MODIFIED: January 31, 2012
P.L.S. A MINOR CHILD BY AND THROUGH DONNA SHELTON, HER MOTHER AND NEXT FRIEND, Appellant,
v.
CHRIS KOSTER, ATTORNEY GENERAL OF THE STATE OF MISSOURI; AND KELVIN L. SIMMONS, COMMISSION OF ADMINISTRATION, STATE OF MISSOURI, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) )
WD73275
OPINION FILED: December 13, 2011
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Patricia S. Joyce, Judge Division Three: James E. Welsh, P.J., James M. Smart, Jr., and Joseph M. Ellis, JJ. This case presents the issue of whether the holder of a judgment obtained against a school district's former bus driver is entitled to collect that judgment from the State Legal Expense Fund, established by section 105.711 RSMo. 1
1 Statutory references are to the Revised Statutes of Missouri (RSMo) 2000, as updated by the 2010 Cumulative Supplement, except where otherwise noted.
2
Factual Background In the fall of 2006, Robert Griffith, a school bus driver for the Doniphan R-I School District, molested a four-year-old preschool girl ("the Child" or "the Plaintiff") while she was on the school bus. Griffith was prosecuted, convicted, and sentenced to incarceration. The Child, through her mother and next friend, sued Griffith in U.S. District Court under 42 U.S.C. § 1983 for violation of the Child's civil rights. She did not sue the School District, the school board members, or the State of Missouri. Griffith was sued as an individual and not in an official capacity. Griffith defaulted. The court entered judgment in the Child's favor against Griffith in an individual capacity, reciting that Griffith had been hired by the School District to provide transportation and that his actions "arose out of his official duties in behalf of the State of Missouri." Thereafter, the Child brought another action—a declaratory judgment action—in circuit court. The named defendants were Chris Koster, Attorney General, and Kelvin Simmons, Commissioner of Administration. Koster, as Attorney General, is assigned certain responsibilities with regard to the State Legal Expense Fund. See, e.g., § 105.716 RSMo. The Commissioner of Administration has the responsibility of making the payments from the Legal Expense Fund. § 105.711.5. The Child sought in her action a declaration that the State Legal Expense Fund is obligated to satisfy the judgment entered against Griffith individually in United States District Court. The petition in the circuit court alleged that Griffith had requested that a defense be provided by the Fund and that the Attorney General had declined to provide a defense. Plaintiff stated that the School District is an "agency or arm of the State, created by
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statute, and that therefore the judgment awarded is covered by the State Legal Expense Fund." Defendants, in their response, admitted the fact that Griffith was a bus driver employed by the School District, and admitted that Griffith molested Plaintiff. Defendants denied, and still do not concede, that Griffith's conduct "arose out of or was performed in connection" with any "official duty on behalf of the State of Missouri." The Defendants affirmatively pleaded that Plaintiff's petition failed to state a claim upon which relief could be granted, that Plaintiff's claims were subject to governmental immunity, and that Plaintiff has an adequate remedy at law. Thereafter, Plaintiff moved for summary judgment in her behalf. The State also moved for summary judgment. The trial court, after consideration of the dispositive motions, agreed with the Defendants, entering judgment for Defendants. The Plaintiff appeals. Standard of Review The parties agreed as to the essential facts and submitted the case on competing motions for summary judgment. Therefore, our review is de novo. See ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). This is a case of statutory construction, in that the disposition of the case as submitted hangs on the meaning of the phrase "agency of the state." Thus, we apply the rules of statutory interpretation, but we do not do so "haphazardly or indiscriminately" in order to achieve a desired result. See Goerlitz v. City of Maryville, 333 S.W.3d 450, 455 (Mo. banc 2011). "Instead, the canons of statutory interpretation are considerations made
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in a genuine effort to determine what the legislature intended." Id. The primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute. Id. Legislative intent also is "determined by considering the whole act and its purposes and by seeking to avoid unjust or absurd results." Neske v. City of St. Louis, 218 S.W.3d 417, 424 (Mo. banc 2007). "In determining the meaning of a particular statute, [we] may look to the established policy of the legislature as disclosed by a general course of legislation." Id. "All consistent statutes relating to the same subject are construed together as though constituting one act, and [t]he rule of construction in such instances proceeds upon the supposition that the statutes in question are intended to be read consistently and harmoniously in their several parts and provisions." Id. (internal quotations omitted). And to the extent that section 105.711 constitutes a waiver of sovereign immunity, it is to be strictly construed. Ford Motor Co. v. Dir. of Revenue, 97 S.W.3d 458, 461 (Mo. banc 2003). "Agency of the State" Plaintiff does not contend that Griffith was an "officer or employee of the State of Missouri" as to whom a duty extends under section 105.711.2(2). Rather Plaintiff asserts that Griffith was an employee of an "agency of the state" under that same subsection. Both parties treat the case as boiling down to that one legal issue: whether a public school district is an "agency of the state" for purposes of the State Legal Expense Fund. 2
