Court of Appeals of Missouri, Eastern District, Fourth Division
STATE ex rel. ATTORNEY GENERAL JOSH HAWLEY, Appellant,
CITY OF ST. LOUIS, Respondent.
from the Circuit Court of the City of St. Louis 1422-CC10270
Honorable Julian L. Bush
M. Dowd, Chief Judge.
appeal between the State of Missouri and the City of St.
Louis presents us with two questions: (1) whether under
§ 105.726.4 the City owes the State $439, 975 to
compensate the Attorney General's Office
("AGO") for the legal representation it provided to
the St. Louis Board of Police Commissioners
("Board") and associated individuals in certain civil
liability claims brought against the Board, and (2) whether
the State is required by law to reimburse the City in the
amount of $1, 608, 269.90 for settlements and judgments paid
by the City and the Board between November 7, 2012 and
September 1, 2013 for liability claims filed against the
trial court in a bench trial entered a declaratory judgment
in favor of the City on both issues. On the first
question, the court declared that the City has no duty to
compensate the State for the legal work in question. And as
to the second question, the court declared that the City is
entitled to be reimbursed by the State in the amount of $1,
608, 269.90 for settlements and judgments that were paid by
the City on behalf of the Board or by the Board itself from
November 7, 2012 to September 1, 2013.
first question occupies the State's first three points on
appeal. As to this question, we agree with the State and
reverse the judgment of the trial court because pursuant to
§ 105.726.4, the City is required to fairly compensate
the AGO for the legal fees and expenses incurred by the AGO
for its representation of the Board in claims for which such
representation was requested and statutorily mandated. As to
the second question, we affirm the trial court's judgment
finding no error in the trial court's declaration that,
pursuant to § 105.726.3, the State is required to
reimburse the City for the various settlements and judgments
the City or the Board paid between November 7, 2012 and
September 1, 2013.
A review of the key legislative enactments relating to the
control over the St. Louis Metropolitan Police Department
("SLMPD"), and the responsibility to provide and
pay for the legal representation of the Board and to pay any
settlements or judgments incurred by the Board.
From 1861 until September 1. 2013. the SLMPD was under
Board was established as a state agency by the Missouri
General Assembly in 1861. State ex rel Sayad v.
Zych, 642 S.W.2d 907, 908-09 (Mo.banc 1982) (citing Act
of March 27, 1861, 1861 Mo. Laws 446). Each of the five
members of the Board, except for the Mayor of St. Louis, was
appointed by the Governor. Id. at 909. The Board was
empowered to establish, control, and administer the City
police force, and was authorized to compel the City to fund
the force. Id. Contemporaneous legislation
prohibited the City from interfering with the Board or the
exercise of its powers. Id. And although the
Board's enabling legislation underwent changes over the
following century-and-a-half, throughout that period the
Board retained its authority, most recently derived from
§§ 84.010 to 84.340, RSMo 2000, to direct and
control the affairs of the City's police force.
the passage in 2012 of Initiative Proposition A, Missouri
voters sanctioned the shift from state control to local
control of the SLMPD.
November 6, 2012, Missouri voters passed Initiative
Proposition A, which led directly to the enactment of §
84.344. That statute gave the City the right to establish its
own police force free from state control after July 1, 2013.
The statute also directed that once the City established its
police force, the state-controlled Board was required to
transfer to the City title and ownership of all its
indebtedness and assets.
City Ordinance 69489 established the SLMPD as the
City's own police force.
2, 2013, pursuant to the authorization granted it by §
84.344, the City passed Ordinance 69489, which provided for
the establishment on September 1, 2013 of the City's own
police force. And on September 1, 2013, the City assumed
control over the force, which included its acceptance of the
responsibility, ownership, and liability as the
successor-in-interest of the Board's contractual
obligations, indebtedness, and other lawful obligations.
Proposition A also amended § 105.726, a statute
originally adopted in 1983 as part of the establishment of
the State Legal Expense Fund ("SLEF") for the
payment of claims and judgments against state agencies,
officers, and employees.
1983, nearly thirty years prior to the passage of Proposition
A, the Missouri General Assembly created the SLEF. §
105.711-726, RSMo 1986. Section 105.711 set the terms of SLEF
coverage, establishing a fund to pay claims and judgments
rendered against state agencies, officers, and employees for
conduct arising out of and performed in connection with
official state duties. Individuals and entities that were
covered by the SLEF included elected officials, appointees,
members of state boards or commissions, members of the
Missouri National Guard, physicians associated with the
State, and others. Section 105.716 required that these
defendants be represented by the AGO.
105.726 in its original version provided that no part of the
SLEF-enacting legislation could be construed to broaden the
liability of the State beyond the exceptions to its sovereign
immunity that were already carved out in §§ 537.600
to 537.610, or to abolish or waive any defense.
5. The Missouri Supreme Court's holding in Smith v.
State, 152 S.W.3d 275 (Mo.banc 2005) led to the 2005
amendment of § 105.726, which expanded SLEF coverage to
the Board as a state agency and to City police officers
as officers of the state.
1983 when the SLEF was created until 2005, the City had
continued to provide and pay for legal representation for the
Board and to pay any settlements or judgments it incurred. In
1999, members of the Board and several police officers filed
a declaratory judgment action asserting that the Board was a
state agency, that they were state officers, and that
therefore they were entitled to coverage under the SLEF.
See Smith v. State, 152 S.W.3d 275 (Mo.banc 2005).
In 2005, the Missouri Supreme Court held in Smith
that the members of the Board and police officers were
entitled to SELF coverage because the Board was an
"agency of and the plaintiffs were "officers of the
state, and because the claims for reimbursement through the
SLEF were not barred by principles of sovereign immunity. 152
S.W.3d at 275-79, 280.
result, in 2005, the General Assembly amended § 105.726
to provide that the Board was thereafter entitled to
reimbursement through the SLEF, but only up to $1 million per
fiscal year. § 105.726.3, RSMo Cum. Supp. 2006. The
amendment also provided that the AGO was required to
represent the Board upon request in any liability claim filed
against the Board for which SLEF coverage was available, and
that the AGO was entitled to fair compensation for the cost
of the representation. § 105.726.4, RSMo Cum. Supp.
Proposition A amended $ 105.726.3 to carve out the Board
from SLEF coverage.
November 6, 2012 passage of Proposition A resulted in the
amendment of § 105.726.3 pursuant to which the Board was
no longer entitled to reimbursement through the SLEF for
covered claims. The amended statute provided as relevant here
that only the Board's successor-in-interest-the City-was
entitled to reimbursement through the SLEF. The statute has
not been amended since the passage of Proposition A.
Proposition A also ...