State v. Anderson , 2022 ND 144 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 21, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 144State of North Dakota, Plaintiff and Appellee
v.
Richard Allen Anderson, Defendant and Appellant
No. 20210363
Appeal from the District Court of McLean County, South Central Judicial
District, the Honorable Lindsey R. Nieuwsma, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Justice.
Ladd R. Erickson, State’s Attorney, Washburn, ND, for plaintiff and appellee;
submitted on brief.
Richard A. Anderson, self-represented, Fargo, ND, defendant and appellant.
State v. Anderson
No. 20210363
VandeWalle, Justice.
[¶1] Richard Anderson appealed from an order denying his motion
challenging the constitutionality of N.D.C.C. § 12.1-32-07(4)(r) and seeking
modification of his probation conditions. He argues the probation condition
restricting his internet access violates his constitutional rights. We affirm,
concluding Anderson’s as-applied challenge to the constitutionality of the
statute is not ripe for review.
I
[¶2] In 2019, Anderson pled guilty to corruption of a minor, luring a minor by
computer or other electronic means, and sexual assault. Anderson was
sentenced to five years imprisonment with two years suspended for a period of
five years of supervised probation subject to the terms and conditions specified
in the Appendix A attached to the judgment. Anderson’s probation conditions
included that “It is a violation of your probation for you to subscribe to any
Internet service provider, by modem, LAN, DSL or any other manner. You may
not use another person’s Internet or use Internet through any commercial
venue until and unless approved in writing by your parole/probation officer.”
The judgment stated the five-year period of probation would commence when
Anderson was released from incarceration or at the expiration of parole.
[¶3] In October 2021, Anderson filed a motion entitled, “Motion Challenging
Constitutionality of Law 12.1-32-07(4)(r) NDCC and Form 9, N.D.R. Crim.
Procedure Appendix A items 33 and 39, Regarding Parole and Probation
Conditions, and Sex Offender Parole Conditions Addendum item 3, and for
Modification of Defendant’s Parole and Probation Conditions under Rule
60(a)(1 and 6) N.D.R. Civ. Procedure and Rule 35(a) N.D.R. Crim. Proc., Illegal
Sentence and Rule 52(b) North Dakota Rules of Criminal Procedure.” He
argued certain probation conditions, including the condition restricting his use
of the internet, violate his rights under the First Amendment of the United
States Constitution. He claimed that he was due to be paroled in the near
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future and that he encountered probation and parole officers who stated that
they intended to restrict his access to the internet. The State and the Attorney
General both opposed Anderson’s motion.
[¶4] The district court denied Anderson’s motion. The court explained
N.D.R.Civ.P. 60(a)(1) and (6) do not exist, Anderson did not provide any
argument or facts to support relief under N.D.R.Civ.P. 60(b)(1), and there were
no grounds to modify the judgment under N.D.R.Civ.P. 60(b)(6). The court said
Anderson did not provide any argument or authority to support a claim under
N.D.R.Crim.P. 52(b) and it did not find any obvious error requiring correction.
The court stated Anderson had previously submitted the same arguments in
support of his request for relief under N.D.R.Crim.P. 35(a), but the court
considered the “new” arguments and found the sentence was proper under the
facts of this case. The court denied Anderson’s request for relief to the extent
he argued his sentence is illegal because N.D.C.C. § 12.1-32-07(4)(r) is
unconstitutional. The court explained Anderson’s claims for relief on that basis
were contingent upon his release from custody, he remained incarcerated and
was not currently on probation, and his arguments were based on possible
future action and were not ripe for review.
II
[¶5] On appeal, Anderson argues N.D.C.C. § 12.1-32-07(4)(r) and the
probation condition restricting his use of the internet are unconstitutional.
Section 12.1-32-07(4)(r), N.D.C.C., states when the court imposes a sentence of
probation, it may impose as a condition of probation to “[r]efrain from any
subscription to, access to, or use of the internet.”
[¶6] Whether a statute is unconstitutional is a question of law, which is fully
reviewable on appeal. Teigen v. State, 2008 ND 88, ¶ 7, 749 N.W.2d 505. “All
regularly enacted statutes carry a strong presumption of constitutionality,
which is conclusive unless the party challenging the statute clearly
demonstrates that it contravenes the state or federal constitution.” Id. (quoting
In re P.F., 2008 ND 37, ¶ 7, 744 N.W.2d 724).