2 Some issues have been addressed in previous judicial decisions which are not challenged by either party. As for the issue of determining what kind of public entity might be an "agency of the state," the Supreme Court held in Smith v. State, 152 S.W.3d 275, 279 (Mo. banc 2005), that the St. Louis Board of Police Commissioners was an "agency of the state" based on a "structural analysis of the statutes creating the Board." Smith, which was legislatively overturned, is discussed in detail infra. As to the operation of the Fund, in Dixon v. Holden, 923
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State Legal Expense Fund Sections 105.711-105.726 create the "State Legal Expense Fund," which consists of sums appropriated by the General Assembly and any funds otherwise credited to the Fund by certain departments pursuant to section 105.716. The assets in the Fund are to be available for the payment of any claim, or any amount required by any final judgment against (1) the State, or any agency of the State (to the extent that the claim against the State is authorized pursuant to section 537.600, the sovereign immunity statute); and (2) against "any officer or employee of the State or any agency of the State," as provided and as limited in the statute. Because issues of statutory interpretation as to particular sections are addressed best when those sections are considered in light of the entirety of the relevant statutory scheme, we must consider the operative language in light of all the provisions relating to the State Legal Expense Fund. See Neske, 218 S.W.3d at 424 (the court may look to the established policy as disclosed by a "general course of legislation").
S.W.2d 370 (Mo. App. 1996), this court held that the Legal Expense Fund was not only a potential indemnity fund for the benefit of a state official, but also that the Fund could be accessed by the judgment creditor (who has standing to bring a declaratory judgment action) for the collection of the judgment against the state officer and tortfeasor. The court also held that a federal judgment for violation of civil rights (in that case, the right to be free from illegal wiretapping) was covered by the Legal Expense Fund. In Betts-Lucas v. Hartmann, 87 S.W.3d 310 (Mo. App. 2002), the court held that a woman who obtained a judgment for the wrongful death of her brother (who was a resident of a habilitation center operated by the Department of Mental Health) against an employee of the DMH could obtain compensation for the judgment from the Fund. In State ex rel. Cravens v. Nixon, 234 S.W.3d 442 (Mo. App. 2007), an inmate of the Department of Corrections had obtained a federal judgment against an employee of the DOC for violation of his civil rights as a prisoner to be free of cruel and unusual punishment. When the judgment creditor made demand on the Legal Expense Fund for payment of the judgment and payment was declined, the judgment creditor sought a writ of mandamus to obtain satisfaction of the judgment. One question not answered thus far in the cases is whether the State Fund is bound by a federal court's findings as to whether the tortfeasor's conduct "arose out of and was performed in connection with official duties" on behalf of the State of Missouri, when the interests of the State of Missouri were not represented in the federal litigation. See Cravens, 234 S.W.3d at 448 (court did not address issue because the circuit court made its own independent findings).
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In 1983, the State created the Legal Expense Fund to replace the "Tort Defense Fund," section 105.710 RSMo Supp. 1982, repealing the former statute at the same time. 3
The Legal Expense Fund statutes have been amended on multiple occasions since that time. Also, along the way, the legislature enacted a similar statute (sections 537.700, et seq.) designed to provide protection for employees of municipalities and other political subdivisions in Missouri. Both of these statutes amount to a partial waiver of the sovereign immunity applicable to the state to the extent that it provides for payment of a judgment obtained against a governmental officer or employee. See State ex rel. Cravens v. Nixon, 234 S.W.3d 442, 449 (Mo. App. 2007). The first reported Missouri judicial decision construing the portions of the Legal Expense Fund statute pertinent to this case came in Dixon v. Holden, 923 S.W.2d 370 (Mo. App. 1996). Dixon held that a judgment creditor having a judgment against two senior highway patrol officers for violation of his civil rights under 42 U.S.C. § 1983 could collect his judgment directly from the State Legal Expense Fund. In reviewing the statutory provisions, the court described the main operative terms as follows: First, section 105.716 provides for a legal defense of employees covered by the Fund. Second, section 105.721 provides for the purchase of insurance for the State of Missouri, its agencies, officers, and employees. Third, section 105.711 provides for the payment of judgments against various employees and the State under section 537.600.
Id. at 381. The Dixon court then opined:
3 Section 105.710, RSMo Supp. 1982, the "Tort Defense Fund" statute, authorized the Commissioner of Administration to pay judgments and settle claims against certain state employees "for acts arising out of and performed in connection with their official duties in behalf of the state." Payment was limited to $100,000, and no payment was to be made for claims connected with the operation of a motor vehicle.
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All of these statutory purposes seem to flow from one policy—to promote governmental efficienc