Legalectric

Trouble… right here in river city… Not long ago the City was nailed asking for permission to do background checks on candidates for elected office. Now they’ve passed an ordinance that would require landlords to hand the City keys to their rental property. Have they no concept of boundaries, of intrusive behavior, and DUH, constitutional rights? How is it they have no clue of legal and appropriate behavior?

The Red Wing Republican Beagle gets the importance:

Editorial: Inspect the case

R-E Editorial Board, The Republican Eagle
Published Saturday, November 18, 2006

Red Wing took a public bruising this fall when the Minnesota Attorney General’s Office chastised City Hall for candidate background checks. That story generated statewide attention â?? the kind no community needs but, in this instance, that the city brought on itself.

Red Wing suffered another black eye Wednesday, this time involving the Fourth Amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Institute of Justice filed a lawsuit Wednesday in hopes of blocking the city’s rental code inspection law. The city appears poised to defend its position.

We won’t debate the merits of the rental code or the lawsuit today, but we don’t hesitate to warn city officials to take caution. City Council must balance carefully the costly litigation that could mean dipping deeper yet into taxpayers’ pockets.

Here’s the background on this:

From RWRE- Nick Dranias, attorney and the RW landlords

Red Wing sued over rental code
Samantha Marcus – The Republican Eagle
Published Thursday, November 16, 2006

A Minnesota-based public interest law firm that has been gearing up for a fight against the city of Red Wingâ??s rental inspection program filed a civil rights complaint Wednesday with the Goodhue County District Court.

The Institute for Justice is representing a group of Red Wing landlords and tenants seeking an injunction to prevent the city from enforcing the Rental Dwelling Licensing Code.

They allege that the program violates the Fourth Amendment right to privacy.
Nick Dranias (center) of the Institute for Justice is joined by a group of Red Wing landlords Wednesday at a press conference announcing a lawsuit they had filed against the city of Red Wing. The group says the city’s rental inspection code violates tenants’ Fourth Amendment right to privacy and freedom from unreasonable searches.

Itâ??s not the first time a municipal rental inspection code has been challenged, but Institute for Justice attorney Nick Dranias said elements of coercion make Red Wingâ??s program dangerous. Dranias referred to the program as an â??ad hoc concoction.â?

The city adopted the Rental Dwelling Licensing Code in February 2005, after deeming rental housing a concern.

The suit also names Jay Owens, the city engineer designated as enforcement officer, and Gene Durand, assistant building inspector, as defendants in their official capacities.

News of the lawsuit began circulating Wednesday. City officials said they hadnâ??t received a copy of the complaint yet and would need time to review it before commenting. Mayor Donna Dummer said an e-mail from the city administrator was the only notice of the lawsuit she had received as of Wednesday afternoon. Councilman Stephen Castner said he had heard the city was named in a lawsuit, but that no one had seen it yet.

Once the city is served the complaint, it has 30 days to answer by responding to points made in the complaint.

The city has held in the past that it is inspecting rental units for the public interest in â??ensuring that there are no possible conditions that could adversely affect the health and safety of the residents and the public.â?

How we got here

On Feb. 28, 2006, the city sent letters to East End rental property owners to set up inspections pursuant to the code. Landlords were to assume responsibility for obtaining their tenantsâ?? consent.

Institute for Justice attorneys said they got involved in April or May, when both landlords and tenants came to them with concerns about an intrusion on their right to privacy.

After failed attempts to reach the landlords by phone, City Attorney Jay Squires issued another piece of correspondence on July 27, alerting the rental owners that the city would seek legal recourse â?? namely, a warrant â?? to conduct inspections.

Between July 31 and Aug. 19, landlords Ryan Peterson, Doug Sjostrom, Kim Sjostrom, Brad Sonnentag, Robert McCaughtry and Robert McCaughtry for Michele McCaughtry each wrote to the city, challenging the city to produce warrants.

