Vermont Superior Court wssdfigzsm

VERMONT SUPERIOR COURT Windham Unit Court Street Newfane VT 05345 802-365-7979 wwwvermontjudiciaryorgCIVIL DIVISION

Case N0. 23-CV—03803

EE

ENTRY REGARDING MOTION

Title: Motion to Dismiss and Motion for Limited Appearancefor Defendant, State of Vermont (Motion: 3) Filer: Zachary Chen

Filed Date: October 10, 2023

The matter before the court is Plaintiff Jeffrey Rivard’s requestfor declaratoryjudgment. Defendant State of Vermont moves to dismiss the matter pursuant to V.R.C.P. 12(b)(4) for insufficient process, V.R.C.P. 12(b)(5) for insufficient service of process; or,

in the alternative, for lack of subject matter jurisdiction pursuant to V.R.C.P. 12(b)(1) and failure to state claim upon which relief can be

granted pursuant to V.R.C.P. 12(b)(6). Plaintiff opposes the motion. For the following reasons, Defendant’s motion is GRANTED.

I. Background

On September 12, 2023, Plaintiff filed document titled ”Construal," which sets forth Plaintiff’s

claims. Construal dated September 12, 2023. The document is subtitled ”Declaratory Judgment,”

captioned 1370-11-19 Wmcr, which, as Plaintiff makes clear,

is criminal case against him, and he

identifies himself as ”Defendant.” The ”Construal” explains that Plaintiff

pray[s] for declaratory judgment regarding [his] rights and relative to [his] probative relations as

it pertains to probate, family, and equity law in view of statute relative thereunder and within

the matter of the criminal docket and so seek[s] declaration of such rights, status, and legal

relations.

Construal at 1. The document generally rehearses the events surrounding Plaintiff’s criminal trial (1370- 11-19 Wmcr) and highlights several issues that Plaintiff sees as ”disproven,” ”defective,” ”improperly ordered,” or otherwise unjust and problematic. Id. et seq. In particular, Plaintiff‘s main issue appears

to be with the ”bail conditions” in 1370-11-19 Wmcr. Id. at 3, 5, 6. Plaintiff asserts that they were

"improperly ordered” and ”[improperly] upheld.”

Id. at 6. Specifically, Plaintiff disputes the legality of

'no contact’ condition of release ordered on December 19, 2019. Id. at 4. However, Plaintiff’s

”Construal" also highlights several other issues. Plaintiff alleges that his domestic assault charge from

Plaintiff begins his “Construal” by proclaiming: “Ljeffrey Rivard, named defendant within 1370—11—19 docketed with Windham Criminal Division of Brattleboro—Vermont Superior Court ....” Construal at 1. Entry Regarding Motion Page of 23—CV—03803 Jeffrey Rivard v. State of Vermont

Jeffrey Rivard v. State of Vermont
Entry Regarding Motion Page 2 of 4

23-CV-03803 Jeffrey Rivard v. State of Vermont

November 19, 2019, was “defective,” because it included a “false sworn misrepresentation.” Construal 

at 2. The misrepresentation, Plaintiff alleges, is that Officer Winkler’s citation included a statement: “A 

child tried to intervene in and stop an assault.[,]” even though, no such statement, according to Plaintiff, 

is supported by the record. Id. Moreover, Plaintiff alleges that the State’s evidence at trial did not 

support a conclusion that his child ever witnessed him committing an assault. Id. The “Construal” even 

goes on to speculate that “it was probably an accident [that Plaintiff was] found guilty by a jury.” Id. at 3. 

Indeed, Plaintiff submits that his conviction, “in hindsight,” was “effectively disproven.” Id. at 6. Plaintiff 

also alleges that the Windham County Deputy State’s Attorney Nevins, “without any lawful or factual 

basis,” opposed “contact,” which the court later “denied.” Id. at 5. The “Construal” then summarizes 

that “it is the history of these matters [that requires] review for declaratory judgment.” Id. at 6.

On October 10, 2023, Defendant filed a motion to dismiss. Defendant’s Motion for Limited 

Appearance and to Dismiss dated October 10, 2023. Defendant “move[s] to dismiss the matter for 

insufficient process pursuant to V.R.C.P. 12(b)(4) and insufficient service of process pursuant to V.R.C.P. 

