            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT
 S.M.H.,                          )
                     Respondent, )
                                  )
 v.                               )             WD83050
                                  )
 ERIC SCHMITT, ATTORNEY           )             FILED: June 16, 2020
 GENERAL OF THE STATE OF          )
 MISSOURI, and SARAH STEELMAN, )
 COMMISSIONER OF                  )
 ADMINISTRATION, STATE OF         )
 MISSOURI,                        )
                       Appellant. )
                    Appeal from the Circuit Court of Cole County
                       The Honorable Patricia Joyce, Judge
                      Before Division Two: Mark D. Pfeiffer, P.J.,
                         and Alok Ahuja and Gary D. Witt, JJ.
       While Respondent S.M.H. was a student in a high school in the St. Louis

Public School District, she was sexually molested by one of her teachers. During

the period when the abuse was occurring, the school district lost its state
accreditation. As a result, the Special Administrative Board of the Transitional

School District of the City of St. Louis, established by § 162.1100,1 became the

district’s governing body, and the employer of S.M.H.’s abuser.

       S.M.H. obtained a default judgment for $4 million against the teacher who

had abused her. She then filed a declaratory judgment action in the Circuit Court

of Cole County against Attorney General Eric Schmitt and Commissioner of



      1      Unless otherwise indicated, statutory citations refer to the 2016 edition of
Revised Statutes of Missouri, updated through the 2019 Cumulative Supplement.
Administration Sarah Steelman (collectively “the State”). In her declaratory

judgment action, S.M.H. contended that she was entitled to payment on the

judgment from the State Legal Expense Fund established by § 105.711.

      The circuit court granted summary judgment to S.M.H. The State appeals.

It argues that the Legal Expense Fund is not liable to satisfy S.M.H.’s judgment,

because the teacher who molested her was not employed by an “agency of the state,”

as required by § 105.711.2(2). The State also contends that summary judgment for

S.M.H. was inappropriate because of the existence of genuine issues of material fact

concerning whether the accused teacher tendered the defense of S.M.H.’s claims to

the State, as required by § 105.716.2.

      We affirm.

                                Factual Background
      Between 2005 and 2009, S.M.H. attended Central Visual and Performing

Arts High School in the City of St. Louis. During the same period, Allen Merry

worked as a music teacher at the high school and at another school in the district.

S.M.H. alleged that, beginning in 2006 and continuing for several years, Merry

sexually abused her on the campus of the high school and on the campus of the

other St. Louis school at which he taught. In February 2012, Merry was arrested

and charged with eighteen counts related to the abuse and molestation of S.M.H.

He pleaded guilty to statutory rape, sodomy, sexual contact with a student by a

teacher, and sexual exploitation of a minor.

      When the abuse started, the St. Louis Public School District was governed by

the locally elected Board of Education of the City of St. Louis. In June 2007, the St.

Louis Public School District lost its state accreditation. By operation of

§ 162.1100.3, the Special Administrative Board of the Transitional School District of

the City of St. Louis became the district’s governing body upon the district’s loss of
accreditation. See Bd. of Educ. of City of St. Louis v. Mo. State Bd. of Educ., 271


                                           2
S.W.3d 1, 6 (Mo. 2008) (rejecting challenge brought by locally elected Board of

Education to the State’s accreditation decision, and to the constitutionality of

§ 162.1100).

      On October 13, 2015, S.M.H. filed a petition against Merry in the Circuit

Court of the City of St. Louis, seeking damages for sexual and emotional abuse.

(Case No. 1522-CC10821). Although Merry was personally served, he did not

respond to the lawsuit. On January 11, 2018, S.M.H. filed a motion seeking a

default judgment against Merry. The circuit court granted the motion for default

judgment on March 6, 2018. After a hearing on the same day, the circuit court

awarded S.M.H. $4 million in damages.

      After obtaining the default judgment against Merry, S.M.H.’s counsel

demanded satisfaction of the judgment from the Legal Expense Fund. The State

refused on the basis that Merry was not an employee of an “agency of the state,”

and therefore was not covered by the Fund.

      On April 24, 2018, S.M.H. filed a declaratory judgment action against the

State in the Circuit Court of Cole County, seeking a finding that the Legal Expense

Fund was required to satisfy the default judgment.

