State v. Berkley (2025 ND 134): Clarification of Judicial Discretion in Ordering Registration as an “Offender Against Children”

1. Introduction

In State v. Berkley, 2025 ND 134, the North Dakota Supreme Court revisited the interplay between child-abuse convictions under N.D.C.C. § 14-09-22 and the registration statute for “offenders against children,” N.D.C.C. § 12.1-32-15. Orion Tyler Berkley, father of a two-year-old victim, was convicted of felony child abuse. Although the district court expressly believed Berkley posed no continuing threat, it ruled it had “no authority” to spare him from the statutory registration requirement. Berkley appealed, contending that:

• Registration was not mandatory because § 12.1-32-15(2)(d) allows judicial deviation unless the conviction falls within three narrowly-defined offenses; and
• Even if the court had discretion, it abused that discretion by misreading the statute.

The Supreme Court agreed, reversed the judgment, and remanded for the district court to reconsider registration under the correct legal standard. The decision sets a clear precedent: parent status does not automatically foreclose deviation from registration for crimes against children other than prostitution, kidnapping, or felonious restraint.

2. Summary of the Judgment

• The Court (Justice Tufte, joined by Chief Justice Jensen and Justice McEvers) held that § 12.1-32-15(2)(d) is ambiguous regarding the scope of the “except” clause and parent proviso.
• Legislative history—including 1999 amendments aimed at complying with the federal Jacob Wetterling Act—reveals legislative intent to permit deviation unless:
  1. The offense is prostitution of a minor under § 12.1-29-02, or
  2. The offense is kidnapping (§ 12.1-18-01) or felonious restraint (§ 12.1-18-02) by a non-parent.
• Because Berkley’s crime was child abuse under § 14-09-22, the district court had discretion to deviate if it made the statutory findings (no prior convictions; no mental abnormality or predatory conduct).
• The court misinterpreted the statute by thinking all parents must register; therefore, the case is remanded for a fresh sentencing decision guided by the correct rule.
• Justice Bahr, joined by Justice Crothers, concurred in the result but argued the statute is grammatically unambiguous and inherently grants discretion except in the three enumerated circumstances.

3. Detailed Analysis

3.1 Precedents and Authorities Cited

• State v. Riggin, 2021 ND 87 – reiterates de novo review of statutory interpretation.
• State v. Helland, 2025 ND 63 – emphasizes purposive reading of statutes.
• State v. Enriquez, 2024 ND 164 – sets forth North Dakota’s approach to ambiguity: extrinsic aids and rule of lenity.
• State v. Humann, 2011 ND 237 – first distinguished mandatory vs. permissive registration provisions.
• Petro-Hunt, L.L.C. v. Tank, 2024 ND 46 – illustrates strict grammatical parsing (“and,” “or,” commas) in statutory text.
• Federal Influence: The 1994 Jacob Wetterling Act and its 1999 DOJ Guidelines, which conditioned certain federal funding on specific registration requirements.

3.2 The Court’s Legal Reasoning

1. Identifying Ambiguity. Both the State’s and Berkley’s readings were grammatically plausible. Ambiguity arose over:
   • Whether the “except” clause modified the registration mandate (State’s view) or the discretionary deviation sentence (Berkley’s view).
   • Which offenses the phrase “and the person is not the parent of the victim” attaches to.
2. Contextual & Legislative-History Analysis. The Court drilled into:
   • Parallel structure of § 12.1-32-15(2)(b)–(d) (first sentence mandatory, second sentence discretionary).
   • 1999 amendment history showing the parenthesis was inserted to ensure mandatory lifetime registration for prostitution of a minor and for non-parent kidnappers, consistent with federal funding mandates.
   These materials confirmed that all other crimes against children (like child abuse) remain eligible for deviation.
3. Canons of Construction.
   • Rule of Lenity: Ambiguous criminal statutes are construed in favor of the accused.
   • Whole-Act Rule: Sections must be read in harmony; deviation language elsewhere signaled legislative intent for a similar structure here.
4. Grammatical Parsing. Justice Tufte dissected commas and conjunctions. A critical comma after “§ 12.1-29-02” yields two distinct qualifiers separated by “or,” while the absence of commas in the next phrase links the “parent” proviso only to kidnapping/felonious restraint.
5. Outcome. Registration is not per se mandatory for parental child-abuse offenders. The district court must conduct a deviation analysis under § 12.1-32-15(4) (examine prior record, mental abnormality, predatory conduct) and articulate findings on the record.

3.3 Potential Impact

• Sentencing Flexibility. Trial courts now have confirmed authority to consider the individual facts of child-abuse cases—including intra-family context—before imposing the significant collateral consequence of public registration.
• Legislative Drafting. The decision underscores the importance of clear grammar. Legislators may revisit § 12.1-32-15 to reorganize its dense punctuation and cross-references, reducing future litigation.
• Appellate Litigation. Defendants convicted of “crimes against children” that are not prostitution or non-parent kidnapping/restraint now have a roadmap for challenging categorical registration orders entered without specific findings.
• Custody & Family Law Overlap. By recognizing that registration can become a “wedge tool” in custody disputes (per legislative testimony), the Court’s reading prevents automatic stigmatization of parents absent genuine recidivism risk.
• Federal-State Compliance. The ruling harmonizes state law with minimum federal standards while preserving state discretion where Congress expressly allowed it (parent kidnappings).

4. Complex Concepts Simplified

Ambiguity

When statutory language allows two reasonable interpretations, courts label it “ambiguous” and may consult legislative history.

Rule of Lenity

If ambiguity persists in criminal statutes after all interpretive tools, courts favor the defendant to avoid unexpected punishment.

Dependent vs. Independent Clause

An independent clause can stand alone as a sentence; a dependent clause cannot. Here, the “Except if…” clause is dependent—it modifies the sentence that follows, not the prior sentence.

Wetterling Act

A 1994 federal statute requiring states to establish sex-offender registries as a condition of federal funding. Later guidelines gave states leeway on parental kidnappings, which North Dakota adopted.

Crime Against a Child

A term of art in § 12.1-32-15(1)(a) covering a wide array of offenses—murder, assault, sexual exploitation, child abuse, etc.—but not all require automatic registration under the Berkley rule.

5. Conclusion

State v. Berkley cements an important doctrinal shift: mandatory registration is the exception, not the rule, for most crimes against children when the offender is also a parent. Unless the offense is prostitution or non-parental kidnapping/felonious restraint, trial courts must expressly examine prior convictions and predatory conduct before imposing the severe collateral burden of public registration. The ruling simultaneously advances statutory clarity, respects federal guidelines, and preserves individualized sentencing—hallmarks of balanced criminal jurisprudence. Future practitioners must now ensure sentencing records contain explicit findings whenever registration is ordered or waived in “crime against a child” cases.