Scanlon v. State

Termont Superior Court
Filed 01/12/26
Washington Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 24-CV-02084
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org

Kip Scanlon v. State of Vermont

ENTRY ORDER
(Reconsideration of Motion to Dismiss)!

The present action concerns what liability the State may have to an individual held
without bail following a remote arraignment.

Background Facts
To put this matter plainly, Plaintiff Kip Scanlon believes deeply that he was wronged by
one or more state actors during a June 1, 2022 hearing in the criminal division concerning his

arraignment in one docket (State v. Scanlon, 22-CR-4641) and status in another (State v.
Scanlon, 27-9-20 Frer). The facts from Mr. Scanlon's pleadings as well as the criminal docket in
22-CR-4641, of which the Court takes judicial notice, show the following:
Mr. Scanlon was arrested in Winooski, Vermont on May 31, 2022 on charges of

aggravated assault (13 V.S.A. § 1024(a)(1)); interference with access to emergency services (13
V.S.A. § 1031); and criminal threatening (13 V.S.A. § 1702)(a)). At the time of his arrest the

1
The Court initially granted the State's Motion in April of 2024 as unopposed. Plaintiff indicated that he
sought to oppose the motion and filed an appeal. The State agreed to remand the decision to allow
Plaintiff time and opportunity to file an opposition. The Court conducted a hearing in this matter on
November 13, 2025, and Plaintiff represented that he was satisfied with his subsequent filings and felt
that they stated his opposition to the State's motion. From that process, the Court has taken the State's
Motion to Dismiss back into consideration on the merits and makes the following ruling on the merits of
the State's position.
2
J
See Doe v. Camacho, 2024 VT 72, 2 n. (a trial court may take judicial notice under V.R.E. 201(b) of
1