      The State filed a motion to dismiss S.M.H.’s petition for failure to state a
claim, in which it argued that the St. Louis Public School District was not an

“agency of the state,” even when it was governed by the Special Administrative

Board of the Transitional School District. For her part, S.M.H. filed a motion for

summary judgment, contending that the undisputed facts established that the

Legal Expense Fund was required to pay the default judgment. In opposing

S.M.H.’s summary judgment motion, the State repeated its argument that Merry

was not an employee of an “agency of the state.” It also argued that summary

judgment was unwarranted because a genuine issue of material fact existed as to




                                           3
whether Merry had tendered the defense of S.M.H.’s underlying civil action to the

State.

         On July 25, 2019, the circuit court denied the State’s motion to dismiss and

sustained S.M.H.’s motion for summary judgment. The court ordered that the

Attorney General and the Commissioner of Administration authorize payment from

the Legal Expense Fund for S.M.H.’s default judgment, in the amount of $4 million

plus accrued interest.

         The State appeals.

                                  Standard of Review
                Appellate review of the grant of summary judgment is
         essentially de novo. “The criteria on appeal for testing the propriety of
         summary judgment are no different from those which should be
         employed by the trial court to determine the propriety of sustaining
         the motion initially.” This Court reviews the record in the light most
         favorable to the party against whom judgment was entered.
         “Summary judgment is appropriate when the moving party has
         [established], on the basis of facts as to which there is no genuine
         dispute, a right to judgment as a matter of law.”
Newton v. Mercy Clinic E. Communities, 596 S.W.3d 625, 628 (Mo. 2020) (citations

omitted).

                                       Discussion
         The State asserts two Points on appeal. In the first, it argues that the Legal

Expense Fund does not provide coverage for S.M.H.’s default judgment against

Merry, because he was not employed by an “agency of the state.” In its second

Point, the State argues that even if Merry was an employee of an “agency of the

state,” genuine issues of material fact remain regarding whether he tendered the

defense of S.M.H.’s claims to the State, which is a precondition to coverage by the

Fund.

                                             I.
         The State’s first Point implicates questions of statutory interpretation.



                                             4
      “Statutory interpretation is a question of law, which is subject to de
      novo review on appeal.” “The primary rule of statutory construction is
      to ascertain the intent of the legislature from the language used, to
      give effect to that intent if possible, and to consider words used in the
      statute in their plain and ordinary meaning.”
Li Lin v. Ellis, 594 S.W.3d 238, 241-42 (Mo. 2020) (citations omitted).

                                           A.
      “In 1983, the Missouri Legislature enacted §§ 105.711-.726, creating the

State Legal Expense Fund.” State ex rel. Koster v. Kansas City Bd. of Police

Comm’rs, 532 S.W.3d 191, 194 (Mo. App. W.D. 2017) (citation omitted). The Legal

Expense Fund operates as “a voluntary assumption of defense and payment of

claims against State employees sued for their conduct arising out of and performed

in connection with official duties on behalf of the state.” Id. at 194-95 (citation and

internal quotation marks omitted).

      In this case, Legal Expense Fund coverage depends on whether Merry is

considered an employee of an “agency of the state.” Section 105.711.2 provides in

relevant part:

            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 of the state . . .;
             (2)    Any officer or employee of the State of Missouri or any
      agency of the state, . . . 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 of the state . . . .
      In Smith v. State, 152 S.W.3d 275 (Mo. 2005), the Missouri Supreme Court

held that members of the St. Louis Board of Police Commissioners, and officers of

the St. Louis Police Department, were officers or employees of an “agency of the

state,” entitled to coverage under the Legal Expense Fund. The Court held that

“[t]he statutory framework governing the St. Louis Police Board” mandated the
conclusion that it was an “agency of the state,” “as opposed to a local or municipal



                                           5
agency.” Id. at 278. In reaching its conclusion, the Court emphasized the following

features of the St. Louis Police Board:

