McCaughtry v. City of Red Wing

831 N.W.2d 518, 2013 WL 2363236, 2013 Minn. LEXIS 308

• Court: Supreme Court of Minnesota
• Decided: May 31, 2013
• Docket: No. A10-0332
• Status: Published

Opinions

OPINION

PAGE, Justice.

This case involves a facial challenge to the constitutionality of respondent City of Red Wing’s rental property inspection ordinance. Appellants are nine landlords and two tenants who brought suit seeking a declaration that the City’s ordinance violates Article I, Section 10, of the Minnesota Constitution. The district court granted summary judgment in favor of the City, concluding that appellants lacked standing and that the state constitutional claim failed on the merits. Agreeing with the district court that appellants lacked standing, the court of appeals affirmed. We reversed, holding that appellants’ facial challenge presented a justiciable controversy. McCaughtry v. City of Red Wing, 808 N.W.2d 331 (Minn.2011) (McCaughtry I). On remand, the court of appeals again affirmed the district court, this time concluding that the City’s ordinance did not violate the Minnesota Constitution. Because appellants have not satisfied their burden in a facial challenge to show that the ordinance operates unconstitutionally in all of its applications, we affirm.

In February 2005, the City enacted a rental inspection and licensing ordinance as part of its Housing Maintenance Code (HMC) and Rental Dwelling Licensing Code (RDLC).¹ See Red Wing, Minn., City Code §§ 4.03-.04 (2012). The HMC establishes minimum standards to which all residential buildings (with certain limited exceptions) must conform. See id. § 4.03, subd. 5. The RDLC, in turn, prohibits any person from operating or leasing a rental dwelling unit without first having obtained an operating license from the City, although landlords may obtain temporary permits allowing them to lease property for which an operating license has not yet been issued. Id. § 4.04, subd. 1(A) & 1(A)(1). Operating licenses are valid for 7 years. Id. § 4.04, subd. 1(A)(2). But the City may not issue or renew an operating license unless it determines that the rental property conforms to the HMC. Id. § 4.04, subd. 1(C).

The RDLC grants the City authority to inspect residential property under certain circumstances. First, the City may inspect all residential property, whether rental property or owner-occupied property, “when reason exists to believe that a violation of an applicable subdivision of the HMC exists, has been, or is being committed.” Id. § 4.04, subd. 1(C) & 1(C)(3). Second, the City may also inspect rental property (1) “upon receipt of a properly executed application for an operating license,” id., § 4.04, subd. 1(C)(2), or (2) “on a scheduled basis,” id. § 4.04, subd. 1(C) & 1(C)(1). The ordinance refers to inspections performed on a scheduled basis or upon receipt of an application for an operating license as “Licensing Inspections.” Id. § 4.04, subd. 1(C)(2).

When the City conducts a Licensing Inspection, it must first seek consent to inspect from the owner and tenant. Id. § 4.04, subd. 1(C)(8). If consent cannot be obtained, the “City shall seek permission, from a judicial officer through an administrative warrant, for its enforcement officer or his or her agents to conduct an inspection.” Id. § 4.04, subd. 1(C)(9). The ordinance does not describe the procedures for seeking a warrant or the conditions under which a warrant should be granted. Rather, the ordinance simply provides that “[njothing in this Code shall limit or constrain the authority of the judicial officer to condition or limit the scope of the administrative warrant.” Id.

After adoption of the rental inspection and licensing ordinance, the City contacted appellants seeking consent to inspect their rental properties. But appellants refused to consent, and the City sought administrative warrants against them in Goodhue County District Court. Appellants opposed the warrant applications and brought two declaratory judgment actions challenging the RDLC on several grounds. In particular, appellants claimed that the RDLC’s warrant procedure violated Article I, Section 10, of the Minnesota Constitution because it authorized the City to obtain a search warrant without individualized suspicion of a housing code violation on appellants’ property. Appellants acknowledged that, in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), the Supreme Court held that the Fourth Amendment does not require that a warrant to conduct a housing code inspection be based on knowledge of the particular dwelling to be inspected. Id. at 538, 87 S.Ct. 1727. But appellants argued that the Minnesota Constitution should be interpreted more broadly than its federal counterpart so as to require individualized suspicion before a court may issue an administrative warrant. Appellants’ declaratory judgment actions were consolidated with the City’s administrative warrant applications. The City moved for summary judgment, challenging both the merits of appellants’ constitutional claim and their standing to assert the claim.