12(b)(5); or, in the alternative, for lack of subject matter jurisdiction pursuant to V.R.C.P. 12(b)(1) and 

failure to state a claim upon which relief can be granted pursuant to V.R.C.P. 12(b)(6).” Id. 1. The 

motion asserts that although Plaintiff served on the State “the first three pages of his ‘Construal’ and 

‘Brief for Review’; and a blank copy of a judiciary form, ‘Notice of Appearance for Self-Represented 

Party,’” he “did not attach a blank Answer form to the documents.” Id. at 3. Defendant argues that 

“Plaintiff’s filing a full copy of his ‘Construal’ and ‘Brief for Review’ with this Court—i.e., an entity within 

the Judicial Branch—does not equate to having served it upon the appropriate office within the 

Executive Branch.” Id. at 6. Additionally, the motion states that “the documents from the ‘Construal’ 

and ‘Brief for Review’ are unsigned.” Id. In the alternative, Defendant asserts that “even if this Court 

deems the State properly served with sufficient process, ... this Court still would not have subject 

matter jurisdiction over the claims that Plaintiff raises in his ‘Construal’ and ‘Brief for Review’ because 

this Court does not have subject matter jurisdiction over appeals from criminal proceedings.” Id. at 8. 

Defendant also argues that “[e]ven if this Court could exercise subject matter jurisdiction over this 

action, Plaintiff has not articulated any cognizable claim.” Id. at 11. On October 10, 2023, Plaintiff filed 

his response that opposes Defendant’s motion. See Response to Motion For Limited Appearance And To 

Dismiss dated October 10, 2023. 

II. Analysis

As a preliminary matter, the court affords Plaintiff leeway with respect to the service of process. 

The court’s record shows that Plaintiff has made every effort to properly serve Defendant and to the 

extent that the initial service of process was insufficient, the court accepts Plaintiff’s attempt to correct 

it and finds that Defendant was properly served. See Response to Motion for Limited Appearance and to 

Dismiss at 4. The court next addresses Defendant’s motion to dismiss for lack of subject matter 

jurisdiction. 
Entry Regarding Motion Page 3 of 4

23-CV-03803 Jeffrey Rivard v. State of Vermont

Pursuant to V.R.C.P. 12(h)(3), “[w]henever it appears by suggestion of the parties or otherwise 

that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” “A court may 

consider evidence outside the pleadings in resolving a motion to dismiss for lack of subject matter 

jurisdiction.” Conley v. Crisafulli, 2010 VT 38, ¶ 3, 188 Vt. 11 (citing Makarova v. United States, 201 F.3d 

110, 113 (2d Cir. 2000)). See also V.R.E. 201.2 Accordingly, the court takes judicial notice of “proceedings 

in 1370-11-19 Wmcr and the existence of the ensuing appeal ... because they demonstrate this [c]ourt’s 

lack of subject matter jurisdiction over the issues Plaintiff attempts to articulate in his ‘Construal’ and 

‘Brief for Review.’” Motion for Limited Appearance And To Dismiss at 9. 

Plaintiff asserts in his “Construal,” that he is seeking a “declaratory judgment regarding [his] 

rights and relative to [his] probative relations as it pertains to probate, family, and equity law in view of 

statute relative thereunder and within the matter of the criminal docket ....” Construal at 1. “The 

purpose of a declaratory judgment is to ‘provide a declaration of rights, status, and other legal relations 

of parties to an actual or justiciable controversy.’” Doria v. University of Vermont, 156 Vt. 114, 117 

(1991) (quoting Robtoy v. City of St. Albans, 132 Vt. 503, 504 (1974)). However, “[u]nless an actual or 

justiciable controversy is present, a declaratory judgment is merely an advisory opinion which [courts] 

lack the constitutional authority to render.” Id. (citing Lace v. University of Vermont, 131 Vt. 170, 175 

(1973)). Thus, declaratory relief is available only when a party is suffering from “the threat of actual 

injury to a protected legal interest.” Town of Cavendish v. Vermont Pub. Power Supply Auth., 141 Vt. 

144, 147. 