      The members of the Board, other than the mayor of St. Louis ex-officio,
      are appointed by the governor with the advice and consent of the
      senate, and they receive their commissions from the governor. It is
      also the governor who is authorized by statute to remove any
      commissioner for misconduct in office. In addition, the general
      assembly has imposed upon the Board numerous requirements
      pertaining to the Board's duty to establish and employ a “permanent
      police force,” including those that establish the qualifications of police
      officers, the number of police officers of each rank that the Board may
      employ, and the maximum amount that officers of each rank can be
      paid. Further, the Board is required to make its records available for
      inspection by the general assembly or any committee thereof. In all
      these respects, the Police Board is answerable to the state rather than
      the City.
             In fact, the general assembly has expressly prohibited the City
      of St. Louis and its officials from presuming to exercise authority or
      control over the Board or the Police Department.
Smith, 152 S.W.3d at 278 (statutory citations omitted). In addition to the statutory

provisions establishing the Police Board, the Court also recognized the existence of

caselaw “consistently recogniz[ing]” the Police Board as a state agency in other

contexts. Smith, 152 S.W.3d at 278-79. “[B]ased on a structural analysis of the

statutes creating the Board and analogies to case law holding that the Board is an
agency of the state in other contexts,” the Supreme Court held that the St. Louis

Board of Police Commissioners is an “agency of the state” subject to Legal Expense

Fund coverage. Id. at 279.

      We recognize that the legislature overruled the specific result in the Smith

case, and withdrew Legal Expense Fund coverage for police officers employed by the

St. Louis and Kansas City Boards of Police Commissioners, when it enacted a new

§ 105.726.3 in 2005. Section 105.726.3 (enacted by S.B. 420, 93rd Gen. Assembly,

1st Reg. Sess. (2005)), provides that




                                          6
             Moneys in the state legal expense fund shall not be available for
      the payment of any claim or any amount required by any final
      judgment rendered by a court of competent jurisdiction against a board
      of police commissioners established under chapter 84, including the
      commissioners, any police officer, . . . or any other individual or entity
      acting or purporting to act on its or their behalf. Such was the intent
      of the general assembly in the original enactment of sections 105.711
      to 105.726, and it is made express by this section in light of the
      decision in Wayman Smith, III, et al. v. State of Missouri, 152 S.W.3d
      275. Except that the commissioner of administration shall reimburse
      from the legal expense fund the board of police commissioners
      established under section 84.350, and any successor-in-interest
      established pursuant to section 84.344, for liability claims otherwise
      eligible for payment under section 105.711 paid by such board up to a
      maximum of one million dollars per fiscal year.
§ 105.726.3 (emphasis added); see also State ex rel. Koster v. Kansas City Bd. of

Police Comm’rs, 532 S.W.3d 191, 196 (Mo. App. W.D. 2017); Thomas v. St. Louis Bd.

of Police Comm’rs, 447 F.3d 1082, 1086 (8th Cir. 2006) (recognizing that “in express

response to the Missouri Supreme Court’s [Smith] decision, the Missouri General

Assembly passed a law limiting the state’s obligations under the SLEF to the

boards of police commissioners” to a maximum of $1 million per fiscal year). The

same 2005 legislation also added a sentence to § 105.726.1, rejecting Smith’s

holding that the Legal Expense Fund statutes had the effect of waiving the State’s

own sovereign immunity. 152 S.W.3d at 280.
      Although the General Assembly overruled the specific result in the Smith

case, and Smith’s holding that the Legal Expense Fund statutes waive the

sovereign immunity of the State, we do not believe that the legislature thereby

rejected the Supreme Court’s “structural analysis” of the statutes creating a

particular governmental entity, or the Court’s emphasis on the level of State control

over a particular agency, to determine whether an entity is an “agency of the state”

for purposes of Legal Expense Fund coverage. We note that at least two later cases

apply Smith’s analytical framework in deciding whether other public entities
constitute “agencies of the State” for purposes of the Legal Expense Fund. See


                                          7
P.L.S. ex rel. Shelton v. Koster, 360 S.W.3d 805, 817 (Mo. App. W.D. 2011) (“We

disagree with Plaintiff, however, that the state's relationship to the Board of Police

Commissioners of St. Louis[, at issue in Smith,] is comparable to the state's

relationship to its school districts.”); Pub. Sch. Retirement Sys. Of Mo. v. State Street

Bank & Trust Co., 640 F.3d 821, 832 (8th Cir. 2011) (Missouri law; relying on Smith

in determining whether state retirement systems would be considered “agencies of

the state” for purposes of Legal Expense Fund coverage). Under Article V, § 2 of the

Missouri Constitution, we are bound to follow Smith’s analysis “until that decision

is modified or overruled by the Supreme Court” or by express legislative action. Fay

v. Stephenson, 552 S.W.3d 753, 759 (Mo. App. W.D. 2018).

