IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 144

State 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.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JULY 21, 2022 

STATE OF NORTH DAKOTA
1

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 
2

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 
4

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.
5

[¶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