Rath v. Rath , 2022 ND 105 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 26, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 105Kayla Rath, n/k/a Kayla Jones, Plaintiff and Appellee
v.
Mark Rath, Defendant and Appellant
and
State of North Dakota, Statutory Real Party in Interest
No. 20210120
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Daniel J. Borgen, Judge.
AFFIRMED IN PART, AND VACATED IN PART.
Opinion of the Court by Jensen, Chief Justice.
Thomas M. Jackson, Bismarck, ND, for plaintiff and appellee.
Mark A. Rath, self-represented, Bismarck, ND, defendant and appellant.
Rath v. Rath
No. 20210120
Jensen, Chief Justice.
[¶1] Mark Rath appeals after the district court entered a third amended
judgment in this divorce action from Kayla Rath, now known as Kayla Jones.
He appeals from an order denying his motion in limine; an order allowing
written, but not oral, closing arguments on his motion to amend the judgment;
and an order amending the judgment regarding parenting time and denying
his petitions for a new trial and for recusal. He also appeals from the court’s
subsequent order determining he is a vexatious litigant. We conclude the court
did not abuse its discretion in denying his motion in limine; in conducting the
hearing; and in allowing written, but not oral, closing arguments. We affirm
the denial of his requests for new trial and recusal and affirm the third
amended judgment.
[¶2] We conclude, however, the district court erred in denying his demand for
a change of judge and erred in referring Jones’s motion for a vexatious litigant
determination under N.D. Sup. Ct. Admin. R. 58 to the presiding judge, who
had previously been disqualified in this case. We therefore vacate the May 2021
order determining Mark Rath a vexatious litigant. We further hold that Rath
has not met his burden to show his constitutional challenge to N.D. Sup. Ct.
Admin. R. 58 has merit, and we exercise our authority under N.D. Sup. Ct.
Admin. R. 58(7) to determine Mark Rath is a vexatious litigant under the rule.
I
[¶3] Rath and Jones were divorced in 2013. This Court has since addressed
numerous issues, primarily relating to Mark Rath’s voluminous post-judgment
motions. See, e.g., Rath v. Rath, 2020 ND 96, 942 N.W.2d 464; Rath v. Rath,
2019 ND 303, 936 N.W.2d 538; Rath v. Rath, 2018 ND 138, 911 N.W.2d 919;
Rath v. Rath, 2018 ND 98, 909 N.W.2d 666; Rath v. Rath, 2017 ND 138, 895
N.W.2d 315; Rath v. Rath, 2017 ND 128, 895 N.W.2d 306; Rath v. Rath, 2017
ND 80, 892 N.W.2d 205; Rath v. Rath, 2016 ND 105, 879 N.W.2d 735; Rath v.
Rath, 2016 ND 83, 878 N.W.2d 85; Rath v. Rath, 2016 ND 71, 877 N.W.2d 298;
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Rath v. Rath, 2016 ND 46, 876 N.W.2d 474; 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.
[¶4] In September 2020 Rath moved the district court to amend the judgment
seeking to modify his parenting time and to provide him authority to take the
minor children outside of the state. Rath subsequently filed a motion in limine
seeking to exclude one of his children, H.R., from testifying at the hearing on
his motion. The court denied his motion in limine.
[¶5] On February 22, 2021, the district court held an evidentiary hearing and
received testimony from the parties, the child H.R., and a social worker. Rath
objected at the end of the hearing when the court did not allow him to make an
oral closing argument. The day after the hearing, before the court ruled on his
motion, Rath petitioned for a new trial and to recuse the judge. The court
thereafter entered an order allowing written closing arguments on the motion
to modify parenting time. Rath objected to the order, and both parties
submitted written closing briefs.
[¶6] On March 2, 2021, Rath filed a motion to hold Jones in contempt. Jones
filed a cross-motion requesting the district court to determine Mark Rath to be
a vexatious litigant under N.D. Sup. Ct. Admin. R. 58.
[¶7] On March 23, 2021, the district court entered its findings and an order
amending the judgment to increase Rath’s parenting time and denying his
petitions for a new trial and for the judge’s recusal. A third amended judgment
was entered granting Rath unsupervised parenting time every other weekend
and on every other Tuesday evening, granting extended summer parenting
time, and allowing for removal of the children from the state for temporary
periods of vacation.