                                            B.
       Under the “structural analysis” mandated by Smith, the unique nature of the

Special Administrative Board which governs the St. Louis Public School District

after a loss of accreditation renders the District an “agency of the state” for

purposes of Legal Expense Fund coverage.

       In Missouri, “[t]he powers, duties, and obligations of school districts” are

established by statute. State ex rel. Sch. Dist. of Springfield R-12 v. Wickliffe, 650

S.W.2d 623, 625 (Mo. 1983) (citation omitted). “Missouri law creates three different

types of school districts: seven-director districts, urban districts, and metropolitan

districts,” the latter of which is defined as “[e]very city in this state, not within a

county.” Brooks v. Bd. of Educ. of Sch. Dist. of Riverview Gardens, No. 4:10CV1043-

DJS, 2010 WL 11695144, at *2 (E.D. Mo. Aug. 12, 2010) (quoting § 162.571).2

       In normal times, the metropolitan school district established for the City of

St. Louis is governed by the locally elected Board of Education of the City of St.


       2       At present “St. Louis City is the only member” of the class defined as “any
city not within a county.” Jefferson Cty. Fire Protection Dists. Ass’n v. Blunt, 205 S.W.3d
866, 872 n.6 (Mo. 2006), overruled on other grounds, City of Aurora v. Spectra Communics.
Grp., LLC, 592 S.W.3d 764, 778 (Mo. 2019).


                                             8
Louis. § 162.571; Bd. of Educ. of St. Louis v. Daly, 129 S.W.3d 405, 405 (Mo. App.

E.D. 2004). The Board of Education of the City of St. Louis has “all the powers of

other school districts under the laws of this state . . . and shall perform all duties

required by general laws of school districts.” § 162.621.1. This includes general and

supervisory control and management of the public schools and school property, the

appointment of the district’s officers and employees, and the establishment of their

compensation. Id.

      In 1998, however, the Missouri legislature modified this framework by

enacting Senate Bill 781. Bd. of Educ. of City of St. Louis v. Mo. State Bd. of Educ.,

271 S.W.3d 1, 5 (Mo. 2008). S.B. 781 was enacted as part of the settlement of a

“long-running federal desegregation lawsuit regarding the City of St. Louis public

schools.” Id.; see also Liddell v. Bd. of Educ. of City of St. Louis, No. 4:72CV100

HEA, 2019 WL 1359290, at *1-2 (E.D. Mo. March 26, 2019). S.B. 781 enacted a new

§ 162.1100, which established within the City of St. Louis “a school district to be

known as the ‘Transitional School District of [the City of St. Louis],’” a district

“coterminous” with the boundaries of the St. Louis Public School District.

§ 162.1100.1. Under § 162.1100.1, the Transitional School District (or “TSD”) is a

“body corporate and politic and a subdivision of the state.” The operation of the
statute is limited to a “city not within a county,” § 162.1100.1 – meaning that it

applies only to the City of St. Louis. See footnote 2, above.

      Section 162.1100 contemplates that – initially – the Transitional School

District would serve in a temporary, supportive role, as the St. Louis Public School

District transitioned from federal-court control back to control by its locally elected

Board of Education. The statute provides that the TSD

      shall have the responsibility for educational programs and policies
      determined by a final judgment of a federal school desegregation case
      to be needed in providing for a transition of the educational system of
      the city from control and jurisdiction of a federal court school


                                            9
       desegregation order, decree or agreement and such other programs and
       policies as designated by the governing body of the school district.
§ 162.1100.1. As initially constituted, the governing board of the Transitional

School District consists of “three residents of the district,” one appointed by “the

governing body of the district” (i.e., the Board of Education of the City of St. Louis),

one by the mayor of the City of St. Louis, and one by the “president of the [City’s]

board of alderman.” § 162.1100.2(1). The locally elected Board of Education

continues to govern the public schools outside of the TSD’s limited statutory

purpose.

