by David Kim

In a matter of first impression, the Supreme Court of Montana unanimously reversed a district court order that would have required a defendant to register as a sex offender based on allegations contained in charging documents that were never proved beyond a reasonable doubt or admitted by the defendant. The Court determined that because Montana’s Sexual or Violent Offender Registration Act (“SVORA”) imposes punitive consequences, the Due Process Clause requires that any essential facts triggering registration must be either established by a jury beyond a reasonable doubt or admitted by the defendant. The Court further concluded that a writ of prohibition was the appropriate procedural vehicle because no statutory or administrative mechanism existed to contest the Department of Justice’s registration determination.

Background

In November 2017, Wesley Thomas Cooper was charged by Information in North Dakota with Gross Sexual Imposition, a felony under N.D. Cent. Code § 12.1-20-03(1)(d). The Information alleged that Cooper, then 22, engaged in penile-vaginal contact and/or digital-vaginal contact with a victim whose year of birth was 2013. Cooper initially pleaded not guilty but ultimately entered a plea agreement.

In May 2019, Cooper pleaded guilty to Sexual Assault, a misdemeanor, under N.D. Cent. Code § 12.1-20-07(1)(a). That statute criminalizes knowingly having sexual contact with another person when the actor knows or has reasonable cause to believe the contact is offensive. In his plea agreement, Cooper admitted that he “had inappropriate contact with Jane Doe and had reasonable cause to believe that the contact was offensive to that person,” but he did not admit the victim’s age. The plea agreement expressly stated that Cooper was not required to register as a sex offender because North Dakota exempts that misdemeanor Sexual Assault offense from its registration requirements. The sentencing court imposed a suspended 360-day jail sentence and two years of supervised probation.

Cooper relocated to Montana in 2019, started a family, and opened a business. In October 2024, the Montana Department of Justice (“DOJ”) notified Cooper that he was required to register as a sex offender under Montana’s SVORA. The DOJ concluded that his North Dakota offense was reasonably equivalent to Montana’s Sexual Assault statute and determined that registration was required based on the victim’s age as alleged in the original charging document. Cooper subsequently moved back to North Dakota and filed a petition for a writ of prohibition in Montana district court, seeking relief from the registration requirement. The district court denied Cooper’s petition, ruling that the proper remedy was to register for 10 years and then petition for removal under § 46-23-506, MCA. Cooper timely appealed.

Analysis

The Court first addressed whether a writ of prohibition was the appropriate procedural mechanism. Under Montana law, such a writ serves to halt proceedings by a tribunal or agency acting without or in excess of its jurisdiction and is available only when no plain, speedy, and adequate remedy exists. Kimble Props., Inc. v. State Dep’t of State Lands, 750 P.2d 1095 (Mont. 1988). The Court observed that Cooper faced a stark choice: he could either comply with the registration requirement for a decade before seeking judicial relief or petition for a writ to prevent enforcement altogether.

The Court noted that Montana’s post-2007 SVORA requirements are punitive in nature, as it had previously determined in State v. Hinman, 530 P.3d 1271 (Mont. 2023). Because registration imposes what the Court characterized as onerous, lifelong restraints that significantly restrict liberty and privacy, requiring Cooper to endure 10 years of punitive registration before obtaining judicial review would be neither speedy nor adequate. The Court also noted the absence of any administrative procedure allowing individuals to challenge the DOJ’s registration determinations, a gap that distinguishes this case from prior decisions denying writs of prohibition where administrative review was available.

Due Process Constraints on Registration Determinations

The Court then turned to the central constitutional question, which it identified as a matter of first impression: whether Montana courts may consider charging allegations, beyond the elements of the offense of conviction, when determining if another jurisdiction’s law triggers registration requirements.

Citing federal precedent governing sentencing enhancements, the Court applied the principles articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny. Because SVORA’s post-2007 registration requirements are punitive, the Court reasoned that the constitutional safeguards applicable to criminal sentencing apply with equal force. The Court explained that the Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358 (1970). The Court further observed that, under Descamps v. United States, 570 U.S. 254 (2013), the elements of an offense represent the only facts a court can confidently conclude a jury found beyond a reasonable doubt.

The DOJ urged the Court to adopt what the Ninth Circuit formerly called the “modified categorical approach,” which would permit examination of underlying facts to determine the victim’s age. The Court rejected this argument for two reasons. First, Cooper never admitted to the victim’s age. Unlike the defendant in United States v. Mi Kyung Byun, 539 F.3d 982 (9th Cir. 2008), who acknowledged the victim’s age in her plea agreement, Cooper’s admission addressed only the nature of the contact, not the victim’s characteristics. Second, the Court stated that federal courts have generally found the federal Sex Offender Registration and Notification Act (“SORNA”) to be non-punitive, whereas Montana’s SVORA is punitive, a distinction with constitutional significance.

The Court also observed that the U.S. Supreme Court in Descamps criticized the Ninth Circuit’s expansive application of the modified categorical approach and clarified that this analytical method is permissible only when a statute is “divisible,” i.e., when it sets out elements in the alternative. The Court determined that North Dakota’s Sexual Assault statute contains a single, indivisible set of elements and therefore does not permit application of this approach. The Court explained that when a statute is indivisible, courts cannot look beyond the statutory elements to examine underlying factual allegations.

Statutory Equivalence Analysis

The Court also addressed the textual requirements of SVORA independent of constitutional concerns. Section 46-23-502(9)(b), MCA (2015), requires registration for violations of another jurisdiction’s “law” that are “reasonably equivalent” to enumerated Montana offenses. The Court stated that the statute directs courts to compare laws, not underlying allegations.

Under Montana law, Sexual Assault under § 45-5-502(3), MCA (2015) – the provision triggering registration – requires that the victim be less than 16 years old and the offender be three or more years older than the victim. North Dakota’s Sexual Assault statute contains no age element whatsoever. The Court concluded that because North Dakota’s offense lacks this essential element, it cannot be reasonably equivalent to the Montana offense that triggers registration. Cooper was convicted of an offense that, by its statutory terms, does not encompass the victim-age requirement central to Montana’s registration scheme, the Court concluded.

The Court rejected any suggestion that Cooper bore the burden of proving the victim in his plea agreement was not the same person described in the charging document. Such an approach would impermissibly shift the prosecution’s burden to the defendant, contravening established constitutional principles.

Conclusion

The Court held that because no statutory or administrative procedure exists to contest the DOJ’s registration determination, a writ of prohibition was appropriate. The Court further established that Montana courts may not rely on allegations from charging documents that were not proved beyond a reasonable doubt or admitted by the defendant when determining registration obligations. Finally, the Court concluded that North Dakota’s Sexual Assault offense is not reasonably equivalent to Montana’s registration-triggering Sexual Assault statute because it lacks the required age element.

Accordingly, the Court reversed the district court’s order and remanded with instructions. See: Cooper v. Montana Dep’t of Justice, 582 P.3d 586 (Mont. 2026).  

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