840, 847 (Iowa 2019), and,
where appropriate, to construe it “differently than its federal counterpart,” id.
(quoting State v. Brooks, 888 N.W.2d 406, 410–11 (Iowa 2016)). “We also
recognize our duty to ‘interpret our constitution consistent with the text given to
us by our founders,’ and to ‘give the words used by the framers their natural and
commonly-understood meaning’ in light of the ‘circumstances at the time of
adoption.’ ” Burns, 988 N.W.2d at 360 (first quoting State v. Green, 896 N.W.2d
770, 778 (Iowa 2017); then quoting State v. Senn, 882 N.W.2d 1, 8 (Iowa 2016)).
It follows that when federal courts’ interpretations of the Fourth Amendment are
not consistent with the text and history of article I, section 8, we may conclude
that those federal court interpretations should not govern our interpretation of
article I, section 8. Id.
That very situation, the citizens say, is presented by Orange City’s
ordinance and its authorization of administrative warrants. In the citizens’ view,
the text and history of article I, section 8 prohibit the issuance of any
warrant—administrative or otherwise—without the same probable-cause
showing that we require for criminal-investigation warrants, that is, a reason to
believe that an offense has been committed. See, e.g., State v. Seiler, 342 N.W.2d
264, 266 (Iowa 1983) (en banc) (describing the probable-cause showing required
for criminal-investigation warrants). But federal courts have interpreted the
Fourth Amendment differently. Since the Supreme Court’s 1967 decision in
Camara v. Municipal Court, 387 U.S. 523 (1967), federal courts have read the
Fourth Amendment to allow issuance of administrative warrants on a lesser 8
showing. Specifically, Camara held that in the context of administrative warrants
for rental inspections, the Fourth Amendment’s probable-cause requirement is
satisfied
if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building (e.g., a multifamily apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling.
Id. at 538.
There is a substantial gap, then, between the citizens’ reading of article I,
section 8, on the one hand, and the federal Camara standard, on the other. While
the citizens’ reading of article I, section 8 would require evidence of an actual
violation within a rental dwelling before a warrant can issue, the federal Camara
standard would permit administrative warrants to issue without any “specific
knowledge” of a violation within a “particular dwelling.” See id.
What really troubles the citizens, though, is that the City’s ordinance does
not fill that gap. Although the ordinance permits the City to request
administrative warrants, the ordinance does not expressly require a traditional
showing of probable cause. Because the ordinance does not expressly impose
that requirement, the citizens contend, the ordinance’s inspection regime
violates article I, section 8. And so the district court was right to declare that
regime unconstitutional.
We disagree. For one thing, we note that in State v. Carter, our court said
that the Camara standard applies under both the Fourth Amendment and
article I, section 8. 733 N.W.2d 333, 336–37 (Iowa 2007). But even if we were to
disavow Carter’s pronouncement and hold that article I, section 8 requires 9
traditional probable cause for administrative search warrants, we would still
reject the citizens’ challenge to the ordinance.
To understand why, it is important to recognize that the citizens’ challenge
is not an “as applied” challenge, that is, a challenge to the application of the
ordinance to “a particular set of facts,” such as an already-accomplished
inspection or an already-issued warrant. Kluender v. Plum Grove Invs., Inc.,
985 N.W.2d 466, 470 (Iowa 2023) (quoting Bonilla v. Iowa Bd. of Parole,
930 N.W.2d 751, 764 (Iowa 2019)).3
Rather, the citizens are challenging the ordinance itself or, to be more
specific, its mandatory inspection requirement. They ask for this entire aspect of
the ordinance to be declared invalid. This request is properly understood as a
facial challenge.
Because the citizens bring a facial challenge, they must meet our very high
standards for such challenges. See, e.g., Summit Carbon Sols., LLC, v. Kasischke,
___N.W.3d___,___, 2024 WL 4861721, at *4–9 (Iowa Nov. 22, 2024) (rejecting
facial challenge); State v. Hightower, 8 N.W.3d 527, 540–41 (Iowa 2024) (same);
Kluender, 985 N.W.2d at 470–73 (same); State v. West Vangen, 975 N.W.2d 344,
353–54 (Iowa 2022) (same); League of United Latin Am. Citizens of Iowa v. Pate,
950 N.W.2d 204, 208–14 (Iowa 2020) (per curiam) (same).
3At oral argument, the citizens asserted that they were bringing an as-applied challenge
in addition to a facial challenge. But we do not interpret the citizens’ petition as raising an as-applied challenge. Nor do we interpret the citizens’ appellate brief as raising an as-applied challenge. So we do not consider an as-applied challenge. See State v. Houts, 622 N.W.2d 309, 311–12 (Iowa 2001) (en banc). Moreover, even if an as-applied challenge were presented, it could not proceed. No warrant has been sought, no warrant has issued, and no inspection has occurred with respect to the citizens’ rental properties. So any as-applied challenge would not be ripe. See State v. Harrison, 914 N.W.2d 178, 204–05 (Iowa 2018); State v. Tripp, 776 N.W.2d 855, 858–59 (Iowa 2010); Citizens for Responsible Choices v. City of Shenandoah, 686 N.W.2d 470, 473–75 (Iowa 2004); see also Carlson v. City of Duluth, 958 F. Supp. 2d 1040, 1056 n.4, 1060 (D. Minn. 2013) (concluding that the plaintiff’s as-applied challenge was not ripe because “[a]t the hearing, . . . he had not yet applied for a license under the City Ordinance”). 10
In a facial challenge, the challenger must prove that the targeted ordinance
is “totally invalid and therefore, ‘incapable of any valid application.’ ” Bonilla,
