Reaffirming Absolute Prosecutorial Immunity and Rule 11 Duties of Pro Se Litigants: Commentary on Rivard v. Windham State’s Attorney

1. Introduction

This commentary analyzes the Vermont Supreme Court’s December 2025 entry order in Jeffrey Rivard v. Windham State Attorney et al., No. 25-AP-305, an appeal from the Superior Court, Windham Unit, Civil Division. Although the case was decided by a three-justice panel and, as the entry order itself notes, is “not to be considered as precedent before any tribunal,” it nonetheless offers a clear reaffirmation of two important legal principles:

The breadth of absolute prosecutorial immunity in Vermont for actions taken in the judicial phase of criminal proceedings; and
The scope and seriousness of Rule 11 obligations for self-represented litigants, particularly as to the accuracy and integrity of legal citations.

The plaintiff, Jeffrey Rivard, brought a civil action alleging abuse of process and malicious prosecution against the State, the Department of State’s Attorneys and Sheriffs, the Windham County State’s Attorney’s Office, and Deputy State’s Attorney Johns Congdon. His claims arose out of a criminal trespass prosecution based on an alleged violation of a no-trespass order issued by his child’s school.

Rivard alleged that the charging prosecutor (Congdon) pursued criminal trespass despite knowing the facts did not constitute a crime, sought unduly restrictive conditions of release (including a no-stalking condition allegedly misrepresented as requested by victims), and withheld exculpatory evidence. He further claimed the prosecution was intended to conceal misconduct by school officials and police.

The civil division dismissed the complaint, holding that Rivard failed to state viable abuse-of-process or malicious-prosecution claims and that the defendants were protected by prosecutorial immunity. Rivard appealed. The Vermont Supreme Court affirmed, grounding its decision principally on absolute prosecutorial immunity and, in the process, issued an explicit warning to Rivard regarding his submission of nonexistent or mismatched case citations—a warning anchored in Vermont Rule of Civil Procedure 11 and Vermont Rule of Appellate Procedure 25(d).

2. Summary of the Entry Order

The Court’s decision may be summarized as follows:

Civil claims dismissed on immunity grounds. The Court held that, taking Rivard’s allegations as true, the actions of the State’s Attorney’s Office and Deputy State’s Attorney Congdon—charging him, prosecuting the case, and seeking particular conditions of release—were all acts within the general authority of a prosecutor and part of the judicial phase of the criminal process. Under Muzzy v. State, this triggers absolute prosecutorial immunity from civil suit.
Improper motive does not defeat immunity. Even assuming ill will, improper purpose, or dishonest intent, the Court reaffirmed that such motives do not strip a prosecutor of absolute immunity when performing prosecutorial functions, citing O’Connor v. Donovan and the U.S. Supreme Court’s decision in Imbler v. Pachtman.
No right to discovery before immunity is resolved. Rivard argued that he was entitled to discovery before the court could determine the applicability of immunity. The Court rejected this argument, invoking Billado v. Appel for the proposition that discovery is generally not allowed until immunity issues are resolved. The Court also noted Rivard had not properly requested Rule 56(d) relief in the trial court, so any such argument was not preserved for appeal.
Personal jurisdiction/service issue immaterial due to failure to state a claim. After dismissal, Rivard moved to vacate on the ground that the sheriff had never served Congdon personally. The trial court denied the motion because the complaint failed to state a claim against Congdon in his individual capacity regardless of service. The Supreme Court agreed that this issue provided no basis for reversal.
Preliminary injunction properly denied. Rivard requested a preliminary injunction to prevent the State’s Attorney from using certain criminal records in the criminal case. Because the underlying civil complaint was properly dismissed, the Court held the denial of injunctive relief followed as a matter of course.
Severe warning over fabricated/mismatched citations. The Court confronted Rivard’s use of multiple case citations that did not correspond to any known Vermont decisions. It reminded him that under V.R.C.P. 11(b)(2) and V.R.A.P. 25(d)(2), both attorneys and self-represented litigants certify that their legal contentions are warranted by existing law or a nonfrivolous argument for change. Citing Zorn v. Smith, the Court emphasized that pro se parties are bound by Rule 11 and warned Rivard that similar conduct in the future may result in sanctions under V.R.A.P. 25(d)(3).

