from the District Court of Burleigh County, South Central
Judicial District, the Honorable Gail Hagerty, Judge.
Rath, petitioner; no appearance.
Rath, self-represented, Bismarck, ND, respondent and
appellant; on brief.
W. VandeWalle, C.J., Carol Ronning Kapsner, Daniel J.
Crothers, Lisa Fair McEvers, Joel D. Medd, S.J. Opinion of
the Court by VandeWalle, Chief Justice. Honorable Joel D.
Medd, S.J., sitting in place of Sandstrom, J., disqualified.
W. VandeWalle, Chief Justice.
[¶1] Mark Rath appealed from a disorderly
conduct restraining order. We reverse and remand for
proceedings consistent with this opinion.
[¶2] This appeal represents the latest
dispute between Mark Rath and Kayla Rath. See, e.g., Rath
v. Rath, 2015 ND 22, 861 N.W.2d 172; Rath v.
Rath, 2014 ND 171, 852 N.W.2d 377; Rath v.
Rath, 2013 ND 243, 840 N.W.2d 656. On April 17, 2015,
Kayla Rath petitioned for a disorderly
conduct restraining order against Mark Rath, citing a litany
of conduct purportedly rising to the level of disorderly
conduct. These allegations included: Mark Rath called his
children nearly twenty times in one night, Mark Rath used
foul language towards Kayla Rath, Mark Rath said he had a
business associate seek Kayla Rath's phone records, Mark
Rath reported Kayla Rath to authorities out of concern she
may be illegally receiving government benefits, and other
[¶3] The district court held a hearing on
the petition. At the outset of the hearing, the court asked
Kayla Rath, who was under oath and represented by counsel, if
the information and allegations contained in her petition and
accompanying affidavit were correct. She answered in the
affirmative and offered no other evidence or testimony in
support of her petition at the hearing. According to the
hearing transcript, her substantive participation ended
moments into the hearing.
[¶4] The remainder of the hearing consisted
of Mark Rath, who was self-represented, attempting to refute
Kayla Rath's allegations. Mark Rath argued Kayla Rath
misrepresented the situation, his actions were reasonable,
and his conduct was constitutionally protected. To
corroborate these arguments, Mark Rath wanted to call Kayla
Rath as a witness. The district court denied this request,
concluding Mark Rath could not directly question Kayla Rath
out of concern for safety, to minimize conflict between the
parties, and in order to keep the hearing focused on the
factual issues necessary to determine whether to grant Kayla
Rath's petition. Instead, the court allowed Mark Rath to
identify any questions he wanted to ask Kayla Rath and, if
the court deemed the questions appropriate, the court would
ask Kayla Rath the questions. The ...