Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-350

                                        MARCH TERM, 2012

 Keith Russell Judd                                    }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Washington Unit,
    v.                                                 }    Civil Division
                                                       }
 State of Vermont, Secretary of State                  }    DOCKET NO. 279-5-11 Wncv

                                                            Trial Judge: Geoffrey W. Crawford

                          In the above-entitled cause, the Clerk will enter:

      Appellant appeals pro se from a trial court order dismissing his complaint seeking
placement on the 2012 Presidential ballot. We affirm.

        In February 2011, appellant, who is incarcerated, filed a complaint seeking to have his
name placed on the ballot in Vermont for the Democratic Party nomination for President in 2012,
and challenging state laws that allegedly prohibit convicted felons from voting in federal
elections. The trial court dismissed his complaint, and this Court affirmed, finding that appellant
failed to state a claim on which relief could be granted. See In re Judd, No. 2011-108, 2011 WL
4976600 (Vt. July 7, 2011) (unpub. mem.). In May 2011, while his appeal was pending,
appellant filed another complaint, again seeking to have his name placed on the 2012 presidential
ballot and challenging state laws that allegedly prohibit convicted felons from voting in federal
elections. This complaint appears to be identical to that filed in February. In a May 2011 order,
the trial court found that appellant had re-filed the same complaint that had been previously
dismissed. It dismissed the second complaint on the ground that it had already decided the issue
presented by appellant. This appeal followed.

        Appellant maintains that the second complaint that he filed is not the same as the first
one. He does not elaborate on this point, instead arguing the merits of his claim that state law is
unconstitutional because convicted felons in prison are disqualified from primary presidential
ballot access, apparently because they are unable to secure a petition signed by at least 1000
voters and they are unable to pay the relevant filing fee. See 17 V.S.A. § 2702. Appellant raises
various other arguments, none of which appear to involve any claim that the trial court erred in
dismissing his complaint on the grounds that it did. See In re S.B.L., 150 Vt. 294, 297 (1988)
(appellant bears burden of demonstrating how the trial court erred warranting reversal, and
Supreme Court will not comb the record searching for error); see also V.R.A.P. 28(a)(4)
(appellant’s brief should explain what the issues are, how they were preserved, and what
appellant’s contentions are on appeal, with citations to the authorities, statutes, and parts of the
record relied on).

         We find no basis to disturb the court’s decision. The doctrine of res judicata “bars the
litigation of a claim or defense if there exists a final judgment in former litigation in which the
‘parties, subject matter and causes of action are identical or substantially identical.’ ” Berlin
Convalescent Ctr., Inc. v. Stoneman, 159 Vt. 53, 56 (1992) (quoting Berisha v. Hardy, 144 Vt.
136, 138 (1984)). (citations omitted). The doctrine bars parties from litigating claims that were
raised in previous adjudicative proceedings as well as those that should have been raised. Lamb
v. Geovjian, 165 Vt. 375, 380 (1996); see also Iannarone v. Limoggio, 2011 VT 91, ¶ 15
(explaining that a claim will be barred from being litigated if “(1) a previous final judgment on
the merits exists, (2) the case was between the same parties or parties in privity, and (3) the claim
has been or could have been fully litigated in the same proceeding” (quoting In re St. Mary’s
Church Cell Tower, 2006 VT 103, ¶ 3, 180 Vt. 638)).

        The dismissal of appellant’s first complaint was a final judgment on the merits. Our rules
of civil procedure provide that unless the court in its order specifies otherwise, a dismissal based
on a failure of a plaintiff to comply with the rules or any order of court, with exceptions not
relevant here, operates as an adjudication upon the merits. V.R.C.P. 41(b)(3). There is no
indication that defendant’s first complaint was dismissed without prejudice, and therefore the
dismissal of that complaint under V.R.C.P. 12(b)(6) for failure to state a claim on which relief
could be granted operates as a final adjudication on the merits. See also Exch. Nat’l Bank of
Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130-31 (2d Cir. 1976) (recognizing that
“judgments under [Federal Rule of Civil Procedure] 12(b)(6) are on the merits, with res judicata
effects”).

        While defendant asserts that his second complaint is different than the first, the record
shows that they are identical. Defendant submitted a memorandum brief with minor differences
in allegations from the complaint, but even if we considered the brief to be a further pleading, the
differences are insubstantial. Because the complaints are substantively the same, we affirm the
court’s dismissal of the second complaint on res judicata grounds. See Cody v. Cody’s Estate,
134 Vt. 113, 114-15 (1976) (similarly concluding that dismissal of first complaint on grounds
that plaintiff failed to state a cause of action barred plaintiff from later instituting an action
against the same defendants, alleging the same cause of action, and seeking the same relief).

       Affirmed.

                                                 BY THE COURT:

                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice




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