Rivard v. State

• Docket Number: 23-CV-03803
• Decision Date: 07 December 2023
• Citation: 2023 Vt Super 120701
• Parties: Jeffrey Rivard v. State of Vermont
• Court: Superior Court of Vermont

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2023 Vt Super 120701

Jeffrey Rivard
v.
State of Vermont

No. 23-CV-03803

Superior Court of Vermont, Civil Division, Windham Unit

December 7, 2023

ENTRY REGARDING MOTION

David Barra, Superior Court Judge

Title: Motion to Dismiss and Motion for Limited Appearance for Defendant, State of Vermont (Motion: 3)

Filer: Zachary Chen

Filed Date: October 10, 2023

The matter before the court is Plaintiff Jeffrey Rivard's request for declaratory judgment. 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 a 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 a 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 a criminal case against him, and he identifies himself as "Defendant."^[1] 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] a declaration of such rights, status, and legal relations

Construal at 1. The document generally rehearses the events surrounding Plaintiff's criminal trial (137011-19 Wmcr) and highlights several issues that Plaintiff sees as "disproven," "defective," "improperly ordered," or otherwise unjust and problematic. Id. 1 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 a '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

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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...