3. Detailed Analysis

3.1 Procedural Posture and Standard of Review

The case reached the Vermont Supreme Court as an appeal from an order granting the defendants’ motion to dismiss under Vermont Rule of Civil Procedure 12(b)(6). The Supreme Court reviewed that dismissal de novo, applying the same standard as the trial court.

Relying on Birchwood Land Co. v. Krizan, 2015 VT 37, ¶ 6, 198 Vt. 420, the Court reiterated that a motion to dismiss for failure to state a claim is only upheld when:

"it is beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief."

In other words, on a 12(b)(6) motion, the court assumes the truth of all well-pleaded factual allegations and gives the plaintiff the benefit of all reasonable inferences, but will dismiss if, even on that generous view, the law affords no remedy. Here, rather than focusing on the finer points of tort elements, the Supreme Court reached for a more fundamental bar: absolute prosecutorial immunity.

3.2 Prosecutorial Immunity as the Decisive Ground

The core of the Court’s decision is the holding that the defendants—state prosecutorial entities and an individual deputy state’s attorney—are absolutely immune from civil liability for the acts alleged by Rivard.

3.2.1 Governing standard: Muzzy v. State

Citing Muzzy v. State, 155 Vt. 279 (1990), the Court restated Vermont’s rule:

"[P]rosecutors have ... absolute immunity from civil suits to the extent that the actions complained of are associated with the judicial phase of the criminal process and are within [their] general authority."

Two prongs must be satisfied to invoke absolute prosecutorial immunity:

The conduct must be associated with the judicial phase of the criminal process (as opposed to investigative, administrative, or purely executive activities); and
The conduct must fall within the prosecutor’s general authority under law.

3.2.2 Scope of a Vermont state’s attorney’s authority

To underscore that the challenged conduct lay squarely within prosecutorial authority, the Court quoted 24 V.S.A. § 361(a), which provides that state’s attorneys shall:

"prosecute for offenses committed within [the state’s attorney’s] county, and all matters and causes cognizable by the Supreme and Superior Courts on behalf of the State, [and] file informations and prepare bills of indictment."

Rivard’s allegations—charging him with criminal trespass, pressing the criminal case, and advocating particular conditions of release (including a no-stalking condition)—are archetypal exercises of the prosecution function under § 361(a). The Court noted it was "undisputed" that these acts were within defendants’ general authority.

3.2.3 Application to Rivard’s allegations

Rivard alleged that Attorney Congdon:

Filed criminal trespass charges despite knowing the underlying facts did not constitute a crime;
Argued for overly restrictive and unrelated conditions of release, including a no-stalking condition, purportedly based on a false assertion that victims had requested it; and
Withheld exculpatory evidence in the criminal proceeding.

Each of these acts is closely tied to the judicial phase of a criminal case:

Charging decisions (filing or drafting an information) are a traditional prosecutorial function.
Advocating bail and conditions of release is part of courtroom advocacy in the ongoing criminal proceeding.
Handling of evidence in relation to a pending criminal case (even when misconduct is alleged) is likewise treated as part of the prosecutorial role in litigation, not a separate administrative act.

Accordingly, under Muzzy, these acts, as alleged, fell within both the judicial phase and the general authority of the prosecutor, thereby triggering absolute immunity from civil suit.

3.2.4 Role of Levinsky v. Diamond and O’Connor v. Donovan

The Court reinforced this conclusion with Levinsky v. Diamond, 151 Vt. 178, 186–87 (1989), partially overruled on other grounds by Muzzy. In Levinsky, the Vermont Supreme Court held that a prosecutor’s:

Filing of criminal charges; and
Alleged direction of witnesses to make false statements at a bail hearing

were within the scope of his authority and thus shielded by absolute immunity. The conduct alleged in Levinsky is, if anything, more troubling than what Rivard alleged (directing false testimony at a bail hearing), yet the Court reaffirmed absolute immunity in that setting. By invoking Levinsky, the Rivard Court signaled continuity with a robust, function-based understanding of prosecutorial immunity.

