SUPREME COURT ROUNDUP

Justices Agree To Review Case

WASHINGTON -- The Supreme Court agreed today to decide whether laws that
inform the public of the whereabouts of convicted sex offenders after the
offenders' release from prison impose extra punishment in violation of the
Constitution's ban on ex post facto legislation.

The case, an appeal by Alaska, was the third case that the court has
accepted in recent months on approaches to dealing with sex offenders.
Because all 50 states have enacted a version of Megan's Law, as the
original New Jersey statute was known, the Alaska case is quite likely to
attract wide attention.

But not all the state laws are the same, and not all would be equally
vulnerable, even if the justices agree with the federal appeals court in
San Francisco that Alaska's Sex Offender Registration Act was
unconstitutionally punitive. That law applies automatically to all sex
offenders, requiring periodic registration, four times a year for life in
some cases, and providing for placing the list on the Internet.

In New Jersey, by contrast, nearly half the offenders, those classified as
posing the least risk, are not subject to public disclosure of their
whereabouts, and just about 5 percent of offenders are subject to
widespread disclosure. The New Jersey law has been upheld on appeal.

But the federal appeals court in New York recently held that Connecticut's
sex-offender registration and notification law violated the constitutional
guarantee of due process, a separate issue that is not before the Supreme
Court in the Alaska case.

The Alaska law, passed in 1994, was challenged by two men, identified as
John Doe I and John Doe II. Each had been convicted of sexually abusing a
daughter. Each served eight years in prison before being released in 1990.
The men argued that the registration-and-notice statute could not
constitutionally be applied to those whose crimes were committed before its
enactment.

The Federal District Court in Alaska ruled for the state. But the United
States Court of Appeals for the Ninth Circuit, in August, found the law
unconstitutional as applied to offenders convicted before the statute's
effective date. The Ninth Circuit cited aspects of the law that taken
together gave it a punitive effect.

Twenty-four states, led by California, filed a brief supporting Alaska's
Supreme Court appeal, Otte v. John Doe I, No. 01-729. California said its
version of Megan's Law was expressly applied to previous offenders when the
Legislature passed it in 1996. The California Supreme Court has upheld the
retroactive application, which currently covers 60,000 offenders, the state
said.

Since the federal Constitution's ex post facto ban applies only to
additional punishments, a sex offender registration law does not run afoul
of the ban unless it is punitive. A number of other courts have deemed
other state statutes as "remedial."

"The Ninth Circuit simply was wrong in concluding that Alaska's statute was
dramatically different from, and dramatically more 'punitive' than" state
laws that other courts have upheld, Alaska's appeal said.

There were also these developments on a busy day after the justices' return
from a midwinter recess.

Drug Evictions

In an argument, the justices appeared highly receptive to the government's
defense of a 1988 law that requires public housing leases to provide for
the eviction of tenants whose family members or guests engage in "any
drug-related criminal activity on or off the premises."

The Ninth Circuit, ruling in a case brought by four tenants who were facing
eviction because of drug offenses by family members or, in one instance, an
in-home caretaker, ruled that tenants could not be evicted for offenses
committed by household members outside the apartment without proof that the
tenant knew of the activity.

The Ninth Circuit's opinion affirmed a preliminary injunction granted by
Judge Charles Breyer of Federal District Court in San Francisco. Because he
is Justice Stephen G. Breyer's brother, Justice Breyer recused himself from
the case.

James A. Feldman, an assistant solicitor general, told the justices that
the issue was a simple one of contract law, that the government owned the
property and that the tenants had signed leases agreeing to the condition
that they would face eviction if drugs were used.

"The underlying principle is really one of household-wide responsibility,"
Mr. Feldman said, adding that it would be very difficult for housing
authorities to have to prove a tenant's state of mind before bringing
eviction proceedings.

Paul A. Renne, arguing for the tenants, said the imposition of "collective
guilt" raised constitutional problems. The law makes the public housing
authority "judge and jury as to whether or not innocent tenants can be
summarily evicted from their homes," Mr. Renne said.

But he won little support, even from more liberal justices. "Your argument
doesn't seem to have any intuitive plausibility to it," Justice David H.
Souter said. The case is Department of Housing and Urban Development v.
Rucker, No. 00-1770.

States' Rights

Without comment, the court turned down an opportunity to revisit a 1985
decision that made states liable for paying their employees according to
the federal minimal wage- and-hour standards. Iowa, which was found by its
state supreme court to owe millions of dollars in back pay to state
workers, argued that the Supreme Court's recent federalism decisions had
undermined the 1985 decision, Garcia v. San Antonio Metropolitan Transit
Authority.

Ohio and seven other states filed a brief on Iowa's behalf, urging the
justices to overturn the decision. The case, Iowa v. Anthony, No. 01-790,
had attracted considerable attention from those awaiting signals on the
next move on federalism.