facts not in reasonable dispute). Neither Mr. Scanlon, nor the State generally dispute what occurred in
Docket No. 22-CR-4641. Rather the dispute lies in what Mr. Scanlon understood was occurring at
various points, and the importance of what did or did not happen. As such, the Court finds that it may rely
on the record from Docket No. 22-CR-4641 to flesh out the facts of what occurred and whether Mr.
Scanlon has made out a claim as a matter of law that can survive the State's Rule 12(b)(6) Motion to
Dismiss.
Chittenden County State’s Attorney sought to have him held without bail pursuant to 13 V.S.A. §
7553a (permitting a court to hold a defendant without bail when the charges involve a felony act
of violence and the risk of violence to another cannot be addressed by conditions of release).
As part of Mr. Scanlon’s arrest and initial pre-arraignment processing, the Court ordered
Mr. Scanlon held without bail consistent with the State’s Attorney’s request. Mr. Scanlon was
transferred to the Northwest Correctional Facility until his arraignment could be held. On June
1, 2022, the Court found probable cause based on the State’s Attorney’s Information and
supporting affidavit. On the same day, Mr. Scanlon was arraigned remotely. This means that he
was put into a secure room in the correctional facility where he could hear and see the judge and
attorneys on a screen and where they could see him. Mr. Scanlon’s arraignment is detailed in the
transcript attached to his original complaint.
At the arraignment, Mr. Scanlon was represented by Stacie Johnson, an attorney with the
Chittenden Public Defender’s Office. Ms. Johnson waived Mr. Scanlon’s right to be arraigned in
person. She also waived his Rule 5 rights including the requirements that the Judicial Officer
read the charge to the Defendant and notify him of the rights to retain and consult counsel, to
remain silent, the general circumstances to secure pre-trial release, the right to discovery, and
collateral consequences. V.R.Cr.P. 5(d). Attorney Johnson also waived the so-called 24-hour
rule under Rule 5(g) that gives a defendant no less than 24-hours to enter a plea to the charges
after they are read. V.R.C.P. 5(g). Attorney Johnson then entered a not guilty plea to all three
charges.
At that point, the State stated its position that Mr. Scanlon should be held without bail.
Attorney Johnson did not contest the motion, but she requested that the Court set the matter for a
bail hearing and allow Mr. Scanlon an opportunity to meet with his then-current attorney Kathy
Strahm.
The Court accepted the waivers offered by Attorney Johnson, entered the not-guilty pleas
and continued the order to hold Mr. Scanlon without bail as Attorney Johnson had not provided
any grounds to contest the motion.
In his complaint, Mr. Scanlon contends that he did not approve of any of the waivers
offered by Attorney Johnson, did not authorize her to make the arguments she made, and was
generally confused about the process.
Approximately 19 days after this arraignment, Attorney Strahm, on Mr. Scanlon’s behalf,
struck an agreement with the State’s Attorney to lift the Hold with Bail Order that included seven
conditions of release. The Court set the matter for a status conference on June 21, 2022. From
the record, the Court agreed to these conditions, and they were adopted. The hold without bail
condition was dropped. Instead, Mr. Scanlon’s conditions of release included: Condition 1
(come to court when you are told), Condition 2 (keep your attorney and the court clerk apprised
of any changes to your contact information), Condition 4 (be released into the custody of a
Responsible Adult), Condition 11 (24-hour curfew), Condition 13 (do not possess firearms or
weapons), Condition 14 (no contact with A.B.), and Condition 31 (stay 500 feet away from
A.B.). No bail was attached.
Mr. Scanlon was not released at that time due to the lack of a Condition 4 Responsible
Adult, but the Court ruled that a hearing would be set as soon as Mr. Scanlon had such a person
ready to review. On July 26, 2022, Attorney Strahm offered Mr. Scanlon’s friend, Dennis Duffy,
as a Condition 4 person for Mr. Scanlon. The Court had scheduled a hearing on July 28, 2022,
and the record indicates that Mr. Duffy was considered. At the hearing, the State’s Attorney
objected to Mr. Duffy. The Court agreed that Mr. Duffy was not appropriate as a Condition 4
Responsible Adult and denied the request. Mr. Scanlon remained incarcerated for want of a
Condition 4 person.
In August 2022, Mr. Scanlon moved for new counsel. In September, Attorney Strahm
filed a motion for the Court to reconsider Mr. Duffy as a Condition 4 person. Attorney Strahm
also moved to withdraw as counsel. The Court granted this motion, and Attorney Michael
Straub entered an appearance as counsel for Mr. Scanlon. In September, Mr. Scanlon also
sought to dismiss the charges against him based on the issues that he has raised with the June 1,
2022 arraignment.
In December, the Court ruled on the motion to reconsider Mr. Duffy as a Condition 4
Responsible Adult. The Court denied the motion, but it modified the conditions of release to
include a bail amount of $1,500 and directed the Department of Corrections to determine if Mr.
Duffy’s residence would be suitable for electronic monitoring. Mr. Scanlon appealed this
decision to the Vermont Supreme Court pursuant to 13 V.S.A. § 7556(b). In January 2023, the
Vermont Supreme Court affirmed the Court’s denial of Mr. Duffy as a Condition 4 person and
affirmed the imposition of $1,500 bail. Mr. Scanlon remained incarcerated.
During this time, Mr. Scanlon and his counsel re-filed the motion to dismiss, and the
Court set a hearing on January 30, 2023.3 On February 1, 2023, the Court issued a decision
finding no error in the arraignment procedure and found no prejudice to Mr. Scanlon. The Court
declined to dismiss the case.
As the case proceeded, Mr. Scanlon took over his defense, and Mr. Straub became stand-
by counsel. Mr. Scanlon continued to file paperwork with the Court challenging his arraignment
and resulting pre-trial incarceration.4 The case also continued to move slowly through discovery
with multiple motions for protective orders and motions to compel during the discovery process.
The Court revisited the issue of Mr. Scanlon’s arraignment on May 17, 2023 when it denied
several of his motions seeking reconsideration of the Court’s denial of his motion to dismiss.
The Court did the same on September 1, 2023 when it denied Mr. Scanlon’s further filings that
recast his motion to dismiss as a Constitutional Challenge to Jurisdictional Standing. In each
case, the Court found no issue with the June 1, 2022 arraignment and no evidence of prejudice to
Mr. Scanlon. Mr. Scanlon sought to file interlocutory appeals from these denials, but they were
denied at both the trial court level and the Vermont Supreme Court level.
In December 2023, the State dismissed the charges against Mr. Scanlon, and he was
released.5
The Present Claims
Mr. Scanlon has brought the present complaint seeking compensation for his loss of
liberty from his arrest on May 31, 2022 until his release following the State’s dismissal of the
charges pending against him on December 14, 2023. Mr. Scanlon’s complaint and amended
complaint cite to the alleged issues with the June 1, 2022 arraignment as the basis for this claim,
but Mr. Scanlon fails to cite to a statutory or constitutional basis for monetary compensation.