The Court further cited O’Connor v. Donovan, 2012 VT 27, ¶ 27, 191 Vt. 412, for the proposition that a prosecutor’s motivations—no matter how hostile—do not erode immunity:

"That defendant was allegedly motivated by ill will or a malicious design to interfere with plaintiff's livelihood does not diminish the absolute immunity afforded conduct otherwise within the general scope of defendant's authority."

Applied here, even if Rivard’s allegations of retaliatory motive or cover-up were assumed true, they would not overcome the immunity bar.

3.2.5 Federal alignment: Imbler v. Pachtman

The Court’s citation to Imbler v. Pachtman, 424 U.S. 409, 427 (1976), positions Vermont’s doctrine within the mainstream of federal law. In Imbler, the U.S. Supreme Court held that state prosecutors enjoy absolute immunity from § 1983 suits for activities "intimately associated with the judicial phase of the criminal process," even though this:

"does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty."

Imbler recognized that a lesser immunity would chill zealous advocacy and open the floodgates to retaliatory litigation by criminal defendants, thereby "disserv[ing] the broader public interest." The Vermont Court’s reliance on Imbler confirms that its decision in Rivard is not an outlier but reflects a deliberate trade-off: the system prioritizes prosecutorial independence and finality, even at the cost of leaving some alleged wrongs without civil remedies.

3.3 Underlying Torts: Malicious Prosecution and Abuse of Process

Although the Supreme Court ultimately affirmed on immunity grounds, it is helpful to understand the underlying tort theories Rivard invoked and how the trial court initially evaluated them.

3.3.1 Malicious prosecution

Under Vermont law, a malicious prosecution claim generally requires the plaintiff to prove, among other elements:

The defendant instituted or continued a criminal proceeding against the plaintiff;
The proceeding ended in the plaintiff’s favor; and
The proceeding lacked probable cause and was instituted with malice.

The trial court found two independent defects:

Probable cause existed. The court concluded there was probable cause for the criminal trespass charge. Where probable cause is found—especially by a court in the criminal matter—malicious prosecution typically fails as a matter of law.
The criminal proceedings had not terminated. A malicious prosecution claim is premature until the underlying criminal matter is resolved favorably to the accused. At the time of the civil complaint, Rivard’s criminal case was still pending, so this element was unsatisfied.

The Supreme Court did not reiterate these elements in detail, because its immunity holding made it unnecessary to parse them further. Nevertheless, the trial court’s reasoning underscores that, even without immunity, Rivard’s malicious prosecution claim was structurally weak.

3.3.2 Abuse of process

An abuse-of-process claim generally targets the misuse of legal process after it has been issued—for example, using a valid subpoena or warrant for an improper ulterior purpose, or to extort a collateral advantage.

The trial court found Rivard failed to allege facts constituting an improper use of process: he complained about the decision to charge him and about the prosecutor’s representations in seeking release conditions, but not about the use of a specific legal process in a way foreign to its authorized purpose (such as using an arrest warrant solely to coerce unrelated concessions).

Again, the Supreme Court did not need to affirm on this ground; absolute immunity made the viability of the tort elements academic.

3.4 Discovery and Immunity

3.4.1 Rivard’s argument for pre-immunity discovery

On appeal, Rivard contended that the civil division should have allowed discovery before deciding whether the defendants were entitled to immunity. He appeared to argue that discovery would reveal "investigatory misdeeds" or "ultra vires" acts not shielded by prosecutorial immunity.

3.4.2 The Court’s response: Billado v. Appel

The Court flatly rejected this premise, quoting Billado v. Appel, 165 Vt. 482, 498 (1996), for the proposition that:

"discovery is not generally allowed until the immunity question is resolved."

This reflects a key functional feature of immunity doctrines: they are designed to be immunity from suit itself, not merely immunity from eventual liability. If discovery were routinely permitted before deciding immunity, the value of the immunity would be substantially undermined by the burdens of litigation.