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[¶7] Challenges to the constitutionality of a statute may be “facial” challenges
or “as-applied” challenges. See Sorum v. State, 2020 ND 175, ¶ 21, 947 N.W.2d
382. “A claim that a statute on its face violates the constitution is a claim that
the Legislative Assembly exceeded a constitutional limitation in enacting it,
and the practical result of a judgment declaring a statute unconstitutional is
to treat it ‘as if it never were enacted.’” Id. (quoting Hoff v. Berg, 1999 ND 115,
¶ 19, 595 N.W.2d 285). An “as-applied” challenge is a claim that the statute is
unconstitutional in a particular case. See State v. Morris, 331 N.W.2d 48, 58
(N.D. 1983). “Generally, a party may only challenge the constitutionality of a
statute as applied to that party.” State v. Nice, 2019 ND 73, ¶ 7, 924 N.W.2d
102 (quoting State v. Dvorak, 2000 ND 6, ¶ 28, 604 N.W.2d 445).
[¶8] The district court rejected Anderson’s arguments about the
constitutionality of N.D.C.C. § 12.1-32-07(4)(r) and his probation conditions.
The court explained:
[Anderson’s] claims for relief on this basis are contingent
upon his release from custody because they relate to
parole/probation conditions that would apply if and when
[Anderson] is released from custody. As can be inferred from
[Anderson’s] brief, he remains incarcerated at this time, is not
currently on probation or parole, and thus is not currently subject
to the parole/probation conditions he is challenging. [Anderson’s]
arguments are also based on the assumption that a
parole/probation officer will deny his requests to access the
internet . . . at some indeterminate date in the future. Based on
these facts, [Anderson’s] claim is not ripe for review.
[¶9] Anderson was incarcerated when the district court denied his motion.
Because he was still incarcerated, none of the potential harm Anderson alleged
in his motion had actually occurred. Anderson was not on probation and the
alleged unconstitutional probation condition did not yet apply to Anderson.
The harm Anderson alleged he would suffer was mere speculation.
[¶10] On appeal, Anderson argues his constitutional rights have been violated
because his internet use has been severely limited since his release from prison
and the probation condition has prevented him from furthering his education
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or seeking employment. Because Anderson was still incarcerated when the
district court denied his motion, these arguments were not made to the district
court and there is no information in the record to support his current
allegations.
[¶11] “Merely potential impairment of constitutional rights under a statute
does not of itself create a justiciable controversy in which the nature and extent
of those rights may be litigated.” In re C.W., 453 N.W.2d 806, 810 (N.D. 1990)
(quoting Communist Party v. Control Bd., 367 U.S. 1, 71 (1960)). The
adjudication of the constitutionality of a statute when there is only merely a
potential for impairment of constitutional rights would result in an advisory
opinion. C.W., at 810. It is well settled that courts should not give advisory
opinions where no actual controversy needs to be decided. Id. We have
explained:
This court may not render advisory opinions. We may adjudicate
only an actual controversy, which requires an issue that is ripe for
review. An issue is not ripe for review if it depends on future
contingencies which, although they might occur, necessarily may
not, thus making addressing the question premature.
Sprunk v. N.D. Workers Comp. Bureau, 1998 ND 93, ¶ 15, 576 N.W.2d 861(citations and quotations omitted). “As a general rule a court will inquire into
the constitutionality of a statute only to the extent required by the case before
it and will not anticipate a question of constitutional law in advance of the
necessity of deciding it, and will not formulate a rule of constitutional law
broader than is required by the precise facts to which it is to be applied.” State
v. King, 355 N.W.2d 807, 809 (N.D. 1984) (quoting Tooz v. State, 38 N.W.2d 285,
287 (N.D. 1949)).
[¶12] We agree with the district court that Anderson’s argument that the
statute was not constitutional as applied to him was not ripe for review. The
issue raised in his motion depended on future contingencies that were not
certain to occur. We conclude the question was raised prematurely and we will
not consider his arguments at this time.
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[¶13] Anderson has also asserted a facial constitutional challenge to the
statute.
The depth and the magnitude of constitutional arguments require
an individual making such a challenge to either prepare an
adequate and thorough foundation to support the argument, or
forego its presentation. The mere reference to a statute’s
constitutionality, with nothing more, does not meet the standard
of persuasion required to mount an attack on constitutional
grounds.
State v. Peltier, 2016 ND 75, ¶ 5, 878 N.W.2d 68 (quoting State v. Kautzman,
2007 ND 133, ¶ 27, 738 N.W.2d 1). To the extent Anderson argues the statute
is unconstitutional on its face, he failed to thoroughly brief and argue the issue.
See Denault v. State, 2017 ND 167, ¶ 16, 898 N.W.2d 452 (stating a party is
required to do more than submit bare assertions to adequately raise a
constitutional issue, and only issues that are thoroughly briefed and argued
will be decided on appeal). We will not address this issue on appeal.
III
[¶14] We affirm the district court’s order denying Anderson’s motion
challenging the constitutionality of N.D.C.C. § 12.1-32-07(4)(r) and the
conditions of his probation.
[¶15] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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