Cates v. Webster, 68382

• Decision Date: 14 April 1987
• Docket Number: No. 68382,68382
• Citation: 727 S.W.2d 901
• Parties: Clay F. CATES, Appellant, v. William L. WEBSTER, Respondent.
• Court: Missouri Supreme Court

Page 901

727 S.W.2d 901

Clay F. CATES, Appellant, v. William L. WEBSTER, Respondent.

No. 68382.

Supreme Court of Missouri En Banc.

April 14, 1987.

John B. Williams, County Counselor, Jay D. Haden, Legal Counsel, Kansas City, for appellant.

William L. Webster, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Appellant, a bailiff in the Associate Division of the Circuit Court of Jackson County, was named defendant in an action sounding in tort, styled Wilton v. Cates (hereinafter Wilton ), in the Jackson County Circuit Court. Thereafter appellant filed this petition for declaratory judgment seeking a determination of his rights and respondent's responsibilities in the pending tort action under §§ 105.711 and 105.716, RSMo 1986. The trial court held that respondent, the Attorney General of Missouri, is not obligated to represent appellant in the tort action nor are moneys from the State Legal Expense Fund available for the payment of the claim or any amount required by a final judgment in that suit. The court found appellant was not an employee of an agency of the State of Missouri and the claim in Wilton did not involve appellant's conduct arising from and performed in connection with his official duties on behalf of an agency of the State of Missouri within the meaning of § 105.711.2(2). Affirming, the Court of Appeals, Western District, found § 105.711 inapplicable because the cause of action in Wilton arose prior to the enactment of that statutory section. Here on transfer the case is determined as though on original appeal. Mo. Const. art. V, § 10.

I.

From the stipulation of facts upon which the cause was submitted to the trial court and the record as a whole, the pertinent facts are these:

On June 10, 1982, David O. Wilton filed his petition in Wilton, seeking actual and punitive damages against appellant and Nancy Flanegin, a clerk-secretary in the Jackson County prosecuting attorney's office, for certain conduct of appellant and Flanegin on September 18, 1981, in the Jackson County Courthouse Annex. Wilton alleged that while at the prosecuting attorney's office attempting to file a complaint, appellant, "employed and working as a bailiff at the third floor Prosecutor's Office in Independence, Missouri, Jackson County Courthouse," and acting under Flanegin's direction, falsely imprisoned and unlawfully and offensively contacted Wilton.

Appellant, employed as bailiff in 1977 by the Sixth District Magistrate of Jackson County, Donald Benton, had been told by the judge that he would be in charge of the courtroom and all third-floor security. Having previously worked for Jackson County appellant knew he was required to live in the county. Benton was succeeded by Associate Circuit Judge James May, who told appellant that he would remain as bailiff and his duties would be the same as those prescribed by Benton.

Bailiffs are selected and hired by the associate circuit judges of the respective divisions, who set the duties, supervise the work and have the right to fire their bailiffs. Though bailiffs are subject to the personnel policies for employees of the circuit court, their positions are funded by the county treasury, including expenses for salary medical and dental insurance, life insurance, social security employer contributions, workers compensation, employment security and a pension plan. In addition they may become members of the credit union serving Jackson County employees and their salary checks are issued by the county's division of finance and are signed by the county executive and the clerk of the county legislature. Deductions of social security and withholdings for state and federal income taxes are transmitted to the proper governmental agencies by the county's division of finance and that division maintains all records required by law on payroll matters, such as social security deductions and income tax withholdings. Workers compensation and employment security claims filed by bailiffs and other county-funded court personnel are handled by the county in the manner of claims filed by county employees not working for the court. Although bailiffs' salaries are paid by Jackson County, the court administrator prepares the budget to support circuit court operations, including salaries for bailiffs, and after the court en banc approves the budget, it is submitted to the county budget officer who in turn submits it to the county executive for transmittal to the county legislature. Pursuant to § 50.640, RSMo 1986, neither the budget officer nor the county legislature may alter the estimates of the circuit court without the consent of the court and the county is required to appropriate the amounts so submitted.

It is the policy of Jackson County to provide representation for county officials and employees when sued for acts arising out of and performed in connection with the exercise of the duties of their respective offices and to satisfy from county funds judgments entered against them.