3.4.3 Rule 56(d) and preservation

Rivard suggested that he had asked the trial court to allow discovery under Vermont Rule of Civil Procedure 56(d) (which permits a nonmovant to seek time to obtain discovery needed to oppose a summary judgment motion). The Supreme Court reviewed the record and concluded:

Rivard had not, in fact, requested Rule 56(d) relief in the civil division; and
His appellate argument on this point was therefore not preserved for review under Bull v. Pinkham Engineering Associates, 170 Vt. 450, 459 (2000), and V.R.A.P. 28(a)(4).

Moreover, the Court noted that Rule 56(d) applies to summary judgment motions, whereas this case involved a Rule 12(b)(6) motion to dismiss. The doctrinal mismatch further underscored the weakness of Rivard’s request.

3.5 Service, Personal Jurisdiction, and Futility

After his complaint was dismissed, Rivard moved to "vacate dismissal for lack of personal jurisdiction," asserting that although he named Attorney Congdon as a defendant, the sheriff never served him. He implied that this defect in service undermined the dismissal as to Congdon.

The trial court denied the motion on the ground that Rivard’s complaint did not state a claim against Congdon in his individual capacity, so service issues could not salvage the case. The Supreme Court agreed, noting that:

Even if service were defective, it would not cure the complaint’s substantive legal deficiencies; and
Rivard had not adequately briefed any argument showing why the alleged failure of service required reversal.

Citing In re Snyder Group, Inc., 2020 VT 15, ¶ 26 n.10, 212 Vt. 168, the Court declined to address an inadequately briefed argument. More broadly, this underscores that procedural objections (like service) cannot conjure a viable claim where the substantive law (here, absolute immunity) forecloses liability altogether.

3.6 Preliminary Injunctive Relief

Rivard also sought a preliminary injunction in the civil case to prevent the State’s Attorney from using certain criminal records in the pending criminal matter. The trial court denied that request, and the Supreme Court affirmed, reasoning that:

Once the underlying civil complaint was properly dismissed, there was no viable cause of action on which to base preliminary injunctive relief; and
A preliminary injunction is a provisional remedy that presupposes a pending, viable claim.

Thus, the denial of injunctive relief was effectively derivative of the dismissal on immunity grounds.

3.7 Rule 11, V.R.A.P. 25(d), and Fabricated Citations

Perhaps the most striking aspect of the entry order is the Court’s explicit admonition

"Slayton v. Willing, 2010 VT 56, ¶ 14, 188 Vt. 216, 4 A.3d 1155";
"Sorrell v. Wigginton, 154 Vt. 301, 303 (1990)";
"Morrison v. City of Montpelier, 2011 VT 9, ¶ 10";
"Thrall v. Rowan, 161 Vt. 451, 456 (1994)"; and
"EcoScience Corp. v. United States, 156 Vt. 185, 193 (1991)".

The Court observed that the Vermont Reports citations corresponded to entirely different opinions than those named, and that it was unable to identify any existing cases matching the citations provided. In other words, the authorities Rivard invoked did not exist as represented.

3.7.1 Rule 11 certification

The Court then quoted Vermont Rule of Civil Procedure 11(b)(2), which provides that by presenting a filing, a litigant certifies that, to the best of their knowledge, information, and belief, formed after a reasonable inquiry:

"the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law."

V.R.A.P. 25(d)(2) extends this Rule 11 certification to appellate filings, making explicit that when a party (attorney or self-represented) signs or submits a brief, they are making the same certification as in Rule 11(b).

3.7.2 Application to self-represented litigants

Citing Zorn v. Smith, 2011 VT 10, ¶ 22, 189 Vt. 219, the Court acknowledged that self-represented litigants "receive some leeway from the courts," but emphasized that they remain bound by:

Ordinary rules of procedure; and
The obligations of Rule 11, including potential sanctions for noncompliance.

The Court then issued a clear warning:

Plaintiff is warned that future conduct of this nature may result in sanctions.

