recommended a gazebo due to B . C .’ s extreme fear of flying insects and the misting system due to B . C .’ s issues with regulating body temperature and overheating due to autism .
The department approved the outdoor misting system but denied the request for a gazebo reasoning that voucher funds may not be used for items or services that are a parental responsibility . The department considered a gazebo to be akin to a fence which is a permanent improvement to the property , which could be enjoyed by more than just B . C . and therefore was a parental responsibility .
B . C . appealed the denial to an ALJ . The ALJ determined the gazebo should be covered because the gazebo compensates for B . C .’ s particular defects created by his autism spectrum disorder by providing for his safety and treatment . The department rejected the ALJ ’ s determination that the denial of the gazebo was improper and instead found it was proper . A district court then affirmed the department ’ s decision .
The Supreme Court reversed the judgment of the district court affirming the department ’ s denial of the autism voucher funding for the gazebo . The Supreme Court refused to provide any deference to the department ’ s interpretation of the term “ parental responsibility ” because the regulation was not complex or technical in nature . The Supreme Court stated the gazebo in question was not akin to a fence , but instead was a 10 ’ x10 ’ square canopy valued at less than $ 450.00 and it was a temporary shade structure akin to what one often sees at high-school sporting events and outdoor
exhibition booths . In short , the Supreme Court held the department unreasonably interpreted the applicable regulations and that its conclusions of law were not supported by the findings of fact .
State v . Anderson , 2022 ND 144 . Filed 7 / 21 / 22 .
Anderson was sentenced to a term of imprisonment and probation . His probation prohibited him from using the internet without approval from his probation officer . N . D . C . C . § 12.1-32-07 ( 4 )( r ) permits the Court to impose a probationary condition which prohibits the probationer from accessing or using the internet . Anderson , acting pro se , challenged the probationary condition and N . D . C . C . § 12.1-32-07 ( 4 )( r ), arguing it violated his First Amendment rights . The Supreme Court found Anderson was incarcerated at the time he challenged this probationary condition . As a result , he was not yet on probation and the probationary condition did not yet apply to him . The harm Anderson alleged he would suffer was mere speculation . The Court ruled merely potential impairment of constitutional rights does not create a justiciable controversy and would result in an advisory opinion . Finding the issue was not yet ripe for review , the Court refused to consider Anderson ’ s constitutional challenge .
Author ’ s Note : As of the time of submission of this article , Anderson has been released from the DOCR , but has not brought a new challenge to the probation condition .
20 THE GAVEL