       S.B. 781 provides, however, for a radical restructuring of the school district’s

governance in the event that the district loses its accreditation from the State Board

of Education. First, upon loss of State accreditation, the member of the Transitional

School District’s governing board appointed by the Board of Education of the City of

St. Louis is removed. § 162.110.2(2). That member is “replaced by a chief executive

officer nominated by the state board of education and appointed by the governor

with the advice and consent of the senate.” Id. The statute provides that

       [t]he chief executive officer need not be a resident of the district but
       shall be a person of recognized administrative ability, shall be paid in
       whole or in part with funds from the district, and shall have all other
       powers and duties of any other general superintendent of schools,
       including appointment of staff. The chief executive officer shall serve
       for a term of three years or until his successor is appointed or until the
       transitional district is dissolved or terminated. His salary shall be set
       by the state board of education.[3]
       Second, upon the school district’s loss of accreditation, all of the powers and

responsibilities of the Board of Education of the City of St. Louis (except for the

Board’s auditing and public reporting obligations) are transferred to the Special


        3       The duties of a superintendent of a metropolitan school district include
“general supervision, subject to policies established by the board, of the school system . . .
courses of instruction, discipline and conduct of the schools, textbooks and studies.”
§ 168.211.2. In addition, subject to the board’s approval, the superintendent is responsible
for “[a]ll appointments, promotions and transfers of teachers and all other employees.” Id.


                                              10
Administrative Board of the Transitional School District. See §§ 162.621.2,

162.1100.3; see also Bd. of Educ. of City of St. Louis, 271 S.W.3d at 16-18; Liddell,

2019 WL 1359290, at *2 n.1 (proceeding to enforce the desegregation settlement;

recognizing that, by virtue of §§ 162.621.2 and 162.1100, the Special Administrative

Board “is the sole party with the power to enter into agreements or to pursue legal

action on behalf of the St. Louis Public Schools District,” and that it had been

substituted in the litigation for the Board of Education of the City of St. Louis).

      In addition to the transfer of the existing powers of the Board of Education of

the City of St. Louis, § 162.1100.4 also expressly provides that

            [t]he special administrative board's powers and duties shall
      include:
             (1)    Creating an academic accountability plan, taking
      corrective action in underperforming schools, and seeking relief from
      state-mandated programs;
             (2)    Exploration of alternative forms of governance for the
      district;
            (3)     Authority to contract with nonprofit corporations to
      provide for the operation of schools;
             (4)   Oversight of facility planning, construction, improvement,
      repair, maintenance and rehabilitation;
             (5)    Authority to establish school site councils to facilitate
      site-based school management and to improve the responsiveness of
      the schools to the needs of the local geographic attendance region of
      the school;
             (6)   Authority to submit a proposal to district voters pursuant
      to section 162.666 regarding establishment of neighborhood schools.
      Third, § 162.1100.5 grants the governing body of the Transitional School

District special taxing powers, if those power are authorized by “[t]he provisions of a

final judgment as to the state of Missouri and its officials in a school desegregation

case.” § 162.1100.5(1). The statute provides that these special taxing powers will
not be subject to certain locally adopted tax abatements or tax increment financing,



                                           11
or to the statutory provisions requiring school districts to “maintain a minimum

value of operating levy.” § 162.1100.5(2)(a), (2)(b), (3).

      Fourth, § 162.1100 imposes a number of additional obligations on the Special

Administrative Board for the Transitional School District, which do not apply

generally to other districts. In multiple instances, the TSD’s performance of these

special, additional responsibilities is expressly made “subject to review and

approval of the state board of education.” Thus, the statute provides:

             6.     (1)    The special administrative board established in
      this section shall develop, implement, monitor and evaluate a
      comprehensive school improvement plan, and such plan shall be
      subject to review and approval of the state board of education. The
      plan shall ensure that all students meet or exceed grade-level
      standards established by the state board of education pursuant to
      section 160.514;
                    (2)   The special administrative board shall establish
      student performance standards consistent with the standards
      established by the state board of education pursuant to section 160.514
      for preschool through grade twelve in all skill and subject areas,
      subject to review and approval of the state board of education for the
      purpose of determining whether the standards are consistent with
      standards established by the state board of education pursuant to
      section 160.514;
                   (3)    All students in the district who do not achieve
      grade-level standards shall be required to attend summer school;
      except that the provisions of this subsection shall not apply to students
      receiving special education services pursuant to sections 162.670 to
      162.999;
                    (4)   No student shall be promoted to a higher grade
      level unless that student has a reading ability at or above one grade
      level below the student's grade level; except that the provisions of this
      subsection shall not apply to students receiving special education
      services pursuant to sections 162.670 to 162.999;
                    (5)    The special administrative board established in
      this section shall develop, implement and annually update a
      professional development plan for teachers and other support staff,
      subject to review and approval of the state board of education.