3 Mr. Scanlon also filed an extraordinary appeal under V.R.A.P. 21 to challenge his arraignment. The
Vermont Supreme Court denied this appeal on January 23, 2023 on the grounds that it did not comply
with the standards of Rule 21 or explain why relief from the criminal division was not available.
4 Mr. Scanlon filed over a dozen motions or letters to the Court and other parties stating and re-stating his

belief the June 1st arraignment had been improper, and that his continued pre-trial incarceration was
improper. The trial court appears, as summarized in this section, to have addressed these filings in
batches, providing rulings and clarity where necessary.
5 This event appears to have occurred a few months after Mr. Scanlon reached a plea agreement on

several other pending dockets. See State v. Scanlon, Dockets 20-CR-2405, 20-CR-2016, 20-CR-2153,
20-CR-2154, and 20-CR-2134.
Mr. Scanlon’s complaint fails to state a claim on which relief may be granted for three critical
reasons.
I. Plaintiff Fails to Make Out a Claim on which Damages Can Be Awarded
As a preliminary matter, Mr. Scanlon has only named the State of Vermont as a
Defendant. While he mentions other state officers and actors, he has not sought to name or join
them to the present lawsuit. As such, the Court may not consider his claims under 42 U.S.C. §
1983. Bock v. Gold, 2008 VT 81, ¶ 9 (affirming that 1983 claims for monetary damages against
the state or officers in the official capacity must be dismissed). In lieu of a 1983 claim, Plaintiff
does not offer any particular constitutional claim on which money damages may be based. For
example, 13 V.S.A. § 5572 permits individuals to seek compensation from the state when they
are wrongfully convicted, imprisoned, and later exonerated. While this statute does not apply in
the present case, it is an example of where the legislature has created a claim for individual to
seek compensation from the State for wrongful process.6
The problem is that Mr. Scanlon has made out general claims that his Rule 5 rights were
violated by the June 1, 2022 arraignment, but he has not brought a 1983 claim in furtherance of
any federal constitutional rights, and he has not shown what specific state constitutional rights
were violated, and more importantly, whether any of those constitutional rights are self-
executing. See In re Town Highway No. 20, 2012 VT 17, ¶¶ 29–38 (discussing whether a
constitutional provision creates a substantially clear rule on which monetary damages may be
premised). To date, the Court is unaware of any claim for monetary damages that has been
successfully asserted against the State for conducting a defective arraignment in violation of the
provisions of V.R.Cr.P. 5.7