The district court denied the City’s warrant applications on federal constitutional grounds not relevant here. But the court granted summary judgment to the City on the declaratory judgment claims. The court concluded that, because appellants had not yet had an administrative warrant issued against them, they had “not suffered an injury that is actual or imminent.” The district court also noted that “per the plain language of the RDLC,” a judge reviewing an application for an administrative warrant “is specifically authorized to condition or limit the scope of the warrant as appropriate.” Thus, the district court concluded that an application for an administrative warrant “might possibly be approved in such a manner” that no constitutional violation occurs. But, in the interest of judicial economy, the district court nonetheless considered the merits of appellants’ constitutional claim under Article I, Section 10, and denied that claim on the merits.

Appellants appealed, challenging the district court’s ruling on both standing and the merits of their claim under the Minnesota Constitution. The court of appeals affirmed on standing grounds and did not address the merits of the constitutional claim. See McCaughtry v. City of Red Wing, No. A10-0332, 2010 WL 3744638, at *3-4 (Minn.App. Sept. 28, 2010). We granted review and reversed, determining that, because the relevant issue was “when” suit could be brought rather than “who” could bring it, the issue was one of ripeness, not standing. McCaughtry I, 808 N.W.2d at 338. We held that appellants’ constitutional claim was ripe because they brought a purely legal, facial challenge to the RDLC that does not depend on the development of a factual record. Id. at 339. We therefore remanded the matter to the court of appeals for consideration of the merits of the constitutional challenge. Id. at 341. On remand, the court of appeals affirmed on the merits. McCaughtry v. City of Red Wing, 816 N.W.2d 636 (Minn.App.2012).

The sole issue in this case is whether, on its face, the RDLC’s Licensing Inspections provision violates Article I, Section 10, of the Minnesota Constitution, which prohibits unreasonable searches and seizures. Constitutional interpretation presents a legal question, which we review de novo. State v. Brooks, 604 N.W.2d 345, (Minn.2000). We exercise our power to declare laws unconstitutional “with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). A city “ordinance [is] presumed constitutional, and the burden of proving that [it is] unconstitutional is on the appellants.” Minn. Voters Alliance v. City of Minneapolis, 766 N.W.2d 683, 688 (Minn.2009).

Because an administrative warrant has not yet been issued against them, appellants challenge the City’s ordinance on its face, rather than as applied. We have stated that “in a facial challenge to constitutionality, the challenger bears the heavy burden of proving that the legislation is unconstitutional in all applications.” Id. at 696; see also United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (a facial challenge is “the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid”); McCaughtry I, 808 N.W.2d at 339 (stating that a “facial challenge asserts that a law ‘always operates unconstitutionally’ ”) (quoting Black’s Law Dictionary 261 (9th ed.2009)). The Supreme Court explained the rationale for this heavy burden:

Facial challenges are disfavored for several reasons. 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.

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450-51, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (citations omitted) (internal quotation marks omitted). Thus, if we identify a single situation in which the RDLC’s Licensing Inspection provision might be applied constitutionally, appellants’ facial challenge fails. See Minn. Voters Alliance, 766 N.W.2d at 694 (stating that “[i]n a facial challenge, once a constitutional application is identified, it is inappropriate to speculate regarding other hypothetical circumstances that might arise”); Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L.Rev. 235, 241 (1994) (“Under the ‘no set of circumstances’ test, the government need only produce an example in which the statute could be applied constitutionally to defeat the facial challenge.”).

The crux of appellants’ constitutional challenge is that the ordinance allows the City to obtain warrants to conduct Licensing Inspections without any individualized suspicion of a housing code violation. Whether the Minnesota Constitution requires individualized suspicion for housing code searches is an unsettled question. As discussed above, in order for us to resolve that question in the context of a facial challenge, appellants must first show that resolution of the question in their favor would render the ordinance unconstitutional in all of its applications. Stated differently, appellants must demonstrate that every warrant to conduct a Licensing Inspection under the RDLC will be issued without individualized suspicion. If a situation in which individualized suspicion might be required for a Licensing Inspection can be identified, then, even under appellants’ interpretation of the constitution, the ordinance would not be unconstitutional in all its applications and their facial challenge would fail.

Appellants argue that we endorsed the use of a facial challenge to the ordinance in our ruling in McCaughtry I. Appellants also argue that they can meet their burden in this case “because the text of the ordinance itself plainly authorizes ‘administrative warrants’ instead of warrants requiring traditional probable cause.”² The City argues that appellants cannot meet their heavy burden because the RDLC does not preclude a judge from requiring individualized suspicion before issuing a warrant and thus, even under appellants’ interpretation of Article I, Section 10, the ordinance is capable of being applied in a constitutional fashion.

We begin with appellants’ claim that our decision in McCaughtry I is dispositive. In McCaughtry I, we held that appellants’ claim was ripe because their facial challenge presented “a purely legal question that does not require the development of a factual record.” 808 N.W.2d at 339. Because their challenge raised a “constitutional issue that ... is neither hypothetical nor abstract,” we concluded that “there [wa]s no reason to delay resolution of the constitutional question[].” Id. at 339-40. We also rejected the City’s argument that the case was not ripe because a judge acts as gatekeeper for the issuance of an administrative warrant:

In arguing that appellants’ claims here are not justiciable, the City also relies on the fact that “a judge always stands between the City and its ability to conduct any inspection of Plaintiffs’ properties.” However, there is no probable cause or other standard set out in the ordinance, and the City essentially is arguing that appellants must wait and hope that a judge will “write in” the correct constitutional limitations on the warrant power. The possibility that a judge might in the future limit the City’s administrative warrant application to ensure that the warrant comports with the Minnesota Constitution does not make the challenge here premature.

Id. at 341.

But McCaughtry I dealt with the specific issue of whether appellants’ claims were unripe because a warrant had not yet been issued against them. Ripeness goes to the issue of justiciability, which is a threshold question in every case because it determines whether a court has jurisdiction to pass on the constitutionality of a law and issue a declaratory judgment. See Kennedy v. Carlson, 544 N.W.2d 1, 6 (Minn.1996) (“A justiciable controversy must exist before Minnesota courts have jurisdiction to issue a declaratory judgment regarding the constitutionality of a statute.”); see also Worth v. Seldin, 422 , 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Because the issue of justicia-bility goes to a court’s power to hear a case at all, it is a separate and distinct question from the merits of the suit. We recognized this in McCaughtry I when we stated that, “[bjecause the issue raised in this court is one of justiciability, ‘we need not reach the merits of the underlying controversy at this time.’ ” 808 N.W.2d at 341 (quoting Holiday Acres No. 3 v. Midwest Fed. Sav. & Loan Ass’n of Minneapolis, 271 N.W.2d 445, 447 (Minn.1978)). Therefore, our statement in McCaughtry I that “there [wa]s no reason to delay resolution of the constitutional question[ ]” must be read in context. Likewise, although we held in McCaughtry I that the ability of a judge to limit the issuance of a warrant did not render a court without power to consider a facial challenge to the ordinance, we did not hold that appellants could or would be able to meet the requirements for a successful facial challenge on the merits. Accordingly, we reject appellants’ argument that McCaughtry I is dis-positive and controls here.

The present appeal is the first time that we have examined the merits of the facial challenge, and the first time we have considered the question of whether appellants can show that the RDLC is unconstitutional in all of its applications. Therefore, we turn to appellants’ argument based on the text of the ordinance itself. The RDLC distinguishes between two types of inspections. First, both rental and owner-occupied property may be inspected for cause “when reason exists to believe that a violation of an applicable subdivision of the HMC exists, has been, or is being committed.” Red Wing, Minn., City Code § 4.04, subd. 1(C) & 1(C)(3). Second, rental property may also be subjected to Licensing Inspections “on a scheduled basis,” id. § 4.04, subd. 1(C) & 1(C)(1), or “upon receipt of a properly executed application for an operating license,” id. § 4.04, subd. 1(C)(2). The RDLC explicitly requires that inspections for cause be based on individualized suspicion of a housing code violation, whereas Licensing Inspections contain no similar textual requirement. From this structure, appellants argue that the RDLC clearly contemplates that Licensing Inspections will occur without individualized suspicion. Moreover, appellants note that the RDLC uses the term “administrative warrant,” which they argue is, by definition, a warrant issued without individualized suspicion.³

But the fact that the ordinance does not expressly require individualized suspicion for Licensing Inspections is not determinative of appellants’ facial challenge. Appellants must show that all warrants to conduct Licensing Inspections are issued without individualized suspicion. This they cannot do because, although the ordinance does not require individualized suspicion, it does not preclude a district court from requiring that the City establish individualized suspicion before a warrant will issue. On the contrary, as the City points out, the ordinance expressly provides that “[njothing in this Code shall limit or constrain the authority of the judicial officer to condition or limit the scope of the administrative warrant.” Red Wing, Minn., City Code § 4.04, subd. 1(C)(9). The reference to the district court’s authority to “condition ... the administrative warrant” demonstrates that — regardless of whether the ordinance authorizes suspicionless searches — the court retains the power to require individualized suspicion in any given case. And if a court may require individualized suspicion in a particular case, then we cannot, applying appellants’ constitutional standard, say that the ordinance is unconstitutional in all of its applications. See McCaughtry I, 808 N.W.2d at 339-40; Minn. Voters Alliance, 766 N.W.2d at 694-96.

Appellants argue that their facial challenge should not fail “simply because a judge might disregard the ordinance’s text and impose requirements beyond those actually in the law.” We disagree. Contrary to appellants’ characterization, a district court that requires individualized suspicion would not be disregarding the text of the ordinance, but rather would be exercising its authority under the ordinance to “condition ... the administrative warrant.” In analyzing a facial challenge, we may “presume any narrowing construction or practice to which the law is ‘fairly susceptible.’ ” City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 770 n. 11, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) (citation omitted); see also Reno v. Am. Civil Liberties Union, 521 U.S. 844, 884, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). We do so because a facial challenge circumvents the opportunity for individual courts interpreting a law to apply “a limiting construction to avoid constitutional questions.” See Wash. State Grange, 552 U.S. at 450, 128 S.Ct. 1184. In this case, the RDLC’s text is susceptible to a limiting construction that allows district courts to require individualized suspicion in any given case.

In sum, we conclude that the RDLC’s warrant mechanism for Licensing Inspections can be applied constitutionally, even under appellants’ view of the law, because a district court may require individualized suspicion before issuing a warrant in a particular case. Because the law can be applied constitutionally, appellants’ facial challenge fails and we must affirm the court of appeals. We need not decide the unsettled question of whether the Minnesota Constitution prohibits the issuance of an administrative warrant under the Red Wing Licensing Inspection ordinance absent some individualized suspicion of a housing code violation, and we express no opinion on whether appellants’ argument could succeed on an as-applied basis.

Affirmed.

1 . We previously summarized the factual and procedural background of this case in McCaughtry I and we need not recount that entire background here. Instead, we recite only those facts relevant to our decision.

2 . Appellants' facial challenge asserts that the RDLC is unconstitutional because it does not comply with probable cause requirements. But the term “probable cause” in this context is imprecise. In Camara, the Supreme Court held under the federal constitution that administrative search warrants must be based on "probable cause,” but that the probable cause required in this context means only that “reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling.” 387 U.S. at 538, 87 S.Ct. 1727. According to the Court, probable cause does "not necessarily depend upon specific knowledge of the condition of the particular dwelling.” Id. Therefore, the most accurate understanding of appellants’ complaint is not that the RDLC is unconstitutional because Licensing Inspections lack "probable cause” (as that term is defined in Camara), but because Licensing Inspections are conducted without individualized suspicion (i.e., traditional probable cause). Therefore, we use the phrase "individualized suspicion” throughout this opinion rather than "probable cause.”

3 . Black’s Law Dictionary defines an “administrative warrant” as "[a] warrant issued by a judge at the request of an administrative agency ... sought to conduct an administrative search.” Black's Law Dictionary 1722 (9th ed.2009). An "administrative search” is defined in turn as "[a] search of public or commercial premises carried out by a regulatory authority to enforce compliance with health, safety, or security regulations. The probable cause required for an administrative search is less stringent than that required for a search incident to a criminal investigation.” Id. at 1468.