Rath v. Rath, 892 N.W.2d 205

Kayla Rath petitioned for a disorderly conduct restraining order against Mark Rath based on various alleged harassing acts (multiple calls to children, foul language, threats about checking phone records, reports to authorities, etc.).
At an initial hearing Kayla affirmed her petition under oath but offered no other testimony; Mark was limited to submitting questions for the court to ask and could not directly cross-examine her.
This Court reversed and remanded, directing the district court to address Mark’s constitutional defenses and to allow cross-examination (Rath v. Rath, 2016 ND 71).
On remand the district court conducted a hearing with cross-examination, again granted the restraining order on April 11, 2016, and Mark moved to reconsider; this Court’s mandate issued April 19, 2016.
The district court denied Mark’s reconsideration motion on May 31, 2016; Mark appealed, arguing (1) Kayla failed to prove intent, (2) his conduct was constitutionally protected, and (3) the district court lacked jurisdiction because it issued the order before this Court’s mandate.
The Supreme Court affirmed: it summarily rejected the substantive arguments and held the district court had jurisdiction because jurisdiction was returned before the district court denied reconsideration, thereby validating the restraining order.

Issue	Plaintiff's Argument (Kayla)	Defendant's Argument (Mark)	Held
Whether petitioner proved intent for disorderly conduct	Kayla relied on her sworn petition and affidavit; conduct showed intent to annoy/harass	Mark argued Kayla failed to prove requisite intent	Court summarily affirmed that circumstantial evidence can prove intent and petition met burden
Whether Mark’s actions were protected by the First Amendment or right to parent	Kayla argued the conduct (threats/harassment) is not protected speech	Mark asserted constitutional protection for his speech and parenting actions	Court rejected constitutional defense; threats/acts intended to harass are not protected
Whether the district court erred by restricting cross-examination at initial hearing	Kayla relied on prior proceeding; on remand cross-examination occurred	Mark argued he was denied a full hearing and earlier limitation violated due process	On remand the court allowed cross-examination; no abuse of discretion found
Whether district court lacked subject-matter jurisdiction because order issued before mandate	Kayla relied on the district court’s later reconsideration denial which occurred after mandate	Mark argued the April 11 order was void because it preceded the April 19 mandate	Court held jurisdiction attached back before denial of reconsideration; the later denial confirmed the order and validated it

Amerada Hess Corp. v. Furlong Oil and Minerals Co., 348 N.W.2d 913 (N.D. 1984) (intent may be proven by circumstantial evidence)
State v. Holbach, 763 N.W.2d 761 (N.D. 2009) (threatening or harassing activity is not constitutionally protected speech)
State v. Adgerson, 78 P.3d 850 (Mont. 2003) (threats/harassment not protected by First Amendment)
Datz v. Dosch, 846 N.W.2d 724 (N.D. 2014) (appeal divests district court of jurisdiction until mandate)
Matter of S.E., 820 N.W.2d 389 (N.D. 2012) (orders entered after notice of appeal are ordinarily void for lack of jurisdiction)
North Dakota Game & Fish Dept. v. Brashears, 325 N.W.2d 671 (N.D. 1982) (subject-matter jurisdiction may be challenged at any time)