[¶8] On March 30, 2021, the assigned judge recused himself from the case. A
new judge was assigned, who recused herself from the case. The current judge
was then assigned, who entered an order on March 31, 2021, referring Jones’s
vexatious litigant motion to the presiding judge. In April 2021 Rath filed
multiple demands for a change of judge for the currently assigned judge which
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were denied. He also filed a motion “challenging the jurisdiction” of the
presiding judge to rule on the vexatious litigant motion.
[¶9] On May 7, 2021, the presiding judge entered an order granting Jones’s
vexatious litigant motion under N.D. Sup. Ct. Admin. R. 58, determining Mark
Rath is a vexatious litigant, and prohibiting further filings from him without
leave of court. The court entered an order staying further proceedings on May
18, 2021. Several motions remain pending in the district court, including
Rath’s motion for contempt and motions regarding child support and Jones’s
motion for a protective order.
II
[¶10] Rath argues the district court abused its discretion in denying his motion
in limine to prevent his child, H.R., from testifying at the evidentiary hearing;
micromanaging him at the hearing; and allowing written, but not oral, closing
arguments.
[¶11] The district court has broad discretion on evidentiary matters, and this
Court reviews a ruling on a motion in limine under the abuse of discretion
standard. Linstrom v. Normile, 2017 ND 194, ¶ 12, 899 N.W.2d 287; State v.
Kuruc, 2014 ND 95, ¶ 26, 846 N.W.2d 314. We have also explained that the
“court has broad discretion over the conduct of a hearing.” Sollin v. Klein, 2021
ND 75, ¶ 12, 958 N.W.2d 144; see also Jalbert v. Eagle Rigid Spans, Inc., 2017
ND 50, ¶ 9, 891 N.W.2d 135; Gullickson v. Kline, 2004 ND 76, ¶ 15, 678 N.W.2d
138. A court abuses its discretion when it acts in an arbitrary, unreasonable,
or unconscionable manner; when it misinterprets or misapplies the law; or
when its decision is not the product of a rational mental process leading to a
reasoned determination. Sollin, at ¶ 12.
[¶12] Rath asserts the district court abused its discretion in allowing his child
to testify at the February 2021 evidentiary hearing because the child was
improperly influenced by Jones and the manner in which the testimony was
received. Rath’s assertions attack the credibility of the child’s testimony, a
consideration within the trial judge’s discretion, and we conclude the court did
not abuse its discretion with regard to the child’s testimony. We address,
3
however, his argument that the court abused its discretion in allowing written
closing, but not oral, arguments after the hearing.
[¶13] In Fuhrman v. Fuhrman, 254 N.W.2d 97, 101 (N.D. 1977), this Court
held that “litigants in civil nonjury cases . . . have a right to have their
attorneys make a final argument.” See also Isaacson v. Isaacson, 2010 ND 18,
¶ 13, 777 N.W.2d 886; Union State Bank v. Woell, 434 N.W.2d 712, 715 n.1
(N.D. 1989). This Court has further explained:
The right to closing arguments can be waived by the parties and
narrowed by the courts, but it cannot be unilaterally denied. The
protections afforded closing arguments flow from the important
functions they serve. Closing arguments can correct premature
misjudgments by the court and bring opposing viewpoints to the
court’s attention, leading courts to fewer erroneous decisions.
Isaacson, at ¶ 13 (discussing Fuhrman, at 101-02) (internal citation omitted).
[¶14] Rath did not waive his right to closing argument, objecting both at the
hearing and when the district court issued its order, 17 days after the hearing,
allowing for written closing arguments. At the outset of the hearing, the court
noted on the record that two hours were provided for the hearing and
instructed the parties to “construct your arguments and leave time for each
other.” Although the court unilaterally denied closing arguments at the end of
the evidentiary hearing, the court subsequently provided the parties an
opportunity to file written closing arguments from the parties before reaching
its final decision.
