996 N.W.2d 305
N.D.2023Background
- Kayla Jones filed for a disorderly conduct restraining order on behalf of the parties’ child; the South Central Judicial District (SCJD) issued an ex parte temporary restraining order (TRO).
- All SCJD judges had disqualified themselves from Rath-related matters; the case was reassigned to a Southwest Judicial District judge.
- Mark Rath is subject to a N.D. Sup. Ct. Admin. R. 58 pre‑filing (vexatious litigant) order; he requested leave to file several documents—one request denied, a second request partly granted.
- Rath moved to dismiss Jones’ petition and sought a finding that Jones is a vexatious litigant; the court held a hearing, made findings on the record, and dismissed Jones’ petition.
- Rath appealed, raising as‑applied constitutional challenges to the disorderly conduct statute, contesting the TRO’s issuance, and arguing the court failed to address his vexatious‑litigant-related motion; the Supreme Court dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rath has standing to appeal the dismissal of Jones’ petition | Jones: Rath is not aggrieved because the district court dismissed the petition in his favor | Rath: The statute (N.D.C.C. § 12.1‑32.2‑01) is unconstitutional as applied and his parental rights were infringed | Rath lacks standing; only aggrieved parties may appeal and the dismissal was in Rath’s favor |
| Whether the ex parte TRO is appealable | Jones: TRO was interlocutory and was superseded by the final dismissal | Rath: TRO was invalid because SCJD judges had recused and thus should be challengeable on appeal | TRO is interlocutory and not appealable; final dismissal superseded the TRO |
| Whether Rath could pursue motions while subject to a pre‑filing order | Jones: Rath needed leave under Admin. R. 58 and many filings were unauthorized | Rath: He sought leave and the court erred by not ruling on his vexatious‑litigant motion and by denying relief against Jones | Rath is a vexatious litigant; unauthorized filings cannot be raised on appeal; denial of leave is not appealable |
| Whether the disorderly conduct statute is unconstitutional as applied | Jones: Statute validly used to protect the child; proceedings were proper | Rath: Statute was used to abridge his parental rights and is unconstitutional as applied | Court did not reach the merits because Rath lacks standing; appeal dismissed |
Key Cases Cited
- Bell v. Pro Tune Plus, 835 N.W.2d 858 (2013 ND) (standing requires an aggrieved party to appeal)
- Bernhardt v. Rummel, 319 N.W.2d 159 (N.D. 1982) (only a party or person aggrieved may appeal)
- Interest of A.P., 987 N.W.2d 345 (2023 ND) (defining an aggrieved party as one whose interests are adversely affected)
- Devine v. Fitzpatrick, 258 N.W.2d 247 (N.D. 1977) (an ex parte restraining order is not appealable)
- Froehlich v. Froehlich, 962 N.W.2d 588 (2021 ND) (interlocutory orders may be revised and are generally not appealable)
- Rebel v. Rebel, 837 N.W.2d 351 (2013 ND) (later orders can supersede earlier restraining orders)
- Burleigh Cnty. Soc. Servs. Bd. v. Rath, 985 N.W.2d 725 (2023 ND) (Rath held to be a vexatious litigant subject to pre‑filing restrictions)
- Wheeler v. Sayler, 982 N.W.2d 573 (2022 ND) (denial of leave to file under a pre‑filing order is akin to dismissal without prejudice and not appealable)