6 Plaintiff cites the Vermont Tort Claims Act in his original pleading but does not continue it in his

amended complaint. Even if the Court were to consider such a claim, it is not applicable as the claim can
only be brought for causes of action “comparable to a recognized cause of action against a private
person.” Sutton v. Vermont Regional Center, 2019 VT 71A, ¶ 36 (quoting Sabia v. State, 164 Vt. 293,
298 (1995)). Given that Mr. Scanlon’s claims concern an allegedly improper criminal arraignment, the
Court finds no private analog that would allow the claim to proceed under the Tort Claims Act.
7 There are a number of cases where parties have asserted a claim for monetary damages for false arrest

based on an improper delay in conducting an arraignment. See WR Habeeb, Delay in Taking before
Magistrate or Denial of Opportunity to Give Bail as Supporting Action for False Imprisonment, 98 A.L.R.2d
966 (1964) (collecting cases where courts have considered monetary damages where an arraignment is
delayed).
Without even basic pleading, the Court is left to speculate about the nature of Plaintiff’s
claim and the basis for relief sought. Plaintiff has an obligation to make out the basic claims and
legal rights on which relief is premised. Mullinnex v. Menard, 2020 VT 33, ¶ 10. This threshold
is exceedingly low, but it still requires Plaintiff to set forth the facts and legal claims on which
the request for relief is premised. V.R.C.P. 8)(a); see also Bock, 2008 VT 81, at ¶ 4. For this
reason, the Court finds that Plaintiff has failed to state a claim on which relief may be granted.
V.R.C.P. 12(b)(6).
II. Plaintiff Fails to Link the Events of June 1, 2022 to His Extended Incarceration
Plaintiff’s claim also fails on its face to connect any of the alleged defects in his
arraignment with his on-going incarceration, which he cites as the primary source of his injury.
The facts of this case demonstrate that Mr. Scanlon was arrested and held pursuant to a pre-
arraignment determination that he be held without bail that was made on May 31, 2022. At the
June 1, 2022 hearing, Attorney Johnson entered a plea of not-guilty on Mr. Scanlon’s behalf.
This plea preserved all of Mr. Scanlon’s rights to challenge the sufficiency of the charges and
assert any defense at trial. While Attorney Johnson did waive certain Rule 5 rights, these are
rights primarily intended to make the defendant aware of the charges facing him, the right to
challenge the probable cause of the charges, the right to counsel, and the right to seek discovery
and develop an evidentiary challenge to the charges. State v. Bean, 163 Vt. 457, 463 (1995).
These are, as the reporter’s notes to Rule 5 put it, preliminary matters. V.R.Cr.P. 5, rptr. n.
Most importantly, nearly every issue at the arraignment can be challenged again. This
includes probable cause through a motion to dismiss under Rule 12 and conditions of release
through 13 V.S.A. § 7554(d).
Therefore, the remedy in most cases where there is an issue with Rule 5 procedure is to
simply address the issue. In this case, there is ample evidence that Mr. Scanlon sought and was
given the opportunity to challenge nearly every facet of his criminal prosecution.
Mr. Scanlon’s complaint and argument presume that because there were defects in his
arraignment, the arraignment was not effective, and he should be treated as if he was never
arraigned. This is a leap in logic that is not supported by Rule 5, any caselaw concerning
arraignments, or even the record. Mr. Scanlon is making the error of confusing void and
voidable procedure. As the Vermont Supreme Court has noted, voidable process is that where
the defect is capable of being amended. Howe v. Libson Sav. Bank & Trust Co., 111 Vt. 201,
208 (1940). In such cases, the process is valid until it is attacked, and then amendment is
allowed to repair the defect. Id. Void process arises when a statute prohibits violating it or when
the process is complete and not able to be amended. Id. at 209. Given the nature of Rule 5 rights
and the continuing ability, in most cases, like the present one, for a defendant to continue his or
her challenges and on-going right to amend and assert, the defects alleged by Plaintiff are at best
voidable in that if they had been proven, they could have been fixed, and their alleged existence
does not alter the fact that Mr. Scanlon was arraigned.
Finally, Mr. Scanlon’s allegation that he was improperly held as a result of the June 1,
2022 arraignment is belied by the fact that his counsel sought and obtained conditions of release
within three weeks of the arraignment. Mr. Scanlon was originally held without bail as a result
of the State’s unopposed motion. If one of the errors that Mr. Scanlon alleges is that Attorney
Johnson failed to assert a timely opposition to this motion, it was effectively cured when
Attorney Strahm got the State’s Attorney to drop its position in exchange for the conditions of
release. The fact that Mr. Scanlon was unable to obtain an acceptable Condition 4 person is a
distinct matter and unrelated to the arraignment. In this respect, even the single most lasting
impact from the June 1, 2022 arraignment was quickly modified and altered by subsequent
process.
In total, the Court finds that there are no available facts that would support a claim of
harm resulting from the June 1, 2022 arraignment, and Mr. Scanlon’s continued pre-trial
incarceration was due to matters outside the arraignment.
For these reasons, as well, the State’s Motion to Dismiss is appropriate as there is no
claim that Mr. Scanlon can sustain for damages as he was not injured, did not lose any
substantive defense or rights in his criminal case, and was not improperly held as a result of the
June 1, 2022 arraignment.
III. The State and State Actors Are Entitled to Sovereign Immunity.
Even if Mr. Scanlon could make out a claim and had the factual basis to assert it, the
Defendant State of Vermont and its officers are entitled to immunity. As noted by the State in its
motion, any and all of the judicial officers involved in Mr. Scanlon’s case are entitled to absolute
immunity from any liability claims arising against them from their official actions. Politi v.
Tyler, 170 Vt. 428, 431 (2000). This immunity extends from judges to clerks and court staff in
the performance of their judicial functions. Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997).
It also extends to the State of Vermont. Czechorowski v. State, 2005 VT 40, ¶ 29.