                                           12
             7.     The school improvement plan established pursuant to this
      section shall ensure open enrollment and program access to all
      students in the district, and, consistent with the Missouri and United
      States Constitutions, shall give first priority to residents of the city for
      admission to magnet schools. The school board shall take all
      practicable and constitutionally permissible steps to ensure that all
      magnet schools operate at full capacity. Students who change
      residence within the district shall be allowed to continue to attend the
      school in which they were initially enrolled for the remainder of their
      education at grade levels served by that school, and transportation
      shall be provided by the district to allow such students to continue to
      attend such school of initial enrollment.
             8.     To the extent practicable, the special administrative
      board shall ensure that per pupil expenditures and pupil-teacher ratios
      shall be the same for all schools serving students at a given grade
      level.
            9.    The special administrative board shall ensure that early
      childhood education is available throughout the district.
             10.   The special administrative board shall ensure that
      vocational education instruction is provided within the district.
             11.   The special administrative board shall establish an
      accountability officer whose duty shall be to ensure that academically
      deficient schools within the district are raised to acceptable condition
      within two years.
§ 162.1100.

      Fifth, and finally, while § 162.1100.12 provides for the Transitional School

District to be dissolved on July 1, 2008, the legislature vested the State Board of
Education with the discretion to extend, terminate, or re-establish the TSD “at any

time” if it finds such action is necessary to “accomplish[ ] the purposes for which it

was established.”

      The governing structure of the Transitional School District, following the

district’s loss of accreditation, is not identical to the structure of the St. Louis Board

of Police Commissioners, which the Missouri Supreme Court addressed in Smith.

But like the Police Board at issue in Smith, § 162.1100 subjects the Transitional
School District to significant and pervasive State control, completely unlike the



                                            13
governance of any other school district in the State. Significantly, the State’s

assumption of control over the Transitional School District specifically displaces,

and supersedes, the authority formerly exercised by the district’s locally elected

school board. On loss of state accreditation, the member of the TSD’s governing

body appointed by the elected local school board is removed, and is replaced by a

gubernatorial appointee who exercises all of the powers of a district superintendent.

Section 162.1100 explicitly provides that the new chief executive officer need not be

a district resident, that the chief executive officer shall have a guaranteed three-

year term of office, and that his or her compensation will be set by the State – not

by the Transitional School District.

      Section 162.1100 specifically transfers all of the powers and responsibilities

previously invested in the locally elected school board to the Special Administrative

Board of the Transitional School District, except for “auditing and public reporting

powers.” § 162.621.2. The Special Administrative Board is given a series of

additional powers, many of which could fundamentally alter the manner in which

the district operates, such as the power to “explor[e] . . . alternative forms of

governance for the district,” to contract with nonprofit corporations to operate the

district’s schools, and to submit plans to voters to restructure the district’s
operations. § 162.100.4(2), (3), (6). The Transitional School District is given unique

taxing powers, which are not subject to locally approved tax abatements or tax

increment financing, or to the statutory provisions generally applicable to school

district tax levies. Section 162.1100 imposed numerous additional, unique

obligations on the Special Administrative Board, and specifies that the Special

Administrative Board’s performance of many of these additional duties “shall be

subject to review and approval of the state board of education.” § 162.1100.6(1), (2),

(5). The State Board of Education is given wide discretion to continue, terminate, or
resurrect the Transitional School District “at any time.” § 162.1100.12.