And although it might appear that Plaintiff’s claims for “declaratory judgment” would fall 

squarely under Vermont’s Declaratory Judgments Act, see 12 V.S.A. §§ 4711–4725,3 in essence, Plaintiff 

here is effectively seeking an appeal of his conviction in 1370-11-19 Wmcr. Indeed, throughout the 

“Construal,” Plaintiff merely rehearses the events underlying his conviction in 1370-11-19 Wmcr and, as 

mentioned above, describes what issues he sees as “disproven,” “defective,” “improperly ordered,” or 

otherwise unjust and problematic. In particular, Plaintiff seems to be challenging the validity of the 

conditions of release ordered in 1370-11-19 Wmcr and his conviction. However, Plaintiff also disputes 

the State’s evidence and criticizes the Windham County Deputy State’s Attorney’s overall performance 

in that matter. See Construal at 2 et seq. 

Under the Vermont Constitution, “[t]he judicial power of the State [is] vested in a unified judicial 

system which [is] composed of a Supreme Court, a Superior Court, and such other subordinate courts as 

the General Assembly may from time to time ordain and establish.” Vt. Const. ch. II, § 4. The Vermont 

2

 V.R.E. 201 states

...

(b) ... A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally 

known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by 

resort to sources whose accuracy cannot reasonably be questioned.

... 

(d) ... A court shall take judicial notice if requested by a party and supplied with the necessary information.

...

(f) ... Judicial notice may be taken at any stage of the proceeding. 

.... 

3

 Plaintiff even appears to adopt the terminology of Vermont’s Declaratory Judgments Act by labeling his complaint 

“Construal” and referring to ‘liberal construction’ of declaratory judgments. See e.g., Response to Motion For Limited 

Appearance And To Dismiss at 4. 
Entry Regarding Motion Page 4 of 4

23-CV-03803 Jeffrey Rivard v. State of Vermont

Supreme Court’s jurisdiction is derived from the Constitution, which states that this court “shall exercise 

appellate jurisdiction in all cases, criminal and civil, under such terms and conditions as it shall specify in 

rules not inconsistent with law.” Id. ch. II, § 30. Conversely, trial courts have “jurisdiction as provided by 

law,” Id. ch. II, § 31, meaning their jurisdiction is “shaped by the [L]egislature.” In re Mountain Top Inn & 

Resort, 2020 VT 57, ¶ 24, 212 Vt. 554 (quoting State v. Saari, 152 Vt. 510, 518 (1989)). Pursuant to 4 

V.S.A. § 31, the civil division has 

(1) original and exclusive jurisdiction of all original civil actions, except as otherwise provided in 

sections 2, 32, 33, 34, 35, and 1102 of this title; [and]

(2) appellate jurisdiction of causes, civil and criminal, appealable to the court;

...

(emphasis supplied). Meanwhile, statute also specifies that the Vermont Supreme Court has “exclusive

jurisdiction of appeals from judgments, rulings, and orders of the Superior Court ... unless otherwise 

provided by law.” 4 V.S.A. § 2(a) (emphasis supplied). And since Plaintiff’s “Construal” is essentially 

asking the civil division to review the decision of the criminal division in 1370-11-19 Wmcr, this court 

cannot address Plaintiff’s demands because it lacks the subject matter jurisdiction over appeals from the 

criminal division.4 Accordingly, as Defendant correctly observes, “the Vermont Supreme Court’s 

exclusive jurisdiction over appeals from final judgments precludes this [c]ourt from reviewing the verdict 

and sentence in 1370-11-19 Wmcr ....” Motion for Limited Appearance And To Dismiss at 10.

To the extent that Plaintiff seeks this court to review the conditions of release in 1370-11-19 

Wmcr imposed on August 15, 2023, pursuant to 13 V.S.A. § 7556(b), Plaintiff should instead “appeal ... 

to ... a single Justice of the Supreme Court who may hear the matter or at his or her discretion refer it to 

the entire Supreme Court for hearing.” 

Order

For the foregoing reasons, Defendant’s motion to dismiss for lack of subject matter jurisdiction 

pursuant to V.R.C.P. 12(b)(1) is GRANTED and the court need not reach the alternative arguments. 

Signed electronically December 7, 2023 pursuant to V.R.E.F 9(d).

_________________________________________

David Barra

Superior Court Judge

4

 Moreover, Plaintiff has also already appealed 1370-11-19 Wmcr in the Vermont Supreme Court and the case is 

currently pending as 23-AP-289. See Motion For Limited Appearance And To Dismiss at 9.