[¶15] Rath asserts that too much time had passed after the hearing, he could
not remember everything to make his arguments, and there was insufficient
time to obtain a hearing transcript or recording. Under these facts and
circumstances, we conclude the district court did not abuse its discretion by
denying an oral summation at the end of the hearing and subsequently
permitting written summations. To the extent the court ran afoul of our
holding in Fuhrman by initially denying closing arguments at the hearing, we
conclude the error was harmless. See N.D.R.Civ.P. 61 (“At every stage of the
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proceeding, the court must disregard all errors and defects that do not affect
any party’s substantial rights.”).
III
[¶16] Rath argues the district court erred in modifying the judgment and
abused its discretion in not addressing all of his requested modifications to the
divorce judgment and in failing to explain why the court denied his other
requests.
[¶17] Under N.D.C.C. § 14-05-22(2), the district court has continuing
jurisdiction to modify parenting time. “To modify parenting time, the movant
must establish a material change of circumstances has occurred since the prior
parenting time order and that it is in the best interests of the child to modify
the order.” Williams v. Williams, 2021 ND 134, ¶ 3, 962 N.W.2d 601 (quoting
Green v. Swiers, 2018 ND 258, ¶¶ 12-13, 920 N.W.2d 471). A court’s decision on
parenting time and modification of parenting time are findings of fact, subject
to the clearly erroneous standard of review. Williams, at ¶ 3 (citing Curtiss v.
Curtiss, 2016 ND 197, ¶ 10, 886 N.W.2d 565). Whether to grant a new trial
motion rests entirely within the court’s discretion. Jalbert, 2017 ND 50, ¶ 7.
The court’s decision on a motion for recusal is also reviewed for an abuse of
discretion. Rath, 2013 ND 243, ¶ 14.
[¶18] Although Rath’s motion to amend the divorce judgment was, in certain
respects, successful in that the district court granted extended unsupervised
parenting time and extended summer parenting time, he is dissatisfied with
the court’s decision. In its March 2021 order, the court found a material change
of circumstances had occurred and it was in the children’s best interests to
continue the overnight and increased visits with Rath that had been occurring,
moving toward a more normal parenting time schedule. Despite Rath’s
petitions for a new trial and for recusal filed after the hearing containing
potentially contemptuous language, the court nevertheless ordered entry of the
third amended judgment with some of the parenting plan modifications sought
by Rath.
5
[¶19] On our review of the record, the district court’s findings of fact and
conclusions are sufficient for us to understand its decision. There is evidence
in the record to support the findings, the court did not misapply the law, and
we are not left with a firm conviction a mistake has been made. We conclude
the court’s decision modifying the divorce judgment is not clearly erroneous
and the court did not abuse its discretion in denying his petitions for new trial
and for recusal.
IV
[¶20] Rath contends the district court made a number of errors leading to the
May 2021 order determining he is a vexatious litigant under N.D. Sup. Ct.
Admin. R. 58. He challenges the presiding judge’s authority to enter the order
and the determination he is a vexatious litigant. At the time of Jones’s motion,
N.D. Sup. Ct. Admin. R. 58 provided, in relevant part:
Section 1. Purpose.
This rule addresses vexatious litigation, which impedes the proper
functioning of the courts, while protecting reasonable access to the
courts.
Section 2. Definition.
(a) Litigation means any civil or disciplinary action or
proceeding, including any appeal from an administrative
agency, any review of a referee order by the district court,
and any appeal to the Supreme Court.
(b) Vexatious litigant means a person who habitually,
persistently, and without reasonable grounds engages in
conduct that:
(1) serves primarily to harass or maliciously injure
another party in litigation;
(2) is not warranted under existing law and cannot be
supported by a good faith argument for an extension,
modification, or reversal of existing law;
(3) is imposed solely for delay;
(4) hinders the effective administration of justice;
(5) imposes an unacceptable burden on judicial
personnel and resources; or
(6) impedes the normal and essential functioning of
the judicial process.
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(c) Presiding judge means the presiding judge of a district
under N.D. Sup. Ct. Admin. R. 2.
Section 3. Pre-filing Order.