Sonnentag said he sent questionnaires to his tenants. Five of the six who responded said they were uncomfortable with the searches. And if they werenâ??t comfortable with it, neither was he, Sonnentag said.

He and the other landlords also said they were uncomfortable with the city leveraging their licenses against a property inspection.

The Rental Dwelling Licensing Code dictates that no one can operate a rental unit without a city-issued license or temporary permit. Both hang on a city inspection.

So while the city is applying for a warrant, landlords said they realize theyâ??re in a lose-lose situation.

If the court grants the cityâ??s request, the inspections will be conducted against the landlordsâ?? and tenantsâ?? wishes. If the court denies the warrant, the city canâ??t perform inspections but the landlordsâ?? licenses are jeopardized.

Dranias called it a â??Sophieâ??s choiceâ? at a press conference Wednesday announcing the lawsuit.

The complaint alleges that the element of coercion makes the warrant irrelevant.

â??The city has conditioned a landlordâ??s right to earn a living on waiving a constitutional right,â? Dranias said.

But itâ??s not just a landlordâ??s source of income or the roof over someoneâ??s head at stake, he added. Noncompliance is considered a misdemeanor, carrying a fine or imprisonment for up to 90 days.

â??The intimidation practices were very subtle,â? said Lee McGrath, executive of the Minnesota chapter of the Institute for Justice. â??But itâ??s enough to scare ordinary citizens.â?

Rentersâ?? rights

The case is ultimately about the Fourth Amendment â?? the paramount sanctity of oneâ??s right to privacy.

Dranias said the cityâ??s warrant request amounts to an unrestricted right to enter a renterâ??s home any time and as many times as inspectors choose.

Kim Sjostrom said she thought it was ridiculous that her tenants â?? ordinary citizens â?? have less right to privacy in their homes than suspected criminals do under Red Wingâ??s rental code.

For now the program focuses on rental units, but the Institute for Justice fears this is only phase one: The City Council expressed interest in pursuing citywide home inspections, according to an internal memorandum between the city administrator and city attorney.

â??Theyâ??re starting with the least able to organize and then extending it to the rest of us,â? McGrath said.

Landlords are quick to point out that renters werenâ??t without remedy before the code was adopted. Tenants could call the city and request an inspection at any time.

Sonnentag and Peterson said that system was more than adequate.

The City Council, which debated the code for months before approving it 20 months ago, disagreed.

Morris case

In 2003, the Minnesota Civil Liberties Union filed a similar grievance against the city of Morris, Minn. While the court upheld that cityâ??s code, Dranias said there are critical differences in Red Wingâ??s code.

The complaint against Red Wing accuses the city of using licenses to coerce warrantless inspections. And if landlords donâ??t comply, the city seeks out unconstitutional warrants, Dranias said.

Plus, Red Wingâ??s code doesnâ??t limit the scope of the inspections. An affidavit signed by the city engineers states that inspectors are to â??determine whether the structure is in compliance with the Housing Maintenance Code, other city ordinances, and the laws of the state.â?

The city of Morris explicitly limited its search to building codes, Dranias said. Red Wing has the broad authority to inspect for all forms of disorderly conduct, which is defined under the rental dwelling licensing code to include gambling, weapons offenses and prostitution â??searches that require warrants based on traditional probable cause.

If that is the cityâ??s intent, officials should be applying for a traditional warrant, Dranias said. That places the burden on the city to prove suspicion of a violation exists.

Dranias and McGrath said it seems the city could use the inspections as a facade for addressing criminal activity.

Attached to the Feb. 28 letter City Clerk Kathy Johnson sent to East End landlords was a letter regarding â??8-hour Crime Free Multi-Housing Programâ? training.â?

The program invited landlords to have the Red Wing Police Department conduct criminal history checks on prospective tenants in addition to attending sessions geared toward instruction on â??personal safety, applicant screening, landlord and tenant laws, drug and gang identification.â?

Attorneys for the landlords called the cityâ??s motives suspect.