As to lawsuits for money damages based on conduct arising from and performed in connection with official duties on behalf of the state, the Attorney General's office has represented those persons holding positions within the circuit court level of the judicial system whose salaries and fringe benefits are provided from state funds. These have included circuit judges, circuit clerks, deputy circuit clerks, court reporters for circuit courts, and juvenile officers. On the other hand the Attorney General has refused to represent those not compensated from state funds, such as deputy juvenile officers, and upon the filing of the petition in Wilton, though Jackson County requested that the Attorney General represent appellant, that office refused because appellant was not paid by the state and was therefore, in the view of respondent, not a state officer or employee under § 105.711.2(2).

The trial court determined that associate divisions of circuit courts are agencies of the state under the State Legal Expense Fund, but that appellant was not an employee of nor was he performing duties on behalf of the state or an agency thereof within the meaning of § 105.711.2(2).

The question is whether the trial court drew proper legal conclusions from the stipulated facts. Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo. banc 1979).

II.

Generally, with some exceptions, expenditures accruing in the circuit courts are paid by the counties:

All expenditures accruing in the circuit courts, except salaries and clerk hire which is payable by the state, except all expenditures accruing in the municipal divisions of the circuit court, and except as otherwise provided by law, shall be paid out of the treasury of the county in which the court is held in the same manner as other demands.

Section 476.270, RSMo 1986 (emphasis added). Appellant, represented by the office of the county counselor, contends in essence that the general rule of § 476.270 notwithstanding, Jackson County is responsible for neither the defense nor paying the claim in Wilton because by virtue of §§ 105.711 and 105.716 it has been "otherwise provided by law."

Section 105.711 is in pertinent part:

1. There is hereby created a "State Legal Expense Fund" which shall replace the "Tort Defense Fund" and which shall consist of moneys appropriated to the fund by the general assembly and moneys otherwise credited to such fund pursuant to section 105.716.

2. Moneys in the state legal expense fund shall be available for the payment of any claim or any amount required by any final judgment rendered by a court of competent jurisdiction against:

(1) The State of Missouri, or any agency thereof, pursuant to section 537.600, RSMo; or

(2) Any officer or employee of the state of Missouri or any agency thereof, including, without limitation, elected officials, appointees, members of state boards or commissions and members of the Missouri national guard upon conduct of such officer or employee arising out of and performed in connection with his or her official duties on behalf of the state, or any agency thereof, provided that moneys in this fund shall not be available for payment of claims under chapter 287, RSMo.

(Emphasis added.) In addition § 105.716.1 provides that "[a]ny investigation, defense, negotiation, or compromise of any claim covered by sections 105.711 to 105.726 shall be conducted by the attorney general."

Appellant can succeed only if: (1) he was an officer or employee of the state or any agency thereof; and (2) the claim is against conduct which arose out of and was performed in connection with his official duties on behalf of the state or any agency thereof. ¹

III.

We first address respondent's contention that appellant is not entitled to the protection of §§ 105.711 and 105.716.1 because the events giving rise to Wilton and the filing of the petition in that case occurred prior to September 28, 1983, the effective date of the referenced statutory sections, and to hold otherwise would constitute retrospective application of those statutes in violation of Mo. Const. art. I, § 13. ² See generally Aherron v. St. John's Mercy Medical Center, 713 S.W.2d 498, 502 (Mo. banc 1986); Vaughan v. Taft Broadcasting Co., 708 S.W.2d 656, 660 (Mo. banc 1986); State ex rel. St. Louis-San Francisco Ry. Co. v. Buder, 515 S.W.2d 409, 410-11 (Mo. banc 1974). However, contrary to respondent's contention we conclude that affording appellant protection of these statutes does not involve a retrospective application.

Under § 105.711.2, moneys in the State Legal Expense Fund shall be available for the payment of any claim or any amount required by any final judgment rendered by a court of competent jurisdiction. Because the subsection specifies the rendering of any final judgment as one of the alternative "act[s] or transaction[s]," State ex rel. St. Louis-San Francisco Ry. Co., 515 S.W.2d at 411, triggering an obligation to...