(a) The presiding judge may enter a pre-filing order
prohibiting a vexatious litigant from filing any new litigation
or any new documents in existing litigation in the courts of
this state as a self-represented party without first obtaining
leave of a judge of the court in the district where the
litigation is proposed to be filed. A pre-filing order must
contain an exception allowing the person subject to the order
to file an application seeking leave to file.
(b) A district judge or referee may, on the judge’s own motion
or the motion of any party, refer the consideration of whether
to enter a pre-filing order to the presiding judge. The
presiding judge may also consider whether to enter such a
pre-filing order on the judge’s own motion or the motion of a
party if the litigant with respect to whom the pre-filing order
is to be considered is a party to an action before the presiding
judge.
Section 4. Finding.
A presiding judge may find a person to be a vexatious litigant
based on a finding that:
(a) in the immediately preceding seven-year period the
person has commenced, prosecuted or maintained as a self-
represented party at least three litigations, other than in
small claims court, that have been finally determined
adversely to that person; or
(b) after a litigation has been finally determined against the
person, the person has repeatedly relitigated or attempted
to relitigate, as a self-represented party, either
(1) the validity of the determination against the same
defendant or defendants as to whom the litigation was
finally determined; or
(2) the cause of action, claim, controversy, or any of the
issues of fact or law, determined or concluded by the
final determination against the same defendant or
defendants as to whom the litigation was finally
determined; or
(c) in any litigation while acting as a self-represented party,
the person repeatedly files unmeritorious motions,
pleadings, or other papers, conducts unnecessary discovery,
7
or engages in other tactics that are frivolous or solely
intended to cause unnecessary burden, expense or delay; or
(d) the person has previously been declared to be a vexatious
litigant by any state or federal court of record in any action
or proceeding.
Section 5. Notice.
If the presiding judge finds that there is a basis to conclude that a
person is a vexatious litigant and that a pre-filing order should be
issued, the presiding judge must issue a proposed pre-filing order
along with the proposed findings supporting the issuance of the
pre-filing order. The person who would be designated as a
vexatious litigant in the proposed order will have 14 days to file a
written response to the proposed order and findings. If a response
is filed, the presiding judge may, in the judge’s discretion, grant a
hearing on the proposed order. If no response is filed within 14
days, or if the presiding judge concludes following a response and
any subsequent hearing that there is a basis for issuing the order,
the presiding judge may issue the pre-filing order.
Section 6. Appeal.
A pre-filing order entered by a presiding judge designating a
person as a vexatious litigant may be appealed to the Supreme
Court under N.D.C.C. § 28-27-02 and N.D.R.App.P. 4.
Section 7. Supreme Court Order.
The Supreme Court may, on the Court’s own motion or the motion
of any party to an appeal, enter a pre-filing order prohibiting a
vexatious litigant from filing any new litigation in the courts of
this state as a self-represented party without first obtaining leave
of a judge of the court where the litigation is proposed to be filed.
If the Supreme Court finds that there is a basis to conclude that a
person is a vexatious litigant and that a pre-filing order should be
issued, the Court must issue a proposed pre-filing order along with
the proposed findings supporting the issuance of the pre-filing
order. The person who would be designated as a vexatious litigant
in the proposed order will have 14 days to file a written response
to the proposed order and findings. If no response is filed within 14
days, or if the Supreme Court concludes following a response and
any subsequent hearing that there is a basis for issuing the order,
the pre-filing order may be issued.
....
Section 10. Effect of Pre-filing Order.
8
A pre-filing order entered under this rule super[s]edes any other
order limiting or enjoining a person’s ability to file or serve papers
or pleadings in any North Dakota State court litigation.
[¶21] We review a district court order finding a litigant vexatious for an abuse
of discretion. Smith v. Erickson, 2019 ND 48, ¶ 15, 923 N.W.2d 503; Matter of
Emelia Hirsch Trust, 2017 ND 291, ¶ 8, 904 N.W.2d 740. A court abuses its
discretion when it acts arbitrarily, unconscionably, or unreasonably; when it
misinterprets or misapplies the law; or when its decision is not the product of
a rational mental process leading to a reasoned determination. Smith, at ¶ 15;
Hirsch, at ¶ 8.