â??Weâ??re very troubled by what we see in Red Wing,â? McGrath said.

Tom Micheletti, Excelsior – Photo stolen from Stephanie Hemphill, MPR

This past week, the phone was ringing off the hook, inbox ablaze, media of various sorts proving that Mercury has gone direct and communication’s a happenin’ thang, and all about energy, from Mesaba coal gasification, to gas v. coal v. IGCC, to nuclear to CapX2020 (FINALLY, somebody’s paying attention to CapX2020, you’d think that with 200,000 landowners affected they’d be all over it, but nooooo).

Bob Kelleher got the biggest chortle of the week when he said unabashedly, “Hey, reporters don’t know EVERYTHING!” Oh, Bob, don’t burst my bubble like that… I hold you guys in high esteem, if YOU don’t know, who will tell the world? Reporters are omniscient! Keep nosing around and don’t prove me wrong! With the Mesaba Project particularly, there’s a lot going on, and a lot of rocks to be overturned.

Anyway, here’s the poop about the hearings that aren’t happening this week, cancelled, nada… a good thing for me because my father’s in renal failure and is about to check out, I’m not concentrating real well. But it means a lot that I’m working against the Mesaba Project with Ross Hammond, P.E., the engineer son of my father’s boss — that’s just such a cool circle to complete. This Mesaba Project will go down in flames in tribute to our fathers, engineers slaving away above the Gay 90’s on 4th & Washington for decades building coal plants, nuclear… those engineers who gave us some skills and taught us a few things…

For all the Prefiled Testimony in this case, either go over to the R side for “Mesaba Testimony” or with a click, go to www.mncoalgasplant.com/ppa.html and scroll down. There’s a lot there, and it’s GOOD STUFF!

Here’s Bob’s report (listen online HERE):

The arguments over Excelsior Energy

by Bob Kelleher, Minnesota Public Radio
November 19, 2006

In the coming weeks there’s going to be a lot of debate over Excelsior Energy’s proposed coal gasification power plant for the Iron Range. Hearings were due to start today, but the parties involved have agreed to submit written testimony instead.

At stake is a $2 billion; 600 megawatt power plant, that would provide 1,000 construction jobs; and more than 100 permanent jobs on the Iron Range.

However, some people, including some within the power industry question whether it’s a wise project.

Duluth, Minn. â?? The proceedings are intended to make a very simple decision over a very complicated project.

An administrative judge will advise the Public Utilities Commission early next year, whether Minneapolis-based Xcel Energy will have to purchase the electric output of Excelsior Energy’s proposed Mesaba Energy Project.

Without a dedicated customer, the Iron Range coal gasification power plant won’t get built.

To make that decision, state statute says the judge will consider two things: whether the project can be the low-cost electricity producer; and whether the project is in the public interest.

And the opponents are lining up to argue the Mesaba project does neither.

An expert for the Minnesota Department of Commerce says the project is not likely to produce low cost electricity. And that worries the state’s business community. Bill Blazar is with the Minnesota Chamber of Commerce.

“If the analysis shows that the electric rates for Xcel customers would be higher than they otherwise would be, then we need to figure out the impact on jobs and the economy of that, and if it turns out that it’s negative, then I think we’ve got to scratch our heads and question ourselves whether the project is in the public interest,” Blazar says.

Blazar wonders how well the public is served if Xcel’s customers in places like St. Cloud, Winona, and the Twin Cities have to pick up the bill for economic development on the Iron Range.

He also worries about the gasification plant’s unproven technology, at least on this scale.

The project is intended to burn a synthetic gas from coal, but it can burn natural gas instead, say, if the coal gasification unit isn’t working.

“And that is troubling to business customers, because natural gas is expensive,” says Blazar. “The electricity that it produces is expensive. And a lot of manufacturers use natural gas for other processes. And to the extent that we use it to generate electricity, it tends to drive up the cost of the commodity.”

Others argue that the power plant has no place in Northeast Minnesota.