                                           14
      The mandatory takeover of the St. Louis Public School District by the Special

Administrative Board on the district’s loss of accreditation, and the statutory

provisions governing the operations of the Special Administrative Board, are wholly

unlike the statutory provisions applicable to other Missouri school districts which

may lose their State accreditation. When any other school district in Missouri loses

its State accreditation, the State Board of Education has several options at its

disposal. It may: allow the existing board of education to continue to govern the

district, with greater oversight; appoint a special administrative board to operate all

or part of the district; determine an alternative governing structure; attach the

district to another district(s); or establish one or more new school districts within

the territory of the lapsed district. § 162.081.3. If a special administrative board is

appointed, that special administrative board’s only statutory responsibility is to

operate the school district (or the part of the district it was appointed to govern)

until the district is accredited for two consecutive academic years. § 162.081.3(2)(a).

The special administrative boards which may be appointed in other Missouri school

districts are not subject to the numerous requirements, or levels of State control,

imposed on the Transitional School District.

      Using Smith’s “structural analysis,” we conclude that the State’s pervasive
control renders the Transitional School District an “agency of the state” for

purposes of Legal Expense Fund coverage.

                                           C.
      Additional support for our conclusion comes from a statute which expressly

provides that other special administrative boards are not covered by the Legal

Expense Fund.

      As discussed in § I.B, above, the State Board of Education is authorized (but

not required) to appoint a special administrative board or other alternative
governing body when other Missouri school districts lose their State accreditation.


                                           15
See § 162.081.3. The statute providing this authority with respect to other school

districts explicitly provides:

       Neither the special administrative board nor any other form of
       governance appointed under this section nor its members or
       employees shall be deemed to be the state or a state agency for
       any purpose, including section 105.711, et seq. [(the Legal Expense
       Fund statute)]. The state of Missouri, its agencies and employees shall
       be absolutely immune from liability for any and all acts or omissions
       relating to or in any way involving the lapsed district, a special
       administrative board, any other form of governance appointed under
       this section, or the members or employees of the lapsed district, a
       special administrative board, or any other form of governance
       appointed under this section. Such immunities, and immunity
       doctrines as exist or may hereafter exist benefitting boards of
       education, their members and their employees shall be available to the
       special administrative board or any other form of governance
       appointed under this section and the members and employees of the
       special administrative board or any other form of governance
       appointed under this section.
§ 162.081.5 (emphasis added).

       Section 162.081.5’s exemption of special administrative boards from Legal

Expense Fund coverage is limited to special administrative boards “appointed under

this section.” “‘Where several words are followed by a clause as much applicable to

the first and other words as to the last, the clause should be read as applicable to

all.’” Spradling v. SSM Health Care St. Louis, 313 S.W.3d 683, 688 (Mo. 2010)
(quoting Norberg v. Montgomery, 173 S.W.2d 387, 390 (Mo. 1943)); accord, State v.

Champagne, 561 S.W.3d 869, 873–74 (Mo. App. S.D. 2018); see generally Antonin

Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 147

(2012). The language of § 162.081.5 is very similar to the language of the statute at

issue in Norberg, which specified that the term “accounting officer” meant “the

county clerk, county comptroller, county auditor, accountant or other officer or

employee keeping the principal records of the county.” § 10934, RSMo 1939. The
Supreme Court held that the phrase “keeping the principal records of the county”



                                          16
applied to all of the listed officers in the series, not just to the final phrase (“other

officer or employee”). Here too, the phrase “the special administrative board nor

any other form of governance appointed under this section” must be interpreted to

mean that the immunity provisions of § 162.081.5 apply only to governing bodies

“appointed under” § 162.081 itself.

       The Special Administrative Board of the Transitional School District of the

City of St. Louis was not “appointed under” § 162.081. Instead, the Special

Administrative Board at issue here was appointed under § 162.1100, which provides

for a very different appointment process (three members, one appointed by the

governor, one by the mayor, and one by the president of the City’s board of

aldermen) than under § 162.081 (five or more members, all appointed by the State

Board of Education). Therefore, the specification in § 162.081.5, that “the special

administrative board . . . appointed under this section . . . shall [not] be deemed to

be . . . a state agency for [the] purpose [of] section 105.711,” does not apply to the

Special Administrative Board at issue in this case.4

       The fact that the General Assembly expressly excluded other special

administrative boards from Legal Expense Fund coverage strongly suggests that

the opposite result should apply here, where no express statutory exclusion applies.
“The legislature's use of different terms in different subsections of the same statute

is presumed to be intentional and for a particular purpose.” State v. Moore, 303

S.W.3d 515, 520 (Mo. 2010) (citation omitted); accord, Alberici Constructors, Inc. v.