930 N.W.2d at 766 (quoting Santi v. Santi, 633 N.W.2d 312, 316 (Iowa 2001)).
This sort of challenge is the “most difficult” to “ ‘mount successfully’ because it
requires the challenger to show [that] the statute [or ordinance] under scrutiny
is unconstitutional in all its applications.” Id. (quoting Honomichl v. Valley View
Swine, LLC, 914 N.W.2d, 223, 231 (Iowa 2018), overruled on other grounds by
Garrison v. New Fashion Pork LLP, 977 N.W.2d 67 (Iowa 2022)). Challenges of
this kind are “disfavored for several reasons.” Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 450 (2008).
Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of “premature interpretation of statutes on the basis of factually barebones records.” Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither “ ‘anticipate a question of constitutional law in advance of the necessity of deciding it’ ” nor “ ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ ” Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that “ ‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’ ”
Id. at 450–51 (alteration in original) (first quoting Sabri v. United States, 541 U.S.
600, 609 (2004); then quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288,
346–47 (1936) (Brandeis, J., concurring) (quoting Liverpool, N.Y. & Phila. S.S.
Co. v. Comm’rs of Emigration, 113 U.S. 33, 39 (1885)); and then quoting Ayotte v.
Planned Parenthood of N. New Eng., 546 U.S. 320, 329 (2006) (quoting Regan v.
Time, Inc., 468 U.S. 641, 652 (1984) (plurality opinion))).
B. Application. We now apply these principles to the citizens’ facial
challenge. If our analysis reveals that “there is any set of facts where” the 11
ordinance’s inspection regime could operate without violating article I, section 8,
“we will reject the facial challenge.” Summit Carbon Sols., LLC, ___N.W.3d at ___,
2024 WL 4861721, at *4; accord Bonilla, 930 N.W.2d at 764 (“A facial challenge
is one in which no application of the statute could be constitutional under any
set of facts.” (quoting Honomichl, 914 N.W.2d at 231)).
Under this standard, the citizens’ facial challenge must be rejected. It must
be rejected because there are sets of facts where the ordinance could operate
without violating article I, section 8. Here are three examples.
First, although the citizens emphasize situations where traditional
probable cause will be absent, we can readily anticipate circumstances where
traditional probable cause will be present. For instance, suppose a reliable
neighbor reports to the city that a certain rental property has no smoke
detectors. That report would surely satisfy traditional notions of probable cause.
In that circumstance, the ordinance would authorize the City to seek an
administrative warrant while also satisfying article I, section 8 as the citizens
understand that provision. So, even under the citizens’ reading of article I,
section 8, the ordinance’s warrant provisions can sometimes operate
constitutionally.
Second, although the citizens focus on warrants, warrants are not the
City’s only option. Section 4.09 of the ordinance provides that “[i]f entry is
refused the [City] inspector shall have recourse to the remedies provided by law
to secure entry, including, but not limited to, obtaining an administrative search
warrant to search the rental unit.” (Emphasis added.) Thus, the ordinance
plainly authorizes the City to pursue legal options that do not involve warrants.
And, as the City notes, those nonwarrant legal proceedings could well include
traditional due process features such as notice to the renters and opportunity to 12
be heard. Those nonwarrant proceedings may provide additional opportunities
for the ordinance to operate without violating constitutional warrant
requirements.
Finally, although the ordinance requires inspections of rental properties,
it does not require that a city official perform those inspections. Section 4.02(2)
of the ordinance defines “Exempt rentals” and goes on to state that “[r]ental units
that are inspected by a certified third-party inspection organization will not
require an inspection from the City of Orange City.” This provides a clear path
for private parties—not city officials—to conduct the needed inspections. And if
no city official needs to perform an inspection, there will be no need for an
administrative warrant and therefore no violation of article I, section 8’s warrant
requirements. See, e.g., Infinite Green, Inc. v. Town of Babylon, 162 N.Y.S.3d 424,
427–28 (App. Div. 2022) (holding that a town code that provided a
third-party-inspection alternative did not violate “the United States Constitution
or the New York Constitution against unreasonable searches and seizures”).
These examples demonstrate that the ordinance’s mandatory inspection
regime can operate without violating article I, section 8. Therefore, the citizens’
facial challenge cannot succeed.
III. Conclusion.
Because there are situations where the City’s inspection requirement can
operate constitutionally, the citizens’ facial challenge fails. The district court
erred in granting summary judgment in favor of the citizens and against the City.
We reverse and remand for further proceedings consistent with this opinion.