Margaret Hodnik, with Duluth-based Minnesota Power, says the Iron Range already faces stringent federal pollution rules because of Voyaguers National Park and the Boundary Waters Canoe Area Wilderness. There are several major industries proposed for the Iron Range. Each would add pollution to the same air shed.

“We think that it’s going to be very challenging to permit all these projects and fit them in,” Hodnik says. “Probably not all of them will happen, but if the Mesaba project is built it will have emissions, and it will take up some of this air-shed, as it’s called. And so that air-shed will not be available for other projects that may come in.”

Hodnik says the Iron Range is better suited for projects based on the region’s minerals or timber. And she argues that new pollution equipment can make even older coal fired plants almost as clean as integrated coal gasification plants like the Mesaba Energy Project.

“IGCC plants, the type of technology they proposed, as compared to a modern super-critical coal plant, which is a more traditional technology, is not significantly better,” Hodnik says. “It’s a few percentage points better on the emissions in question, but it’s not significantly better.”

But that’s just wrong, according to Tom Micheletti, Co-President of the company behind the Mesaba Energy Project.

“Isn’t that funny, that the single largest polluter in Northeastern Minnesota, by far, would take the position that a new, clean technology, whose emissions are a fraction of their plants, would say that we’re the environmental problem?” Micheletti says. “It borders on the ludicrous.”

According to Micheletti, pollution reductions underway at Minnesota Power’s coal-fired plants will provide more than enough air-shed to permit not only his power plant, but other proposed Iron Range Industries as well. He says gasification is proven much cleaner by all measures than conventional coal. And he says his experts have demonstrated that the Mesaba Energy Project will produce electricity cheaper than any other available source.

=================

“And it’s unchallenged in the record, the costs that are association with a pulverized coal plant, and the costs that are associated with our plant,” Micheletti says. “And so I think what you’re seeing here is the utilities doing essentially all that they can to prevent competition.”

“If the analysis shows that the electric rates for Xcel customers would be higher than they otherwise would be, then we need to figure out the impact on jobs and the economy of that, and if it turns out that it’s negative, then I think we’ve got to s
– Bill Blazar, Minnesota Chamber of Commerce

As the least cost provider, Micheletti says, it’s an easy argument the project will be in the public interest.

“Given that fact, almost by definition, the electricity from our plant will be of benefit throughout the entire state by all of those who use it,” Micheletti says. “Because the alternatives that they face are higher costs, probably, and probably dirtier power plants.”

But there’s more to go into the cost equation, according to Carol Overland. She’s an attorney representing a citizen’s group opposed to the project. Overland argues the real costs should include direct costs like government investment and indirect costs such as from pollution.

“You’ve got local governments taking on putting in a railroad; putting in transmission lines; putting in gas service,” says Overland. “You’ve got the water – process water – 6,500 gallons a minute coming in. How much going out? There will have to be a treatment plant to deal with the really serious things like arsenic, selenium, cyanide, that are in the water. What will that cost?”

Overland agreed only reluctantly to the cancellation of this week’s public expert testimony.

“For those of us without resources, and without the ability to hire expert witnesses for tens of thousands of dollars, we get our exhibits and our evidence in through cross examination,” Overland says. “So, … to give that up, that’s significant. And I am queasy about it.”

There will still be opportunity for public input in open forums. The Public Utilities Commission has scheduled hearings in St Paul, Hoyt Lakes, and Taconite in late December. The Administrative Judge’s recommendation is expected in February. But his role is only advisory. The final decision rests with the Public Utilities Commission.

Speaking of coal gasification and Excelsior’s Mesaba project, the phone just rang and a little birdie told me that in the Grand Rapids Herald Review today, there’s Tom Micheletti saying:

We’ve been straightforward. If we were a bunch of liars, we’d have never got this project to where it is today.Â

Uh-huh… And of course it’s not on-line yet… will post as soon as it’s available!

In the meantime, I’ll go back to all of the prefiled testimony in this case… yawn…