It referenced V.R.A.P. 25(d)(3), which authorizes the Court, after notice and an opportunity to respond, to impose appropriate sanctions when Rule 11(b) is violated.

3.7.3 Significance of the warning

The Court did not impose sanctions in this case, but the warning is significant for several reasons:

It signals that the Vermont Supreme Court is actively monitoring the integrity of legal citations, including those submitted by self-represented parties.
It clarifies that pro se status does not license careless or fabricated legal authorities; a reasonable inquiry is required before citing law.
It aligns Vermont practice with a broader judicial trend in which courts are increasingly prepared to sanction parties (and lawyers) who submit non-existent cases or misrepresent the record and the law.

Practically, this means that any litigant—particularly those using secondary tools or automated systems to generate briefs—must independently verify that cases cited actually exist, stand for the cited propositions, and match the given citations. Failure to do so risks not only the loss of credibility but also formal sanctions.

3.8 Other Precedents and Authorities Cited

The entry order also relied on several additional authorities, each serving a distinct function:

Birchwood Land Co. v. Krizan, 2015 VT 37, 198 Vt. 420
– Provides the standard for a Rule 12(b)(6) dismissal—no conceivable facts could entitle plaintiff to relief.
Billado v. Appel, 165 Vt. 482 (1996)
– Confirms that discovery is generally withheld until immunity issues are resolved, emphasizing immunity as a shield from the burdens of litigation itself.
Bull v. Pinkham Engineering Associates, 170 Vt. 450 (2000)
– Reiterates Vermont’s preservation rule: contentions not raised or fairly presented in the trial court are not preserved for appellate review.
V.R.A.P. 28(a)(4)
– Requires appellants’ arguments to state the issues presented, how they were preserved, and the supporting reasons and authorities, illustrating the procedural rigor expected of appellate briefs.
In re Snyder Group, Inc., 2020 VT 15, 212 Vt. 168
– Cited for the practice of declining to address inadequately briefed arguments.
24 V.S.A. § 361(a)
– Statutory source of a state’s attorney’s authority to prosecute offenses and to represent the State in the courts, central to the immunity analysis.

4. Simplifying Key Legal Concepts

4.1 Absolute Prosecutorial Immunity

What it is: A complete shield from civil liability for damages claims when a prosecutor is performing traditional prosecutorial functions (e.g., deciding whether to bring charges, presenting the case in court, advocating conditions of release).

Key features:

Applies to actions "intimately associated" with the judicial phase of a criminal case.
Does not depend on good faith; it remains in place even if the prosecutor allegedly acts maliciously or dishonestly.
Rests on the policy judgment that prosecutors must be able to act fearlessly in enforcing the law, without being chilled by fear of personal civil liability.

4.2 Malicious Prosecution

A civil claim alleging wrongful initiation or continuation of a criminal case. Typical elements include:

The defendant initiated or continued a criminal proceeding against the plaintiff;
The proceeding ended in the plaintiff’s favor;
Lack of probable cause; and
Malice (an improper purpose, such as harassment or retaliation).

If any essential element is missing—especially a favorable termination or lack of probable cause—the claim fails.

4.3 Abuse of Process

Abuse of process focuses on the misuse of legal procedures after they are issued, not merely the decision to begin a case. For example, using a warrant or subpoena to extort something unrelated to the lawsuit can be abuse of process.

Simply filing a criminal charge, or seeking routine release conditions, even for allegedly improper reasons, does not automatically constitute abuse of process unless the legal process itself is used in a way fundamentally different from its intended purpose.

4.4 Rule 11 (V.R.C.P. 11) and V.R.A.P. 25(d)

Rule 11 requires that every signed court filing be based on:

A reasonable inquiry into the facts; and
A reasonable inquiry into the law, meaning the legal arguments are warranted by existing law or a nonfrivolous argument for change.

V.R.A.P. 25(d) extends these obligations to appellate filings. Violations can result in sanctions, which may include monetary penalties, orders to pay the other side’s fees, or other measures the court deems appropriate.

