Background
In 2025, Jeffrey Rivard sued the Windham County State’s Attorney’s Office and Deputy State’s Attorney Johns Congdon, alleging abuse of legal process and malicious prosecution arising from his prosecution for violating a no-trespass order issued by his child’s school. Defendants moved to dismiss on grounds of absolute and sovereign immunity and failure to state a claim. The trial court granted the motion, finding no viable claim and that defendants were immune. The Vermont Supreme Court affirmed the dismissal in December 2025, holding that the facts as alleged demonstrated defendants were absolutely immune from suit. Rivard v. Windham State Att’y, No. 25-AP-305, 2025 WL 3498177 (Vt. Dec. 5, 2025) (unpub. mem.).
In January 2026, Rivard moved for relief from judgment under Vermont Rule of Civil Procedure 60(b), asserting that the underlying criminal charges had since been dismissed and that he had settled a related civil action against the school. He characterized the dismissal as newly discovered evidence and accused Deputy State’s Attorney Congdon of withholding exculpatory evidence to prevent full adjudication of the immunity issue, which he characterized as fraud. In the alternative, he sought relief under Rule 60(b)(6) to prevent injustice. The trial court denied the motion, finding that the dismissal of criminal charges did not cure the prior pleading deficiencies and that the motion failed to address defendants’ immunity.
Rivard moved for reconsideration, arguing that the alleged misconduct — including altering documents, failing to verify whether the school was public or private, withholding exculpatory evidence, and relying on a defective no-trespass order — constituted pre-charge investigative acts outside the scope of prosecutorial immunity. The trial court denied reconsideration, concluding those acts fell within core prosecutorial functions shielded by absolute immunity. Rivard appealed.
The Court’s Holding
The Vermont Supreme Court affirmed the denial of Rule 60(b) relief, holding that the trial court acted within its discretion. The court reiterated that under Vermont law, prosecutors enjoy absolute immunity from state-law civil claims for all acts within the general scope of their authority. Relying on O’Connor v. Donovan, 2012 VT 27, ¶¶ 20–22, 191 Vt. 412, and Levinsky v. Diamond, 151 Vt. 178, 186–87 (1989), the court concluded that every act Rivard alleged — including charging decisions, evidentiary handling, and pre-charge investigation — related to defendants’ decision to file and prosecute criminal charges and was therefore absolutely immune from suit.
Rivard argued that absolute immunity should extend only to “advocatory functions” and not to investigative conduct, citing the federal functional-analysis framework established in Imbler v. Pachtman, 424 U.S. 409 (1976), and Buckley v. Fitzsimmons, 509 U.S. 259 (1993). The court rejected this argument, explaining that Vermont has not adopted the federal functional-analysis approach for state-law claims against government officials, and reaffirmed Levinsky‘s broader rule. The court added that even under the federal approach, the alleged acts were intimately associated with the core prosecutorial function and would warrant immunity, citing Peay v. Ajello, 470 F.3d 65 (2d Cir. 2006).
Because absolute immunity disposed of the case entirely, the court declined to address whether the newly discovered facts were sufficient to state claims for malicious prosecution or abuse of legal process, and denied as moot Rivard’s motion to take judicial notice of related documents.
Key Takeaways
- Vermont’s absolute prosecutorial immunity for state-law claims extends to all acts within the general scope of a prosecutor’s authority — it is not limited to courtroom advocacy or acts closely tied to litigation, as the federal functional-analysis test would require.
- A Rule 60(b) motion premised on newly discovered evidence (here, post-dismissal of criminal charges) will not revive a suit if the underlying immunity bar remains intact regardless of the new facts.
- Allegations of pre-charge investigative misconduct — including altering documents, withholding exculpatory evidence, and relying on a defective no-trespass order — do not escape absolute prosecutorial immunity under Vermont law when those acts are tied to the decision to file and prosecute charges.
- Vermont courts have expressly declined to follow the federal Imbler/Buckley distinction between investigative and advocatory functions in state tort actions against prosecutors.
Why It Matters
This decision reinforces the breadth of prosecutorial immunity under Vermont law and clarifies that plaintiffs cannot use Rule 60(b) motions as a second bite at the apple when the immunity defense was fully adjudicated in prior proceedings. For civil litigants alleging prosecutorial misconduct, Vermont’s rejection of the federal investigative/advocacy distinction makes it substantially harder to bring state-law tort claims than in federal court or in states that apply Imbler‘s narrower framework.
The case also illustrates the limited utility of post-judgment motions when subsequent developments — such as a favorable termination of criminal proceedings — do not address the threshold immunity question. Practitioners should note that in Vermont, securing a dismissal of underlying criminal charges, or even settling related civil litigation, will not reopen a dismissed state tort action against a prosecutor if the immunity analysis remains unchanged.