Fourth Amendment as Tool To Prevent Real Estate Inspections During Discovery
Most civil litigators have little reason to ponder the contours of the Fourth Amendment’s prohibition of unreasonable searches and seizures. And to the extent questions of whether evidence was improperly obtained for lack of a necessary warrant do arise, it is almost always in the context of some pre-litigation investigation. A recent decision from the Illinois Appellate Court for the Second District, however, interjects constitutional analysis into a place many practitioners might not expect it: Illinois Supreme Court Rule 214’s real estate inspection provision. In doing so, the court may have handed an additional tool to defendants in environmental enforcement actions and other cases against the government.
People ex rel. Madigan v. Stateline Recycling, LLC
The decision, People ex rel. Madigan v. Stateline Recycling, LLC, 2018 IL App (2d) 170860, involved the attempt of the Illinois Attorney General’s Office to gain access to and inspect a facility the state had sued as an allegedly unpermitted landfill. When the defendant, Elizabeth Reents, refused to allow the office’s attorneys to visit the site with Illinois Environmental Protection Agency (IEPA) inspectors pursuant to a Rule 214(a) discovery request, they sought an order from the circuit court to compel compliance.
Rule 214(a) provides, in part:
Any party may by written request direct any other party to produce for inspection, copying, reproduction photographing, testing or sampling specified documents, including electronically stored information as defined under Rule 201-(b)(4), objects or tangible things, or to permit access to real estate for the purpose of making surface or subsurface inspections or surveys or photographs, or tests or taking samples, or to disclose information calculated to lead to the discovery of the whereabouts of any of these items, whenever the nature, contents, or condition of such documents, objects, tangible things, or real estate is relevant to the subject matter of the action. [Emphasis added.]
The circuit court granted the motion, agreeing with the government that the language of Rule 214 allows any party to inspect the real estate of its adversary when the property is relevant to the subject matter of the lawsuit, and that it makes no exception for government litigants. The court also noted that the subject facility, a landfill, was engaged in a “highly regulated activity,” and that the government’s ability to inspect it pursuant to Rule 214 was not subject to a Fourth Amendment analysis. The defendant was held in friendly contempt while she appealed the ruling.
The appellate court first took issue with the circuit court’s finding that the case should not be treated as a criminal one for purposes of the constitutional analysis. It reasoned instead that “the action here amounts to a quasi-criminal proceeding, within the reason of criminal proceedings for all the purposes of the Fourth Amendment [to] the Constitution.” [Citation omitted.] 2018 IL App (2d) 170860 at ¶43. It also noted that, while Reents’ business was a highly regulated one, its use for commercial rather than residential purposes did not bring the search request outside constitutional scrutiny either. Further, it found that the government’s request in a way implicated the heart of the Reents’ Fourth Amendment rights because it was “an actual search of private property, not merely a constructive search for information.” 2018 IL App (2d) 170860 at ¶45.
The court also rejected the argument that the protections for Reents built into the civil discovery rules — such as the requirement that the inspection be done at a reasonable time and judicial oversight of the process — satisfy what the Fourth Amendment requires. It found that all of the Illinois cases cited by the government in defense of this position were distinguishable and that the decisions from sister jurisdictions were not persuasive. Because the government had provided no evidentiary basis, such as an affidavit, to support its Rule 214 request, and the circuit court had conducted no Fourth Amendment analysis, the appellate court reversed the order and remanded the dispute.
Implications for Illinois Practitioners
Most importantly as far as practitioners are concerned, the appellate court held that, at least under these facts, the government’s demand to visit Reents’ property is subject to the three-part Burger test applicable to warrantless administrative inspections of closely regulated businesses. Under that test, established by the U.S. Supreme Court in New York v. Burger, 482 U.S. 691, 96 L.Ed.2d 601, 107 S.Ct. 2636 (1987), such a search is constitutional only if “(1) there is a substantial government interest underlying the regulatory scheme pursuant to which the inspection is made, (2) the inspection is necessary to further the regulatory scheme, and (3) the regulatory scheme sets forth sufficient ‘certainty and regularity’ to provide the business owner with a constitutionally adequate substitute for a warrant.” Stateline Recycling, supra, 2018 IL App (2d) 170860 at ¶64.
The Burger test, though, is an imperfect fit, and perhaps an unworkable framework, for analyzing the reasonableness of a Rule 214 inspection request. The test assumes a generally applicable regulatory program, not a one-off demand to enter property in order to prove the defendant’s noncompliance. Accordingly, it is unclear how a trial court should apply the Burger factors within ongoing litigation. Is the regulatory scheme pursuant to which the Attorney General was acting the IEPA’s broader landfill inspection program? Or is the Attorney General’s litigation enforcement program itself a regulatory scheme? Regardless, how can there be “certainty and regularity” in inspections conducted specifically to further the government’s interest in a specific lawsuit? Stateline Recycling can be read to create an almost impossible standard.
On the other hand, the appellate court suggested that the Burger test might have been satisfied had the Attorney General’s request only been modestly more tailored to the kind of inspection it actually needed to gather evidence for its case. It criticized the Attorney General’s 214 request for lacking “any limits on the time, place, and scope of the inspection such that it could provide an adequate substitute for a warrant, as contemplated by Burger.” 2018 IL App (2d) 170860 at ¶69. It then went on to conclude, “Fourth amendment principles mandate that the discovery order be limited to properly inform Reents of the government’s exercise of its power to search her property.” Id. Although if lack of specificity was the request’s primary flaw, why was the circuit court’s finding that the request was proper under Rule 214 — which includes the requirement that a request “specify a reasonable time” — not a constitutionally sufficient safeguard?
These are questions that must wait for future litigation. In the meantime, there is plenty to latch onto in Stateline Recycling for use as a shield in government enforcement actions. It may be used to require the government to seek a warrant to conduct discovery such as collecting soil samples or photographing allegedly noncompliant site conditions.
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