4.5 Preservation of Issues for Appeal

To "preserve" an issue means to raise it sufficiently and clearly in the trial court so that the trial judge has an opportunity to rule on it. Issues raised for the first time on appeal are generally not considered. Vermont courts enforce this rule strictly, as evident from the Court’s reliance on Bull v. Pinkham and V.R.A.P. 28(a)(4) in Rivard.

5. Potential Impact and Broader Significance

Although this entry order is expressly "not to be considered as precedent before any tribunal" (given its three-justice panel status), it nonetheless has practical and instructive significance.

5.1 Civil suits against prosecutors in Vermont

The decision underscores that civil claims against Vermont prosecutors based on routine prosecutorial conduct—charging decisions, bail advocacy, handling of evidence in court—face a formidable barrier in the form of absolute immunity. Even claims framed as "abuse of process" or "malicious prosecution" cannot circumvent this doctrine when the challenged acts fall squarely within the prosecutor’s adjudicative role.

Future litigants considering similar suits against state’s attorneys or deputy state’s attorneys should recognize that:

They must identify conduct outside the judicial phase or beyond the prosecutor’s general authority (e.g., certain investigative or administrative acts) to even begin to avoid immunity; and
Even then, courts approach such claims cautiously, given the strong policy interests in protecting prosecutorial functions.

5.2 Discovery and immunity practice

By reaffirming that discovery "is not generally allowed until the immunity question is resolved," the Court reinforces a procedural sequence in Vermont civil practice:

Courts should address immunity issues at the earliest possible stage (often on a motion to dismiss).
Only if immunity is rejected or limited should discovery ordinarily proceed.

This sequence protects public officials from the burdens of litigation where the law clearly confers immunity.

5.3 Expectations for self-represented litigants

The Court’s Rule 11 warning sends a clear message to pro se litigants:

Leniency in procedural form does not extend to fabricating or misrepresenting legal authorities.
Self-represented parties must undertake a "reasonable inquiry"—meaning they cannot simply cite cases by name and citation without checking that they exist and are accurately described.
Future violations may trigger sanctions, making this a cautionary marker for all self-represented litigants in Vermont’s appellate courts.

In an era where readily available tools (including AI-based systems) can suggest case citations, this warning is especially important: litigants remain responsible for independently verifying all citations before submitting them to the Court.

5.4 Integrity of the appellate process

The combination of:

Enforcing preservation rules (Bull, V.R.A.P. 28(a)(4));
Rejecting inadequately briefed arguments (Snyder Group); and
Invoking Rule 11 against unfounded legal contentions

illustrates the Vermont Supreme Court’s commitment to maintaining the integrity and efficiency of the appellate process. Even in a nonprecedential entry order, the Court took the opportunity to articulate clear expectations for litigants—especially regarding citation accuracy, argument structure, and record-based preservation.

6. Conclusion

Rivard v. Windham State’s Attorney stands as a concise but instructive reaffirmation of two central points in Vermont law:

Absolute prosecutorial immunity remains robust and expansive.
Actions such as charging decisions, advocacy at bail and conditions-of-release hearings, and in-court handling of evidence are shielded from civil liability, even when alleged to have been undertaken with improper motives or in bad faith. Vermont’s doctrine, rooted in Muzzy, Levinsky, and consonant with Imbler, prioritizes prosecutorial independence over civil redress in these contexts.
Rule 11’s obligations apply fully to self-represented litigants.
The Court’s pointed reaction to Rivard’s use of nonexistent or mismatched case citations underscores that pro se parties must adhere to the same standards of candor and due diligence as attorneys. Future similar conduct, the Court warned, may result in sanctions.

Though not a binding precedent, the entry order functions as a practical guidepost. It illustrates how Vermont courts will handle civil challenges to prosecutorial conduct, how they sequence immunity and discovery, and how they expect litigants—represented or not—to comport themselves in appellate practice. For lawyers and self-represented parties alike, the decision is a reminder that strong procedural and doctrinal filters govern both civil accountability for prosecutorial acts and the quality and integrity of submissions to the state’s highest court.