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John M. Baker (#174403)Kathryn M.N. Hibbard (#387155)GREENE ESPEL, P.L.L.P.200 South Sixth StreetSuite 1200Minneapolis, Minnesota 55402-1415Tel: (612) 373-0830Fax: (612) 373-0929Emails:[email protected]
Attorneysfor Respondent City oIRed Wing
NO. A10-332
State of M innesota
In Supreme CourtRobert McCaughtry, et aI.,
Appellants)v.
City of Red Wing,Respondent.
REPLY BRIEF OF APPELLANTS
Anthony B. Sanders (#387307)Lee U. McGrath (#341502)INSTITUTE FOR JUSTICEMINNESOTA CHAPTER527 Marquette AvenueSuite 1600Minneapolis, Minnesota 55402-1330Tel: (612) 435-3451Fax: (612) 435-5875Emails: [email protected]
Dana Berliner (admitted pro hac vice)INSTITUTE FORJUSTICE901 North Glebe RoadSuite 900Arlington, Virginia 22203-1854Tel: (703) 682-9320Fax: (703) 682-9321Email: [email protected]
Attorneysfor Appellants
(Counselfor allAmici listed onfollowing page)
2011- BACHMAN LEGAL PRINTING - FAX (612) 337-8053 PHONE (612) 339-9518 or 1-800-715-3582
Jarod M. Bona (#388860)DLA PIPER LLP (US)90 South Seventh StreetSuite 5100Minneapolis, Minnesota 55402-4168Tel: (612) 524-3049Fax: (612) 524-3089Email: [email protected]
Attorneysfor Amicus Curiae,St. PaulAssociation ofResponsible Landlords
Teresa Nelson (#269736)AMERICAN CIVIL LIBERTIESUNION OF MINNESOTA2300 Myrtle AvenueSuite 180Saint Paul, Minnesota 55114Tel: (651) 645-4097, Ext. 122Fax: (651) 647-5948Email: [email protected]
Attorneysfor Amicus Curiae,American Civil Liberties Union of Minnesota
Charles R. Shreffler (#183295)SHREFFLER LAW, PLLC2700 30th Avenue SouthMinneapolis, Minnesota 55406Tel: (612) 872-8000Fax: (651) 925-0080Email: [email protected]
Attorneyfor Amicus Curiae,Minnesota FamilY Institute
Erick G. Kaardal (#229647)MOHRMAN & KAARDAL, P.A.33 South Sixth Street, Suite 4100Minneapolis, Minnesota 55402Tel: (612) 341-1074Fax: (612) 341-1076Email: [email protected]
Attorneysfor Amici Curiae,Professor RyanScott andProfessor Samuel Bray
David F. Herr (#44441)MASLON EDELMAN BORMAN &BRAND, LLP3300 Wells Fargo Center90 South Seventh StreetMinneapolis, Minnesota 55402-4140Tel: (612) 672-8350Fax: (612) 642-8350Email: [email protected]
Attorneysfor Amici Curiae,Dean EricJanus, Professor Roger S. HaydockProfessor Michael Stokes Paulsen andProfessor Gregory Sisk
Stuart R. Nostdahl (#0388427)NOSTDAHL LAW FIRM, LLCP. O. Box 19278Minneapolis, Minnesota 55419Tel: (612) 554-5275Fax: (612) 454-2576Email: [email protected]
Donald Gallick (admitted pro hac vice)Michelle Finelli (admitted pro hac vice)GALLICK SHEARD BIZUB FINELLI LLC190 North Union Street, Suite 102Akron, Ohio 44303Tel: (330) 631-6892Fax: (330) 762-9743Email: [email protected]
Attorneysfor Amici Curiae,Cato Institute, Reason Foundation andMinnesota Free Market Institute
TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
I. PLAINTIFFS SEEK REVERSAL AND REMAND ON FOURCONSTITUTIONAL CLAIMS 4
II. ENDLESS DEFENSES AGAINST THE CITY'S WARRANTAPPLICATIONS ARE NO SUBSTITUTE FOR A DECLARATORYJUDGMENt ACTION 4
III. PLAINTIFFS' CLAIMS ARE JUSTICIABLE UNDER THE MDJA 6
A. Requiring "imminent" injury in MDJA cases would defeatthe MDJA's purpose of allowing litigation ofcontroversiesat their inception 7