[¶22] The district court found Mark Rath is a vexatious litigant in that he has
repeatedly attempted to relitigate, as a self-represented party, determinations
made by every judge assigned to this case and on nearly every order issued;
and in that he has repeatedly filed unmeritorious motions, pleadings and other
papers, and engaged in filings that are frivolous and cause unnecessary burden
and expense to Jones. The court further found filings were frivolous, required
a significant amount of court time and resources, were oftentimes inconsistent
with one another or nonsensical, and were abusive. The court’s order
prohibited Mark Rath from filing any new litigation or any new documents in
existing litigation without leave of court and relieved Kayla Jones from
responding unless the court permits Mark Rath’s filing and requests a
response.
A
[¶23] Rath argues the district court erred as a matter of law in denying his
demand for change of judge after the current judge was assigned to the case
and erred in permitting the presiding judge to rule on the vexatious litigant
motion.
[¶24] “Section 29-15-21, N.D.C.C., is a ‘statutory arrangement for permitting
a litigant to obtain a change of judge, thereby assuring fair trials and
promoting the fairness and integrity of the courts.’” Wald v. Hovey, 2022 ND
15, ¶ 9, 969 N.W.2d 163 (quoting Traynor v. Leclerc, 1997 ND 47, ¶ 14, 561
9
N.W.2d 644). Under N.D.C.C. § 29-15-21, a party to a civil proceeding may
obtain a change of judge. This section provides, in part:
1. Subject to the provisions of this section, any party to a civil or
criminal action or proceeding pending in the district court may
obtain a change of the judge before whom the trial or any
proceeding with respect thereto is to be heard by filing with the
clerk of the court in which the action or proceeding is pending the
original of a written demand for change of judge[.]. . .
2. The demand is invalid unless it is filed with the clerk of the court
not later than ten days after the occurrence of the earliest of any
one of the following events:
a. The date of the notice of assignment or reassignment
of a judge for trial of the case;
b. The date of notice that a trial has been scheduled; or
c. The date of service of any ex parte order in the case
signed by the judge against whom the demand is filed.
3. . . . In any event, no demand for a change of judge may be made
after the judge sought to be disqualified has ruled upon any matter
pertaining to the action or proceeding in which the demanding
party was heard or had an opportunity to be heard. Any proceeding
to modify an order for alimony, property division, or child support
pursuant to section 14-05-24 or an order for child custody pursuant
to section 14-05-22 must be considered a proceeding separate from
the original action and the fact that the judge sought to be
disqualified made any ruling in the original action does not bar a
demand for a change of judge.
(Emphasis added.) The judge sought to be disqualified has no authority or
discretion to determine the timeliness or validity of the demand and the
presiding district court judge decides whether the demand should be denied.
N.D.C.C. § 29-15-21(6).
[¶25] In Rath, 2017 ND 138, ¶ 13, this Court held that a motion to modify child
support constituted a separate proceeding from the original divorce action, see
N.D.C.C. § 29-15-21(3), and that Mark Rath was entitled to demand a change
of judge for the child support modification proceedings if he met the
requirements of N.D.C.C. § 29-15-21.
10
[¶26] Here, after entry of the third amended judgment, the assigned judge
recused himself from the case. On March 30, 2021, the current judge was
assigned to act in the case. On March 31, 2021, the current judge entered an
ex parte order referring Kayla Jones’s pending vexatious litigant cross-motion
to the presiding judge. On April 5, 2021, Rath moved for modification of his
child support obligation. On April 11, 2021, he filed a demand for a change of
judge, which was denied on April 14, 2021, as untimely and not in compliance
with the statute, leaving the current judge assigned to the case.
[¶27] Generally, “[a]n order denying a demand for a change of judge is not
appealable, but it is reviewable on appeal from a final judgment.” Wald, 2022
ND 15, ¶ 7 (quoting Traynor, 1997 ND 47, ¶ 6). “However, we explained it is
appropriate to consider exercising our supervisory jurisdiction when a demand
for a change of judge has been denied because no adequate alternative remedy
exists.” Wald, at ¶ 7.