Attorney Johnson is also entitled to qualified immunity on two bases. First, pursuant to
13 V.S.A. § 5241(b), no ineffective assistance of counsel claim can be filed unless and until the
plaintiff has prevailed in a claim for postconviction relief based on ineffective assistance of
counsel. This provision extends to any public defender providing representation under contract
or on an ad hoc basis. In this case, Mr. Scanlon has not sought or received such a determination.
Second, Attorney Johnson is entitled to qualified immunity because she was acting in the
course of her employment, acting in good faith, and performing discretionary acts.
Czechorowski v. State, 2005 VT 40, ¶ 29. There is no evidence that Attorney Johnson was acting
against or in bad faith toward Mr. Scanlon. None of her actions resulted in a loss of rights to Mr.
Scanlon nor did any prevent him from seeking to challenge or revise any of the terms,
conditions, and defenses that were addressed at the arraignment. Harlow v. Fitzgerald, 457 U.S.
800, 817–18 (1996) (requiring evidence of some clear violation of established statutory or
constitutional rights of which the official should reasonably have known). Attorney Johnson’s
actions, as legal judgments, were discretionary by their nature as they involved judgment,
deliberation, and as some have characterized it, “the right to be wrong.” Libercent v. Aldrich,
149 Vt. 76, 82 (1987) (noting that discretionary acts encompass judgment decisions where the
maker may have to weigh and balance a variety of factors and policies that may, in fact, prove to
be wrong).
For these reasons, the Court concludes that Attorney Johnson’s actions at the June 1,
2022 arraignment fall under qualified immunity, and by extension any liability to the State from
Attorney Johnson’s actions is also covered by immunity.
Finally, the State is generally entitled to sovereign immunity, unless it has expressly
waived it. Stocker v. State, 2021 VT 71, ¶ 21. Plaintiff has not suggested any basis to conclude
that the State has made such a waiver, and none of his allegations fit within any of the statutory
or common law exceptions. As such, the Court finds no basis to conclude that the State has
waived any sovereign immunity in this matter.
ORDER
Based on the foregoing, the State’s Motion to Dismiss based on a failure to state a claim
is Granted. V.R.C.P. 12(b)(6). The present matter is Dismissed. This Order shall constitute a
final judgment, and each side shall bear its own costs and expenses.

Electronically signed on 1/8/2026 5:34 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge