Orost v. Gerhard

VERMONT SUPERIOR COURT CIVIL DIVISION
Windsor Unit Case No. 25-CV-03945
12 The Green
Woodstock VT 05091
802-457-2121
www.vermontjudiciary.org
Jay Orost v. A. GERHARD

ENTRY REGARDING MOTION
Title: Motion to Dismiss (Motion: 2)
Filer: Sara-Ellen M. A. Moran, Esq.
Filed Date: November 18, 2025

Decision on Ms. Gerhard’s Motion (#2) to Dismiss

Lamoille County State’s Attorney Aliena Gerhard prosecuted a criminal case (which has
been affirmed) to verdict against Defendant Jay Orost, represents the State in a related post-
conviction relief action brought by Mr. Orost, and has initiated another criminal case against
him. The latter two cases apparently have not yet reached a final judgment. In this case, Mr.
Orost, pro se, seeks an award of $500,000 in compensatory damages as well as an additional
award of punitive damages based on his view of Ms. Gerhard’s conduct in these cases. Ms.
Gerhard has filed a Rule 12(b)(6) motion to dismiss, principally because she is protected from
these claims by the doctrine of absolute immunity.

A motion to dismiss for failure to state a claim faces a high bar. The Vermont Supreme
Court has described the familiar standard for Rule 12(b)(6) motions to dismiss for failure to state
a claim as follows:

“A motion to dismiss . . . is not favored and rarely granted.” This is especially
true “when the asserted theory of liability is novel or extreme,” as such cases
“should be explored in the light of facts as developed by the evidence, and,
generally, not dismissed before trial because of the mere novelty of the
allegations.” In reviewing a motion to dismiss, we consider whether, taking all of
the nonmoving party’s factual allegations as true, “‘it appears beyond doubt’ that
there exist no facts or circumstances that would entitle the plaintiff to relief.” We
treat all reasonable inferences from the complaint as true, and we assume that the
movant’s contravening assertions are false.

Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, 181 Vt. 309 (citations omitted); see also
5B A. Benjamin Spencer, et al., Fed. Prac. & Proc. Civ. § 1357 (4th ed.) (“Ultimately, the burden
is on the moving party to prove that no legally cognizable claim for relief exists.”).1

1 In seeking dismissal, Ms. Gerhard improperly relies on the heightened plausibility standard that applies to Rule

12(b)(6) motions in federal court. Vermont does not follow that federal standard. See Colby v. Umbrella, Inc., 2008
The court summarizes the allegations of the complaint briefly as they are conclusory in
the extreme throughout. See Vitale v. Bellows Falls Union High Sch., 2023 VT 15, ¶ 28, 217 Vt.
611 (“The purpose of a Rule 12(b)(6) motion is to ensure the pleading ‘gives fair notice of the
claim and the grounds upon which it rests.’ However, we are not required to accept as true
‘conclusory allegations or legal conclusions masquerading as factual conclusions.’” (citations
omitted)).

Mr. Orost alleges that in prosecuting the cases against him (or in defending the PCR suit),
Ms. Gerhard elicited false testimony from a witness, failed to turn over exculpatory evidence to
present it at trial, made improper arguments during sentencing, pursued charges that have no
evidentiary support, and improperly sought to saddle him with an excessive sentence.2 He
asserts that this conduct amounts to bigotry, discrimination on the bases of age and disability, a
hate crime, false imprisonment, intentional infliction of emotional distress, malicious
prosecution, and elder abuse.3

As a general matter, the court notes: “The rationale for affording prosecutors absolute
immunity is to protect the independence of prosecutorial judgment and to avoid harassment of
prosecutors with unfounded litigation. In addition, as with judicial immunity, it has been noted
that a criminal defendant has the protection of post-trial procedures, such as appellate review, to
ensure that the outcome of a trial is just and does not need the additional protection afforded by
an action for damages.” 2 Civ. Actions Against State & Loc. Gov’t § 11:14 (footnote omitted);
Kassa v. Fulton Cnty., Georgia, 40 F.4th 1289, 1292 (11th Cir. 2022) (“[A]bsolute prosecutorial
immunity ‘is not grounded in any special esteem for those who perform these functions, and
certainly not from a desire to shield abuses of office, but because any lesser degree of immunity
could impair the judicial process itself.’” (citation omitted)).

This is precisely the sort of suit that the doctrine protects against. As for state law claims,
state’s attorneys are protected by the doctrine of absolute immunity to the same extent as other
“high executive officers.” O’Connor v. Donovan, 2012 VT 27, ¶ 21, 191 Vt. 412. That is, if the
“acts complained of fall within the general scope of defendant’s authority,” the defendant state’s
attorney will be absolutely immune from suit. Id., 2012 VT 27, ¶ 22; see also Levinsky v.
Diamond, 151 Vt. 178, 185 (1989) (“When available, absolute immunity applies to any and all
acts performed within the individual’s authority.); Polidor v. Mahady, 130 Vt. 173, 174 (1972)
(“[As long as] performance is within his general authority, his motive for acting is not subject to
inquiry in a private suit.”).

VT 20, ¶ 5 n.1, 184 Vt. 1; Bock v. Gold, 2008 VT 81, ¶ 5 n.*, 184 Vt. 575. This error has no impact whatsoever on
this decision.
2 Among other convictions, Mr. Orost is serving time for sexually assaulting his own daughter for many years. State

v. Orost, 2025 VT 15, ¶ 2 (Vt. Mar. 28, 2025).
3 Ms. Gerhard interprets Mr. Orost’s isolated references to a hate crime and elder abuse as attempts at charging her

with crimes in this case. The court does not. Nowhere does Mr. Orost seek criminal penalties against Ms. Gerhard
in this case. Those references appear at most to be rhetorical flourishes regarding his discrimination claim(s).
Everything that Mr. Orost complains of in this case eliciting testimony from a witness,
determining what evidence to produce in discovery or to present at trial, making arguments at
sentencing, and filing and pursuing charges against a defendant is easily within the general
authority of Vermont prosecutors and thus protected by absolute immunity.

To the extent that Mr. Orost may be attempting to bring federal claims, the test is slightly
different, but the outcome assuredly is not. Federal law distinguishes between the prosecutor's
function as an advocate (subject to absolute immunity) and other investigatory or administrative
functions (subject to qualified immunity). See Giraldo v. Kessler, 694 F.3d 161, 165-66 (2d Cir.
2012). Again, when absolute immunity applies, "virtually all acts, regardless of motivation,
associated with [the prosecutor's] function as an advocate" are protected. /d. at 165 (citation
omitted).

There is no cogent allegation in the complaint to the effect that Ms. Gerhard ever did
something objectionable outside of her function as an advocate. She is entitled to absolute
immunity as to any federal claims in this case.

Because Ms. Gerhard is immune from this suit in its entirely, there is no need to address
any other arguments raised in the dismissal motion.

Order

For the foregoing reasons, Ms. Gerhard's motion to dismiss is Granted.

Dated December 18, 2025.

Electronically signed pursuant to V REF 9{d).

Kerry A. McDonald-Cady, Superior Court Judge

Vermont Superior Court
Filed 12/19/25
Windsor Unit