[¶28] Rath’s April 5, 2021 motion to modify child support was a new
proceeding, separate from the original action for purposes of N.D.C.C. § 29-15-
21. His April 11, 2021 demand for change of judge was therefore timely. Even
though the child support motion remains pending, we exercise our supervisory
power and conclude the district court erred in denying Rath’s demand for
change of judge for the current judge with respect to the motions still pending
in the district court.
[¶29] Rath also challenged the presiding judge’s authority to decide the
vexatious litigant motion. On August 26, 2018, Rath filed a demand for change
of judge under N.D.C.C. § 29-15-21 against the presiding judge, seeking his
disqualification from this matter. On August 28, 2018, his demand for change
of judge was granted, and the current judge was assigned to act in the case.
Rath contends that the presiding judge is required to disqualify himself on
grounds of bias or prejudice and also argues the presiding judge “can never sit
on this matter again unless he is the only Judge available in the district.”
[¶30] Rule 58(3) to (5), N.D. Sup. Ct. Admin. R., specifically provides the
presiding judge with the authority to enter the pre-filing order if the presiding
11
judge finds a basis to conclude the person is a vexatious litigant. However, the
presiding judge in this case was previously disqualified in this divorce case in
2018. We have held new filings in divorce cases are new proceedings that can
be assigned to a new judge and have new demands for change of judge filed.
See N.D.C.C. § 29-15-21(3); Rath, 2017 ND 138, ¶ 13. Section 29-15-21,
N.D.C.C., however, is silent regarding what happens in a divorce case when a
new proceeding is filed and the case is assigned to a judge previously subject
to a demand for change of judge. This Court has interpreted and applied
N.D.C.C. § 29-15-21 broadly to assure fair trials and promote the courts’
fairness and integrity. See Wald, 2022 ND 15, at ¶¶ 12-16 (and cases discussed
therein).
[¶31] Consistent with a broad application of N.D.C.C. § 29-15-21, we hold that
a demand for change of judge, once granted, carries forward in any particular
case, even when a new proceeding is filed in a divorce case triggering a new
judge assignment. Once the presiding judge was subject to a demand for
change of judge in this divorce case, he was precluded from acting in the case
in the subsequent proceedings relating to the vexatious litigant motion. We
therefore vacate the May 2021 order determining Mark Rath is a vexatious
litigant under N.D. Sup. Ct. Admin. R. 58.
[¶32] Although we vacate the May 2021 vexatious litigant order, we conclude
this is an appropriate case for this Court to consider exercising our authority
sua sponte under N.D. Sup. Ct. Admin. R. 58(7) to enter a pre-filing order
prohibiting a vexatious litigant from filing new litigation in the courts of this
state as a self-represented party without first obtaining leave of a judge of the
court where the litigation is proposed to be filed. Rath argues on appeal that
he cannot reasonably be determined to be a vexatious litigant, has never
attempted to relitigate anything, and had reasonable grounds to file his
petitions for new trial and for a contempt motion. We disagree.
[¶33] On our review, the extensive record contains multiple unwarranted
requests for recusal over the years, numerous rejected contempt motions
seeking to hold Kayla Jones in contempt for perceived violations of the
judgment, and a litany of other frivolous and abusive filings. In the over eight
12
years this case has been ongoing, there are now over 1,700 filings, initiated
mostly by Mark Rath, which include over 70 filings since Jones made her
motion to determine Rath a vexatious litigant. On our own motion, we find that
there is a basis to conclude Mark Rath is a vexatious litigant and that a pre-
filing order should be issued under N.D. Sup. Ct. Admin. R. 58(7). This Court
will therefore issue a separate, proposed pre-filing order in accordance with the
requisite procedures provided in N.D. Sup. Ct. Admin. R. 58(7).
B
[¶34] Rath argues N.D. Sup. Ct. Admin. R. 58 is unconstitutional and violates
the First Amendment and N.D. Const. art. I, §§ 9 and 21. He further raises
arguments, inter alia, claiming violation of equal protection, the animus
doctrine, overbreadth doctrine, and freedom of association. He contends the
rule improperly treats a self-represented person differently than those who
have attorneys.
[¶35] Article I, section 9, of the North Dakota Constitution guarantees access
to state courts:
All courts shall be open, and every man for any injury done him in
his lands, goods, person or reputation shall have remedy by due
process of law, and right and justice administered without sale,
denial or delay. Suits may be brought against the state in such
manner, in such courts, and in such cases, as the legislative
assembly may, by law, direct.
Article I, section 21, of the North Dakota Constitution provides:
No special privileges or immunities shall ever be granted which
may not be altered, revoked or repealed by the legislative
assembly; nor shall any citizen or class of citizens be granted
privileges or immunities which upon the same terms shall not be
granted to all citizens.
[¶36] This Court has held that “[a] court may restrict an individual’s right to
access the state’s legal system in light of the rights of the public and necessities
of the occasion.” Smith, 2019 ND 48, ¶ 12 (citing Fed. Land Bank v. Ziebarth,
13
520 N.W.2d 51, 56 (N.D. 1994)). In Smith, at ¶¶ 11-16, we concluded finding a
person is a vexatious litigant and entering a pre-filing order does not violate
that person’s constitutional right to access the court system.
[¶37] We have long held courts have the inherent authority to control dockets
to stem abuses of the judicial process and to maintain the integrity of the court.
See, e.g., Holkesvig v. Grove, 2014 ND 57, ¶ 17, 844 N.W.2d 557; Fed. Land
Bank, 520 N.W.2d at 58; see also Holkesvig v. VandeWalle, 2016 ND 107, ¶ 11,
879 N.W.2d 728. This Court also has the authority to promulgate a rule to guide
the district court’s determination of vexatious litigants. See N.D. Const. art.
VI, § 2 (“The supreme court shall be the highest court of the state.”); N.D.C.C.
§ 27-02-05 (“The supreme court is vested with full power and authority
necessary to carry into complete execution all its judgments, decrees, and
determinations in the matters over which it has jurisdiction and for the
exercise of its jurisdiction as the supreme judicial tribunal of this state.”).
[¶38] Procedural safeguards are contained within N.D. Sup. Ct. Admin. R. 58
providing for a specific vexatious litigant definition, appropriate notice,
requisite court findings, and the pre-filing order contents. Rather than
completely barring a vexatious litigant from the courts, the rule requires that
“[a] pre-filing order must contain an exception allowing the person subject to
the order to file an application seeking leave to file.” N.D. Sup. Ct. Admin. R.
58(3)(a). We conclude sufficient grounds supporting our promulgation of Rule
58 exist in this Court’s inherent authority and in other courts’ precedent. See,
e.g., Wolfe v. George, 486 F.3d 1120, 1125 (9th Cir. 2007) (holding California’s
vexatious litigant statute was not unconstitutionally vague; was not overbroad;
was rationally related to a legitimate state purpose, and did not violate due
process rights of litigants; did not violate Equal Protection Clause; did not
violate Double Jeopardy and Ex Post Facto Clauses; did not violate Eighth
Amendment prohibition on excessive fines; and was not an unconstitutional
bill of attainder); Telford v. Nye, 301 P.3d 264 (Idaho 2013) (concluding similar
rule was not void for vagueness). We conclude Rath’s constitutional challenge
to N.D. Sup. Ct. Admin. R. 58 is without merit.
14
V
[¶39] We have considered Rath’s remaining issues and arguments and
conclude they are either unnecessary to our decision or without merit. The
district court did not abuse its discretion in denying his motion in limine, in
conducting the hearing, and in allowing written closing arguments to be filed
after the hearing. The orders and third amended judgment are affirmed.
[¶40] The district court erred in denying Rath’s demand for a change of judge
for the current judge and erred in referring Jones’s motion for a vexatious
litigant determination under N.D. Sup. Ct. Admin. R. 58 to the presiding judge
who had previously been disqualified in this case in 2018. The May 2021 order
determining Mark Rath a vexatious litigant is vacated. We further hold that
Rath’s constitutional challenge to N.D. Sup. Ct. Admin. R. 58 is without merit
and exercise our authority under N.D. Sup. Ct. Admin. R. 58(7) to determine
Mark Rath is a vexatious litigant.
[¶41] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
15