1. The MDJA alters the requirement of an "imminent"". . 8InJury-ln-J.ac. . .
2. The Onvoy standard covers all the essential elements ofjusticiability, including standing 10
3. The cases discussing justiciability and ripening seeds donot "presume" standing 11
B. The text of the Act, Borchard, and caselaw all show that MDJAlawsuits are particularly appropriate to challenge the validity ofordinances 12
C. Enforcing the MDJA as written and intended will not cause anexplosion oflawsuits demanding advisory opinions 15
IV. PLAINTIFFS HAVE STANDING TO CHALLENGE THE RDLC 16
A. Plaintiffs alleged many injuries that are fairly traceable to theRDLC in addition to imminent unconstitutional searches oftheir properties. . , 18
B. Having to defend against repeated warrant applications is anactual injury sufficient to confer standing , 19
C. The intervening actions of a judge hearing a warrant applicationdo not deprive Plaintiffs of standing 22
CONCLUSION 26
11
TABLE OF AUTHORITIES
Minnesota Statutes
Minnesota Uniform Declaratory Judgments Act.. passim
Minn. Stat. § 555 ..01 15
Minn. Stat. § 555.02 passim
Minnesota Cases
Arens v. Rogers, 240 Minn. 386, 61 N.W.2d 508 (Minn. 1953) 12
Barron v. City ofMinneapolis, 212 Minn. 566,4 N.W.2d 622 (1942) 14
Connor v. Twp. ofChanhassen,249 Minn. 205, 81 N.W. 2d 789 (1957) 12, 14
Holiday Acres No. 3 v. Midwest Fed. Sav. & Loan Ass 'n,271 N.W.2d 445 (Minn. 1978) 12
Int'l Soc'yfor Krishna Consciousness v. Heffron,299 N.W.2d 79 (Minn. 1980) 14
Lorix v. Crompton Corp., 736 N.W.2d 619 (Minn. 2007) 18
Minneapolis Fed'n ofMen Teachers, Local 238 v. Bd. ofEduc.,238 Minn. 154, 56 N.W.2d 203 (Minn. 1952) 11, 12
Onvoy, Inc. v. ALLETE, Inc., 736 N.W.2d 611 (Minn. 2007) passim
Truesdale v. Friedman, 270 Minn. 109, 132 N.W.2d 854 (1965) 19
Federal Cases
Amnesty Int'l USA v. Clapper, No. 09-4112-cv,2011 U.S. App. LEXIS 5699 (2d Cir. March 21,2011) 21,23,24
Anthony v. Council, 316 F.3d 412 (3d Cir. 2003) 23, 24,25
111
Ass'n ofData Processing Servo Orgs., Inc. v. Camp, 397 U.S. 150 (1970) 20,22Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (1979) 18,23
Church v. City ofHuntsville, 30 F.3d 1332 (1Ith Cir. 1994) 20
Club Italia Soccer & Spotts Org J Inc. v. Charter Twp. ofShelby,470 F.3d 286 (6th Cir. 2006) 20, 22
Friends afthe Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) 18
Gray v. City ofValley Park, 567 F.3d 976 (8th Cir. 2009) 20, 21
Lujan v. Defenders ofWildlife, 504 U.S. 555 (1992) 11, 16, 19
McCall v. Dretke, 390 F.3d 358 (5th Cir. 2004) 10
Medlmmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) 10
Nat'l Treasury Emps. Union V. United States,101 F.3d 1423 (D.C. Cir. 1996) 10
N.H. Hemp Council v. Marshall, 203 F.3d 1 (1st Cir. 2000) 25,26
Pennell v. City ofSan Jose, 485 U.S. 1 (1988) 23,24,25
Riggs v. City ofAlbuquerque, 916 F.2d 582 (10th Cir. 1990) 20
United States v. Sanders, 731 F. Supp. 2d 1261 (M.D. Fla. 2010) 24
Warth v. Seldin, 422 U.S. 490 (1975) 9,22
Other Authority
U.S. Const., amend. IV 2,4
Minn. Const., art. I, § 10 2, 4
Red Wing Rental Dwelling Licensing Code, § 4.31 passim
Edwin Borchard, Declaratory Judgments (2d ed. 1941) 13
IV
Plaintiffs-tenants and landlords in Red Wing, Minnesota-·brought this
lawsuit to challenge a law passed by Defendant City of Red Wing ("the City" or
"Red Wing") that requires inspection of all rental homes. By its terms, the Rental
Dwelling Licensing Code ("the ordinance" or "the RDLC") applies to the Plaintiff
landlords and tenants, whose homes and properties are among those the City seeks
to inspect. All Plaintiffs have received multiple letters from the City asking
Plaintiffs to schedule inspections. All Plaintiffs have refused to consent to
searches of their homes and properties. As a result, the City has named all
Plaintiffs in three separate warrant applications filed by the City, seeking to search
their homes and properties without individualized probable cause. And all
Plaintiffs have gone to court to defend themselves against those warrant
applications. By any reasonable measure, these Plaintiffs have been injured by the
ordinance and are threatened with further injuries in the future. See Brief of
Appellants ("App. Br.") at 37, 40 (listing injuries from RDLC). These are all
injuries Plaintiffs would be spared in the future if the ordinance were held
unconstitutional.
According to Red Wing, however, it can pass an inspection ordinance that
requires the City to search Plaintiffs' homes and properties, force Plaintiff
landlords to obtain temporary permits as required by that ordinance, pursue
Plaintiffs with an endless series of search warrant applications (authorized by the
same ordinance) and yet Plaintiffs may not challenge the underlying ordinance in a
declaratory judgment action. Why? Because, according to Red Wing, a judge
1
might refuse or amend the City's warrant applications. The involvement of the
judge breaks the chain of causation, according to the City, so it may continue to
apply for these warrants and visit the consequences on Plaintiffs with impunity.
Red Wing's argument strains credulity. Once the government has sued a
person under an ordinance-and, indeed, is required by law to continue suing that
same person-there should be no question that the person has standing to
challenge the ordinance under which they have been sued. Indeed, once the City
passed an ordinance requiring searches of Plaintiffs' homes and properties, they
had standing.
That would be true under general standing principles, but it is even more
true under Minnesota law. The Minnesota Declaratory Judgments Act ("MDJA")
explicitly allows persons to sue when they have been "affected by" an
"ordinance," a test that Plaintiffs easily meet. See Minn. Stat. § 555.02. The
purpose of the MDJA was to allow litigation of controversies at their inception,
and this controversy is long past that point.
Red Wing's responsive brief avoids all of the crucial questions, focusing
not on its own actions, which are all directed towards injuring the Plaintiffs, but on
the potentially intervening role of the court in the warrant application. It also
believes that the only possible injury in a challenge under Article I, section 10 of
the Minnesota Constitution or the Fourth Amendment to the U.S. Constitution is
the actual unconstitutional search, so it refuses to recognize any of the injuries
Plaintiffs have already suffered. And it attempts to distinguish each of Plaintiffs'
2
cases on their facts, pointing out that none involve the exact situation presented
here.
It is true that this case raises important issues of first impression, namely:
(1) Do lawsuits under the MDJA have the same "standing" requirements as other
lawsuits, including the requirement that injury be "imminent"?, and (2) Can a
warrant requirement in a rental inspection law deprive plaintiffs of standing to
challenge the law even though it directly applies to them? Although there are no
cases with identical facts (either for or against Plaintiffs), there are many that
make clear both that Plaintiffs have asserted a viable claim under the MDJA and
that they otherwise have standing to challenge the RDLC.
In Part I, Plaintiffs correct one significant error ofprocedural history in Red
Wing's brief. Part II explains why Red Wing's proposal that Plaintiffs litigate
their constitutional claims against the ordinance as part of defenses to warrant
applications is untenable. Part III then explains that this case is justiciable under
the MDJA and that the "ripening seeds of a controversy" standard necessarily
alters the time at which Plaintiffs can bring suit. Finally, Part IV further
demonstrates that Plaintiffs have shown both actl1al and imminent injury under
federal standing law.
Although this case arises in a particular factual setting, its implications are
sweeping. Red Wing asks this Court to sharply constrict the reach of the MDJA.
The City also asks this Court to insulate rental inspection ordinances from direct
legal challenge, relegating the thousands of people affected by such laws either to
3
defend against endless warrant proceedings or to submit to unconstitutional
searches.
I. PLAINTIFFS SEEK REVERSAL AND REMAND ON FOURCONSTITUTIONAL CLAIMS.
The City makes the surprising assertion that the only claim before this
Court is a single Minnesota constitutional claim. See Brief of Respondents City of
Red Wing ("Resp. Br.") at 14 & n.7, 20. In fact, Plaintiffs have four constitutional
claims, two under Article 1, Section 10 of the Minnesota Constitution and two
under the Fourth Amendment of the U.S>Constitution. App. Br. at 11-12. These
are the same claims that Plaintiffs asserted in their standing appeal, although they
also asked the Court of Appeals to rule on the merits of one of the claims. See
A42-44. Thus, Plaintiffs ask that this Court reverse the lower courts' rulings on
justiciability and remand all four of Plaintiffs' claims for decision on the merits. 1
II. ENDLESS DEFENSES AGAINST THE CITY'S WARRANTAPPLICATIONS ARE NO SUBSTITUTE FOR A DECLARATORYJUDGMENT ACTION.
The City admits that Plaintiffs may challenge the constitutionality of the
RDLC, but, according to the City, that challenge may take place only in a defense
to a warrant application brought by the City. A warrant defense is inadequate for
three reasons. First and foremost, an MDJA action will yield definite resolution
1 With regard to the one state constitutional claim on which Plaintiffs soughtreview on the merits in the Court of Appeals (the claim that administrativewarrants to search homes are completely prohibited by the MinnesotaConstitution), that claim can be remanded to the appellate court, as it has alreadybeen fully briefed there. See App. Br. at 5 n.3, 11 & n.9. Alternatively, this Courtcan choose to remand all issues to the district court for decision on the merits.
4
on the constitutionality of the City's ordinance. In a warrant application, there is a
good chance (borne out in the last three warrant applications) that the court will
deny the application on one of the many legal questions raised in warrant
applications, leaving the broader constitutional issues (like whether the Minnesota
Constitution allows administrative warrants to search homes or how federal
standards apply to a program like Red Wing's) for another day.
That failure to resolve all issues produces the second major difference
between a warrant defense and an MDJA action. Because Plaintiffs are unlikely to
get a final resolution of their claims, Red Wing can continue to subject Plaintiffs
to warrant applications, in the fully-justified hope that they, their lawyers, or the
court will become too exhausted to fight the same litigation year after year.
Third, Plaintiffs cannot effectively litigate their claims against the RDLC in
warrant application proceedings. In this particular case, the court has ruled that
warrant applications must be accompanied by notice and full briefing. A244. But
with no established statutory or judicial procedures, there is no reason other courts
will follow that policy. See Amicus Curiae St. Paul Association of Responsible
Landlords' ("SPARL") Br. at 7. Plaintiffs obtained discovery only because there
was an MDJA action; it remains to be seen if a court will permit discovery in
future warrant applications, but Red Wing will likely oppose it, as it has in the
past. A400-A401.
Thus, a warrant defense deprives Plaintiffs of all the advantages that the
MDJA was meant to confer-resolution of a controversy at its inception, relieving
5
uncertainty about important tights, and final decision about the constitutionality of
ordinances. This Court should therefore allow Plaintiffs to bring an MDJA action,
just as the Legislature intended.
III. PLAINTIFFS' CLAIMS ARE JUSTICIABLE UNDER THE MDJA.
As an initial matter, it is important to note the many points that Red Wing
does not dispute. Red Wing does not dispute that the purpose of the MDJA was to
allow resolution of controversies at their inception; indeed, it does not discuss the
text, history, or purpose of the MDJA at alL Compare App. Br. at 16-20. Nor
does Red Wing dispute that one of the primary purposes the MDJA was to allow
review of the validity of statutes and ordinances, in suits brought by persons
"affected by" the challenged law. Compare Minn. Stat. § 555.02; App. Br. at 20
21. Finally, Red Wing does not dispute the standard for justiciability in MDJA
actions, recently restated in Onvoy, Inc. v. ALLETE, Inc., 736 N.W.2d 611,617-18
(Minn. 2007), nor that Plaintiffs satisfy that justiciability standard. Compare App.
Br. at 21-24,31-34.
Instead, Red Wing makes three arguments. Its primary argument is that
both standing and ripeness are required in all MDJA actions and that while the
MDJA altered ripeness requirements, it did not alter standing requirements.
Second, Red Wing claims that Plaintiffs' reliance on the writings of Professor
Borchard is selective and misplaced. Third, Red Wing argues that using only the
Onvoy justiciability standard will result in an explosion of advisory opinions.
Each of these incorrect arguments is addressed below.
6
A. Requiring "imminent" injury in MDJA cases would defeat theMDJA's purpose of allowing litigation of controversies at theirinception.
Plaintiffs explained in their opening brief that most MDJA cases talk about
justiciability using the recently-restated Onvoy standard but that several cases
(mostly involving taxpayer challenges) refer to "direct and imminent injury" as
part of the justiciability test. Plaintiffs ask this Court to resolve the apparent
conflict by clarifying the meaning of "direct and imminent injury" in the context
of MDJA actions by holding that this language means that individuals bringing
MDJA lawsuits must be the people "affected by" the controversy. See App. Br. at
25-30; Minn. Stat. § 555.02.
The City responds by saying, essentially, that there is no tension between
the cases; an MDJA plaintiff must satisfy the Onvoy standard for justiciability
(which Red Wing interprets as addressing ripeness) and the purportedly separate
requirements for standing. See Resp. Br. at 34-37. While the MDJA altered
ripeness requirements, according to the City, it did not alter typical standing
requirements. Resp. Br. at 32-34.
Red Wing's interpretation is incorrect, for three reasons. First, it makes no
sense in the real world. The standing inquiry of whether injury is "imminent" is
essentially the same inquiry as whether the case is sufficiently "ripe." If
Minnesota courts required "imminent" injury-as Red Wing construes
"imminent"-·in MDJA cases, then the MDJA would be useless in resolving
controversies at their inception. The many cases discussing the "ripening seeds of
7
a controversy" would all be superfluous. Second, the Onvoy standard, which
Plaintiffs meet, covers all the essential elements of justiciability, including
standing. It is not, as Red Wing asserts, limited to "timing." Resp. Br. at 34.
Third, the cases in which this Court applied the Onvoy standard are not, as Red
Wing asserts, ones in which standing is presumed. See Resp. Br. at 34.
1. The MDJA alters the requirement of an "imminent""injury-in-fact."
Red Wing argues that the MDJA alters the "timing element of the
justiciability analysis" but it does not alter the standing requirement. Resp. Br. at
34. That position is plainly contradicted by the text and history of the statute.
Moreover, if the MDJA altered the timing element of justiciability, it would
necessarily alter the timing element of standing in MDJA cases as well.
The text of the MDJA itself shows that it was intended to alter ordinary
standing requirements. Minnesota Statutes § 555.02, plainly grants judicial review
when a person is merely "affected by" an ordinance rather than requiring full-
fledged "injury":
Any person . . . whose rights, status, or other legal relations areaffected by a ... municipal ordinance. .. may have determined anyquestion of construction or validity arising under the . . .ordinance ... and obtain a declaration of rights, status, or other legalrelations thereunder.
The history of the MDJA, discussed at length in Plaintiffs' opening brief, also
shows that its purpose was to allow litigation with less "injury" than ordinary
litigation. See App. Br. at 16-21.
8
But even if Red Wing were correct, and the MDJA only altered the timing
element ofjusticiability, it would necessarily alter the timing element of standing
as well, because timing is a subset ofjusticiability. In the broadest possible terms,
'Justiciability" defines whether there is a controversy that is appropriate for
judicial resolution. "Standing" tells the court that the person bringing the suit is
one Who is appropriate to litigate the justiciable controversy, and "ripeness" tells
the court that it is the correct time to litigate the justiciable controversy. In reality,
of course, these inquiries often overlap, because both standing and ripeness
involve a question of timing of injury. Both ask if matters have reached the point
in time that judicial resolution is appropriate.
Courts recognize that "standing" and "ripeness" often "boil down to the
same question," when the question is the imminence of the injury. See, e.g.,
Medlmmune v. Genentech, Inc., 549 U.S. 118, 128 n.8 (2007);2 Warth v. Seldin,
422 U.S. 490, 499 n.10 (1975) ("The standing question thus bears close affinity to
questions of ripeness-·whether the harm asserted has matured sufficiently to
warrant judicial intervention ...."); see also Brief ofAmici Curiae Legal Scholars
Ryan Scott and Samuel Bray at 9-10. Or, put another way, "[i]f a threatened
injury is sufficiently 'imminent' to establish standing, the constitutional
2Red Wing responds to Medlmmune by saying that even if the inquiry is the same,"they are still separate requirements that must be satisfied before a claim mayproceed." Resp. Br. at 34 n.16. This argument makes no sense. If the factualinquiry is the same, then the MDJA, by allowing litigation of controversies at theirinception, must necessarily have adjusted any standing requirement of imminentInJury.
9
. I
requirements of the ripeness doctrine will necessarily be satisfied." McCall v.
Dretke, 390 F.3d 358, 362 (5th Cir. 2004) (quoting Nat'l Treasury Emps. Union v.
United States, 101 F.3d 1423, 1428 (D.C. Cir. 1996).
The purpose of the MDJA is to allow litigation of controversies at their
inception. App. Br. at 16-21; Brief of Amici Curiae Law Professors at 4-7. It
would defeat the purpose of the MDJA to interpret it to mean that the case would
be sufficiently "ripe" at the inception of the controversy but under the identical
"standing" timing requirement, the plaintiff would still have to wait to bring the
suit until the exact same point in time as a non-declaratory judgment lawsuit.
Instead, the only logical interpretation is that the MDJA represents the Minnesota
Legislature's decision to allow litigation of certain kinds of concrete legal
controversies by parties with tangible and adverse interests, even before there is an
actual or imminent injury to one of the parties. In other words, a case is justiciable
under the MDJA if it satisfies the standard set forth in Onvoy---a standard that
Plaintiffs satisfy (and that Red Wing does not contest that Plaintiffs satisfy).
2. The Onvoy standard covers all the essential elements ofjusticiability, including standing.
Further evidence that Onvoy is not simply a ripeness standard can be found
in the text of the Onvoy standard itself. It is plainly not limited to "timing," as Red
Wing asserts. Resp. Br. at 34. Instead, it encompasses all aspects of a justiciable
controversy, including both standing and ripeness. There must be "a genuine
conflict in tangible interests between parties with adverse interests," as well as
10
"definite and concrete assertions of right that emanate from a legal source."
Onvoy, 736 N.W.2d at 617-18. "Genuine conflict" in "tangible," "adverse
interests" is similar, but not identical, to the federal standing requirements of
concrete injury caused by the complained-ofconduct. Onvoy also requires that the
conflict be "capable of specific resolution by judgment rather than presenting
hypothetical facts that would form an advisory opinion." Id. at 618. Again, this is
similar to the federal standing requirement of redressability, as well as the
requirement that the injury not be "hypothetical." Compare Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). In other words, Onvoy is what "standing"
should look like if the Minnesota Legislature were allowing people to bring
lawsuits when there are ripening seeds of a controversy, and before the injury was
imminent enough to satisfy federal standing requirements.
3. The cases discussing justiciability and ripening seeds donot "presume" standing.
Red Wing's next argument is that the cases on which Plaintiffs rely simply
"presume" standing and then go on to focus on ripeness. Resp. Br. at 34. Red
Wing is incorrect. For example, in Minneapolis Fed'n of Men Teachers, Local
238 v. Bd. of Educ., 238 Minn. 154, 56 N.W.2d 203 (1952), the justiciability
questions involved both injury and ripeness. The teachers wanted to dispute a
proposed contract, but they had not yet refused to sign it and there had been no
consequences from a refusal to sign. 238 Minn. at 158, 56 N.W.2d at 206. This
Court explained that "defendants mistakenly assume that a destruction of the
11
[s]tatus quo between the parties is a prerequisite to the establishment of a
justiciable controversy." Id And that is what Red Wing mistakenly asserts in this
case as well; it believes that until a warrant has actually issued, the status quo has
not been disrupted and Plaintiffs have suffered no injury. Just as in Men Teachers,
the Plaintiffs' claims here are justiciable.
Other cases discussing justiciability III MDJA cases similarly do not
"presume" standing but instead discuss whether the party's interest is sufficient for
the case to be justiciable. See, e.g., Connor v. Twp. Of Chanhassen, 249 Minn.
205, 208- 09, 81 N.W.2d 789, 793 (1957) (finding that plaintiff business could
seek a declaratory judgment of the validity of a municipal ordinance even though
it had not been enforced against the business and the city had assured the business
it would not be enforced); Holiday Acres No. 3 v. Midwest Fed Sav. and Loan
Ass'n, 271 N.W.2d 445, 446-48 (Minn. 1978) (examining whether case was
justiciable in terms of adverse interests of the parties, as well as timing); Arens v.
Rogers, 240 Minn. 386, 391, 61 N.W.2d 508, 513 (1953) (identifying the legal
issue in the case to be "[w]hether a taxpayer has a sufficient legal interest to entitle
him to standing under the Uniform Declaratory Judgments Act" and applying the
MDJA justiciability standard).
B. The text of the Act, Borchard, and caselaw all show that MDJAlawsuits are particularly appropriate to challenge the validity ofordinances.
In their opening brief, Plaintiffs showed that the text of Minn. Stat.
§ 555.02, the writings of Professor Borchard, and this Court's caselaw all indicate
12
that the MDJA was particularly intended to allow challenges to statutes and
ordinances. App. Br. at 20-21. Red Wing does not address the text of the MDJA.
Nor does it discuss the cases where individuals have used the MDJA to challenge
statutes and ordinances. Instead, it tries on the one hand to suggest that SOlle
kinds of laws might be susceptible to MDJA challenges, as Borchard explains, but
not Red Wing's RDLC; on the other hand, it attacks the idea that individuals may
eVer bring pre-enforcement challenges to laws.
As Plaintiffs quote at length in their opemng brief, Borchard's
contemporaneous writings about declaratory judgment acts explained that "[a]s a
rule, the mere enactment of a statute or ordinance imposing restraints on an
individual and implying enforcement by prosecuting officials threatens and
hampers the plaintiffs freedoll, peace of mind or pecuniary interests, and creates
that justiciability of the issue which sustains a proceeding ...." Edwin Borchard,
Declaratory Judgments 966 (2d ed. 1941). Red Wing claims that, unlike any other
law, "the RDLC does not imply enforcement by City officials of the search
proVIsIOns that Plaintiffs find objectionable." Resp. Br. at 42 (emphasis in
original).
Red Wing mIsses the point. There is not the faintest suggestion in
Borchard's writings, or Minn. Stat. § 555.02, or this Court's relevant cases that
MDJA actions are appropriate for challenging some types of municipal
13
ordinances (the ones that imply enforcement) but not others.3 Instead, all these
Sources demonstrate that MDJA actions are particularly appropriate for
determining the validity of statutes and ordinances. App. Br. at 20-21.
Indeed, Red Wing tries to undermine the very idea that the MDJA can be
used for "pre-enforcement" challenges to statutes and ordinances by attacking
Amicus curiae SPARL's point that even under federal standing law, a plaintiff can
have standing to bring a pre-enforcement challenge to a law. See SPARL Br. at 4-
6. Red Wing tries to limit such challenges to only the narrowest of
circumstances-facial challenges where a law is unconstitutional in every possible
application.4 See Resp. Br. at 35-36 n.17. Yet it is plainly the purpose of the
MDJA to allow pre-enforcement challenges to statutes and ordinances, as long as
the law applies to the plaintiff in the case. See, e.g., Barron v. City of
Minneapolis, 212 Minn. 566, 567-70, 4 N.W.2d 622, 623-24 (1942) (pre-
enforcement, as-applied challenge to vending machine ordinance); Connor, 249
Minn. at 206-07, 81 N.W.2d at 792-93 (pre-enforcement, as-applied challenge to
zoning ordinance); Int'l Soc 'y for Krishna Consciousness v. Heffron, 299 N.W.2d
3 Of course, the RDLC does "imply enforcement." Red Wing passed a law thatrequires searches of all rental properties in the city and requires the City to seekwarrants if consent is denied. See RDLC 4.31, subd. 1(3), (3)(a), b) & (i) (A512A514).
4 In any event, one of Plaintiffs' claims actually does fall into this category-theclaim that the Minnesota Constitution completely prohibits administrativewarrants to search homes. A74-88, A274, A286-295. This is the same claim thatthe district court discussed at length and that Plaintiffs asked the Court of Appealsto resolve on the merits.
14
79, 81-83 (Minn. 1980), rev'd on merits, 452 U.S. 640 (1981) (pre-enforcement,
as-applied challenge to state rule restricting distribution of merchandise at state
fairs). Under Red Wing's interpretation, these challenges would no longer be
possible.
C. Enforcing the MDJA as written and intended will not cause anexplosion of lawsuits demanding advisory opinions.
Red Wing also claims that Plaintiffs' interpretation of the law will lead to
courts being swamped with improper MDJA lawsuits brought by people who have
no real injuries and want to tum the courts into debating societies. Resp. Br. at 41,
44-45. The answer to this assertion is simple-adherence to Onvoy's standard,
including its requirements of a "genuine conflict in tangible interests between
parties with adverse interests" and a controversy "capable of specific resolution by
judgment" will serve to weed out any debating society lawsuits. Indeed, clarifying
the standard of justiciability for MDJA lawsuits will decrease wasteful litigation
about justiciability and instead allow courts to focus on the merits of tangible
controversies, just as the authors of the MDJA envisioned. See Minn. Stat.
§§ 555.01, 555.02; see also Brief of Amicus Curiae ACLU of Minnesota at 8-14
(explaining that the MDJA has allowed the ACLU to bring pre-enforcement
lawsuits that resulted in the protection of important constitutional rights and
showing that restricting MDJA justiciability would decrease judicial economy and
prevent the redress of injuries); Brief of Amici Curiae Law Professors at 7-8
(explaining that the MDJA plays a crucial role in resolving important legal
15
disputes in public interest litigation, as well as contract and property disputes prior
to actual injury).
IV. PLAINTIFFS HAVE STANDING TO CHALLENGE THE RDLC.
As Plaintiffs showed in their opening brief, they easily meet the
requirements for standing even if this Court concludes that they must demonstrate
"injury in fact" to maintain their declaratory judgment action. App. Br. at 35-50.
Plaintiffs have challenged the ordinance that authorizes the City to conduct
allegedly unconstitutional searches, as well as the actions the City has taken and
will continue to take to enforce the ordinance. See, e.g., A418 (¶¶74 - 81); A416
(¶67); A432 (¶C). Their injuries are not limited to the imminent threat of
unconstitutional searches, but extend as well to the necessity of adapting and
responding to the City's inspection program and defending against the three
warrant applications the City has brought and the endless series of warrant
applications that will follow until the City has searched their properties. See, e.g.,
App. Br. at 37-40 (listing various harms, including the requirement of obtaining
temporary permits under the RCLC, emotional stress and anxiety, and coping with
alarmed tenants). These injuries are unquestionably sufficient to give the
Plaintiffs standing in this case. See, e.g., Lujan v. Defenders ofWildlife, 504 U.S.
555, 562-63 (1992) (stating that an interest as common as the "desire to use or
16
observe an animal species, even for purely esthetic purposes, is undeniably a
cognizable interest for purposes of standing).5
The City makes three primary arguments in response. First, ignoring pages
of allegations of distinct injuries flowing from the RDLC in the Amended
Complaint, the City claims that the only injury the Plaintiffs alleged was
unconstitutional searches oftheir homes. Second, ignoring the distinction between
standing and the merits, the City claims that Plaintiffs have no constitutional right
against being repeatedly dragged into court to defend against warrant applications,
so the City's enforcement of the RDLC has not injured them. Third, ignoring the
many cases in which the courts have held that an injury can exist even if it
depends on the intervening actions of government officials and even courts, the
City claims that Plaintiffs' injury is too speculative because the judges from whom
the City seeks warrants might not grant them.
All of the City's arguments against standing are wrong, as Plaintiffs
demonstrate below. At bottom, the City's position amounts to the claim that it
may pass a law that authorizes it to conduct unconstitutional searches of Plaintiffs'
properties, but because a judge in a warrant proceeding might prevent the City
from enforcing it, the law is insulated from constitutional challenge. Resp. Br. at
18- 20. The Plaintiffs can raise constitutional defenses to enforcement of a
particular warrant, but neither they nor anyone else may challenge the ordinance
5 As Plaintiffs noted in their opening brief, this Court has relied on the U.S.Supreme Court's test for injury in fact in non-MDJA cases. See App. Br. at 35.
17
that authorizes the warrants itself no matter how long the City pursues them. See
Resp. Br. at 27. This is wrong as a matter of law and as a matter of common
sense. Litigants who are subject to an allegedly unconstitutional policy-·whether
expressed in an ordinance or otherwise-·may sue to stop the government's actions
taken pursuant to that policy and need not wait until their constitutional rights
have actually been violated to do so. See Babbitt v. United Farm Workers Nat'l
Union, 442 U.S. 289, 298 (1979).
Standing exists to insure that only real, as opposed to hypothetical,
controversies reach the courts and that they are litigated by the true parties in
interest. See Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 180
(2000); Larix v. Crompton Corp., 736 N.W.2d 619,624 (Minn. 2007). The RDLC
targets the Plaintiffs and others like them, and their dispute with the City has gone
on now for almost five years. They clearly have standing to mount this challenge.
A. Plaintiffs alleged many injuries that are fairly traceable to theRDLC in addition to imminent unconstitutional searches of theirproperties.
The City claims that the only injury the Plaintiffs alleged was
unconstitutional searches of their homes. See Resp. Br. at 21-22. This is false. In
fact, Plaintiffs alleged a host of cognizable injuries, including the necessity of
defending an endless series ofwarrant applications and various injuries that follow
from the City's enforcement of the RDLe. For example, Plaintiffs alleged that
they "have already been forced to go to court to fend off an illegal proposed
warrant to search their properties and homes" and that they "do not want to be
18
subjected to continued repeated attempts to obtain warrants that do not meet
constitutional standards." A416 (¶67). They pointed out that "[w]ithout a
declaration declaring the City's ordinances to be illegal and an injunction against
their enforcement, Plaintiffs will be subjected to repeated attempts to obtain
warrants." A416 (¶69). And, in fact, Plaintiffs have been subjected to another
warrant application since that time. Se RA42-44; RA243-257. Plaintiffs alleged
that "the proposed warrants violate their rights," A417 (¶72), and sought an
injunction against further enforcement of the RDLC against them, and, eVen more
specifically, against any further warrant applications. A432. Plaintiffs' amended
complaint clearly gave the City "fair notice of the claim[s] asserted." Truesdale v.
Friedman, 270 Minn. 109, 124, 132 N.W.2d 854, 864 (1965). And if they are
successful in this action, the City will be required to stop enforcing the RDLC
against them, to stop seeking warrants, and to stop attempting to search their
properties. As a result, they clearly have standing to challenge the RDLC. See
Lujan, 504 U.S. at 562 (stating that where a statute applies to a particular plaintiff
"there is ordinarily little question that the action or inaction has caused him injury,
and that a judgment preventing or requiring the action will redress it").
B. Having to defend against repeated warrant applications is anactual injury sufficient to confer standing.
To have standing, a plaintiff must simply show that some interest of his has
been or will be adversely affected by some government action and that the relief
he requests will prevent that harm from recurring. See, e.g., Lujan, 504 U.S. at
19
561-62. The affected interest need not be the same as the legal right or interest the
plaintiff ultimately seeks to protect. See, e.g., Club Italia Soccer & Sports Org.,
Inc. v. Charter Twp. ofShelby, 470 F.3d 286, 292 (6th Cir. 2006) (stating that "a
plaintiff need not have a 'legal right,' or a right protected by the law of property,
contract, tort, or statute to suffer injury in fact"). Instead, as the U.S. Supreme
Court has said, "[t]hat interest, at times, may reflect 'aesthetic, conservational, and
recreational as well as economic values.", Ass 'n ofData Processing Servo Orgs.,
Inc. v. Camp, 397 U.S. 150, 154 (1970).
Thus, courts have found that plaintiffs have standing to protect a wide
variety of interests from harm imposed by government action-from increased
competition that results from a change in government policy, see Camp, 397 U.S.
at 153; to changes in employment policies in response to an immigration law, see
Gray V. City of Valley Park, 567 F.3d 976, 986 (8th Cir. 2009); to the desire of
homeless plaintiffs to be free of harassment, possible arrest, and other interference
with their daily activities, see Church V. City of Huntsville, 30 F.3d 1332, 1339
(lith Cir. 1994); to the harm to an individual's reputation that might result from
government surveillance, see Riggs v. City ofAlbuquerque, 916 F.2d 582, 585- 86
(lOth Cir. 1990). In all of these cases, it was sufficient simply for the alleged
injuries to be fairly traceable to the government's conduct to confer standing on
the plaintiffs to challenge that conduct. See also App. Br. at 37-41.
Without question, Plaintiffs' desire not to be repeatedly dragged into court
to defend against an endless stream of warrant applications is an interest whose
20
injury confers standing on them to sue. See, e.g., Gray, 567 F.3d at 985 ("This
court has also entertained constitutional challenges where the statute clearly
applies to the plaintiff, and the plaintiff has stated a desire not to comply with its
mandate") (citations and internal quotation marks omitted); Amnesty Int'l USA v.
Clapper, No. 09-4112-cv, 2011 U.S. App. LEXIS 5699, at *74 (2d Cir. March 21,
2011) (plaintiffs who traveled long distances to have in-person communications in
order to avoid possibility of government monitoring had standing to challenge
statute that authorized monitoring); see also App. Br. at 37-39. The City has a
policy, expressed in the RDLC, of seeking warrants based on less than
individualized probable cause to search the Plaintiffs' homes and it will not stop
seeking such warrants until it is successful. See RDLC 4.31, subd. 1(3), 3(a), 3(b)
& 3(i) (A512-A514); Resp. Br. at 6. Plaintiffs thus have standing to seek a
declaration that the ordinance is unconstitutional and to enjoin the City's actions
taken pursuant to the ordinance-specifically, any warrant applications and
resulting searches that the ordinance authorizes. See, e.g., Amnesty Int'l, 2011
U.S. App. LEXIS 5699, at *55 (stating that "[i]t is significant that the injury that
the plaintiffs fear results from conduct that is authorized by statute"); See also
Brief of Amici Curiae Legal Scholars Ryan Scott and Samuel Bray at 15-19
(arguing that the necessity of defending against a multiplicity of lawsuits
constitutes an injury for standing purposes).
The City's position boils down to the claim that Plaintiffs have no
constitutional right against being repeatedly dragged into court to defend against
21
the City's warrant applications. Resp. Br. at 17. But this is a merits argument, as
the City demonstrates by arguing that Plaintiffs' claim of harm from the warrant
applications is "frivolous" and that the warrant application process actually
protects Plaintiffs' rights. See Resp. Br. at 23-24. Both of these claims beg the
ultimate question at issue in this case, which is whether the RDLC and the City's
actions under it-including the warrant applications-violate Plaintiffs' rights.
But courts do not decide standing by prejudging the merits. See Warth v. Seldin,
422 U.S. 490, 500 (1975) (stating that "standing in no way depends on the merits
of the plaintiffs' contention that particular conduct is illegal"). Courts decide
standing by determining whether a plaintiff has an interest that the "putatively
illegal conduct"-here, the RDLC-- harms. See Camp, 397 U.S. at 153; Club
Italia, 470 F.3d at 292. Plaintiffs would therefore have standing whether the City
had sought any warrants or not, because the ordinance requires it to do so. It is no
answer for the City to claim that Plaintiffs may ultimately lose, for Plaintiffs have
alleged a sufficient injury to test that proposition.
C. The intervening actions of a judge hearing a warrant applicationdo not deprive Plaintiffs of standing.
Separate from the injury of having to defend against repeated warrant
applications, Plaintiffs have also suffered a cognizable injury from the threat that
they will be subjected to unconstitutional searches of their homes and properties.
See App. Br. at 43-49. Imminent threats of injury are sufficient to confer standing,
so long as the challenged law or policy applies to the plaintiff, enforcement is
22
likely, and it is probable that the plaintiff will suffer the injury about which he
complains. See Pennell v. City ofSan Jose, 485 U.S. 1, 8 (1988). In short, "[a]
plaintiff who challenges a statute must demonstrate a realistic danger of sustaining
a direct injury as a result of the statute's operation or enforcement." Id., (quoting
Babbitt, 442 U.S. at 298); see also Amnesty Int'l. 2011 U.S. App. LEXIS 5699, at
*74 (holding that litigants have standing to sue when they take reasonable steps to
prevent the violation of their rights that will follow from an allegedly
uncortstitutionallaw); App. Br. at 45-47.
Courts have found such a realistic danger where, for example, landlords
challenged a rent control ordinance under which a hearing officer could reject rent
increases even before any of the landlords' increases had been rejected, Pennell,
485 U.S. at 8; groups that often communicated with foreign nationals challenged
portions of FISA that allowed the federal government to monitor their
communications even though the government had not monitored their
communications and would have to apply to a FISA court to do so, Amnesty Int'l,
2011 U.S. App. 5699, at *45, *58-59; and indigent parents sought an injunction
against future contempt proceedings that were likely to be brought against them
for failure to pay child care, Anthony v. Council, 316 F.3d 412,416-417 (3d Cir.
2003). In all of these cases, plaintiffs had standing to challenge policies or laws
that made a future injury to the plaintiffs reasonably likely to occur.
Here, it is highly likely that the City will eventually search Plaintiffs'
homes without individualized probable cause. As discussed above, the RDLC
23
authorizes such searches; the City has taken the Plaintiffs to Court three times; and
the City has said that it will not stop seeking warrants until it has searched
Plaintiffs' properties. While the City has not yet succeeded in searching Plaintiffs'
homes, the courts have denied warrants for reasons other than that the City lacked
individualized probable cause. A554-555, A544 n.3, A547-550, A239-243. At
some point, the Plaintiffs' resources will be exhausted and they will be forced to
stop opposing the City's warrant applications. See, supra, at 5.
The City nevertheless claims that Plaintiffs' harm is speculative because it
depends on the intervening acts of a third party-·namely a judge who must grant
the City's warrant application. Resp. Br. at 19-20. This argument is wrong as a
matter of law. As the Second Circuit recently stated, "[t]he presence of an
intervening step does not, as a general rule, by itself preclude standing." Amnesty
Int'!, 2011 U.S. App. LEXIS 5699, at *58. An intervening step will deprive a
plaintiff of standing only if the harm of which he complains is not reasonably
likely to occur. See id.; see also Pennell, 485 U.S. at 8. Many courts have found
standing where the injury of which plaintiffs complained depended on the
intervening actions of government agencies or even courts. See id.; Amnesty Inf'l,
2011 WL 941524 at * 16; Anthony, 316 F.3d at 416-17. See also United States v.
Sanders, 731 F. Supp. 2d 1261, 1266-1267 (M.D. Fla. 2010) (holding that
defendant in criminal case had standing to challenge mandatory sentencing
guidelines even before sentence was imposed).
24
The City cites no cases to support its argument that the intervening actions
of judges in warrant proceedings deprive Plaintiffs of standing. Instead, it simply
tries to distinguish Pennell by arguing that there the plaintiffs' harm depended on
the actions of a city agency, while here, the likelihood of an unconstitutional
search turns on the actions of a court. Resp. Br. at 20. In Pennell, however, the
Supreme Court simply noted that tenants could challenge rent increases before a
"Mediation Hearing Officer." It did not state that the officer was a city employee
or note that fact as significant at all. See 485 U.S. at 5. Indeed, it went on to note
that landlords who were unsatisfied with the hearing officer's decision could seek
binding arbitration, but even that additional contingency did not deprive the
plaintiffs of standing. See id. at 6. In any event, as Plaintiffs have shown here,
Pennell is not a unique or minority decision. See, e.g., Anthony, 316 F3d at 417
(noting that decision is consistent with the standing decisions in other circuits).
The City's argument is particularly galling in that it is the City's own
actions that create the likelihood that Plaintiffs' homes will be searched without
individualized probable cause. Thus, the City argues before this Court that it may
be unsuccessful in its efforts to search Plaintiffs' homes without individualized
probable cause, while simultaneously arguing to the warrant courts that it should
be pennitted to do just that. A340-42; A392. The City's argument is much like an
argument the First Circuit not only rejected, but criticized in New Hampshire
Hemp Council v. Marshall. In that case, a farmer who wanted to grow hemp for
industrial uses sued the DEA over the defmition of "marijuana" in the federal laws
25
that banned its production and distribution. NH Hemp Council v. Marshall, 203
F.3d 1, 2-4 (lst Cir. 2000). The DEA claimed the plaintiff lacked standing,
because state law also banned the industrial use of hemp, so the federal ban could
not have injured him. Id. at 4. In rejecting this argument, the First Circuit pointed
out that the state ban existed only because the DEA had urged it on the state,
whose laws tracked the federal law almost exactly. As the Court remarked,
"Joseph Heller's phrase 'Catch-22' was not intended as a compliment." Id. The
Court went on to find standing because if the federal ban were struck down, the
state ban would likely be repealed. Id. at 4-5.
In short, this case did not materialize from some accident of fate that is
unlikely to recur. Plaintiffs are not some random group of concerned citizens
annoyed by a government policy they would like to see changed. They are here
because the City passed an ordinance that requires it to search their rental
properties and homes without individualized probable cause. Plaintiffs are among
the targets of that law, they have been the subject of three warrant applications,
and the City has made clear that it will never stop attempting to enter their homes.
If Plaintiffs do not have standing to challenge the RDLC, then no one does.
CONCLUSION
For the foregoing reasons, Plaintiffs ask this Court to reverse and remand
for a decision on the merits.
26
DATED: April 14, 2011 Respectfully submitted
LEE U. McGRATH (No. 341502)INSTITUTE FOR JUSTICEMINNESOTA CHAPTER 527 Marquette Avenue, Suite 1600Minneapolis, Minnesota 55402-1330Telephone: (612) 435-3451
DANA BERLINER (admitted pro hac vice)INSTITUTE FOR JUSTICE901 North Glebe Road, Suite 900Arlington, Virginia 22203-1854Telephone: (703) 682-9320
Attorneys for Appellants
27
STATE OF MINNESOTA
IN SUPREME COURT
Robert McCaughtry, et aI.,
Appellants,
v.
City of Red Wing,
Respondent.
CERTIFICATION OF BRIEF LENGTH
CASE No. AIO-332
I. I hereby certify that this brief conforms to the requirements ofMinn. R.Civ. App. 132.01, subds.1 and 3(a), for a briefproduced with a proportional font.
2. The length of this brief is 6,904 words, excluding the cover, table ofcontents, table of authorities, signature block and this certificate.
3.Roman.
DATED:
This briefwas prepared using Microsoft Word 2003 in 13-point Times New\ \
\ \\
April 14, 2011Anthony . anders (No. 387307)Lee U. McGrath (No. 341502)INSTITUTE FOR JUSTICE527 Marquette Avenue, Suite 1600Minneapolis, Minnesota 55402-1330(612) 435-3451
Dana Berliner (admitted pro hac vice)INSTITUTE FOR mSTICE901 North Glebe Road, Suite 900Arlington, Virginia 22203-1854Telephone: (703) 682-9320
Attorneysfor Appellants