        4      We recognize that § 162.081.5 was amended in 2019, to expressly apply not
only to a special administrative board, but also to “any other form of governance appointed
under this section.” See H.B. 604, 100th General Assembly, 1st Regular Session (2019).
But even before the 2019 amendment, § 162.081.5 was applicable only to “[a] special
administrative board appointed under this section.” § 162.081.5, RSMo 2016. Even under
this earlier version of § 162.081.5, the statement that “the special administrative board . . .
shall [not] be deemed to be . . . a state agency for [the] purpose [of] section 105.711” was
inapplicable to the Special Administrative Board of the Transitional School District of the
City of St. Louis.


                                              17
Dir. of Revenue, 452 S.W.3d 632, 637 (Mo. 2015) (citing Moore); Am. Civil Liberties

U. of Mo. v. Ashcroft, 577 S.W.3d 881, 892 (Mo. App. W.D. 2019) (ascribing

significance to the “sharp contrast” between the powers given to the Secretary of

State to review referendum petitions under §§ 116.120 and 116.332). The fact that

§ 162.1100 does not expressly exclude Legal Expense Fund coverage for the Special

Administrative Board of the Transitional School District, when such an express

exclusion apparently applies to every other special administrative board which

might be established in Missouri, is significant.5

                                             D.
       In determining whether the Special Administrative Board of the Transitional

School District is an “agency of the state,” it is also significant to recall that this

unique entity has its genesis in the settlement of a lawsuit in which the State – not

just local entities – was held liable, and acknowledged its responsibility, for the

decades-long maintenance of racially segregated schools in the City of St. Louis.

Thus, when the Transitional School District was established by § 162.1100, it was

intended to discharge the State’s obligation to remedy the historical segregation of

St. Louis’ public schools; the TSD was not established merely as a mechanism to

enable local authorities to remedy a local problem.

       As the Eighth Circuit recognized in reviewing the history of the

desegregation lawsuit:

             In 1972, the plaintiffs brought an action against the Board of
       Education of the City of St. Louis (City Board) alleging that the city
       schools were segregated by race as a matter of state law and practice.

        5      As explained in § I.B, above, special administrative boards appointed under
§ 162.081 are subject to substantially less State control than the Special Administrative
Board for the Transitional School District of the City of St. Louis. The legislature
nevertheless felt the need to specify in § 162.081.5 that these other special administrative
boards were not “agencies of the state” for purposes of Legal Expense Fund coverage. The
fact that the legislature felt it necessary to expressly exclude Legal Expense Fund coverage
for entities subject to lesser State control than the TSD, supports our conclusion that the
TSD is itself an “agency of the state.”


                                             18
      Thereafter, the State of Missouri was joined as a party defendant. We
      . . . [held] that prior to 1865 the State prohibited the creation or
      maintenance of schools for teaching black children to read or write and
      that, after that date until 1980, the City Board and the State were
      jointly responsible for maintaining a segregated school system. We
      further noted that the City Board and the State failed to take effective
      measures to desegregate the school system in the years immediately
      following Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98
      L.Ed. 873 (1954).
Liddell by Liddell v. Bd. of Educ. of City of St. Louis, 126 F.3d 1049, 1051–52 (8th

Cir. 1997) (other citations and footnote omitted). The enactment by the State of

§ 162.1100 “was a vital component of the settlement agreement disposing of the

federal desegregation litigation concerning St. Louis’ public schools.” Bd. of Educ.

of City of St. Louis, 271 S.W.3d at 10. The Missouri Supreme Court held that,

“‘[g]iven the long history of state-mandated, segregated schools [in Missouri], the

complexity of the issues, and the difficulty of developing a plan that will ensure that

students of all races will have a continuing equal opportunity for a quality,

integrated education’ the state possessed a substantial justification and an

important interest in reaching a settlement to dispose of the pending federal

litigation.” Id. (quoting Liddell, 126 F.3d at 1056).

      In its order approving the settlement of the desegregation lawsuit, the

district court noted that Missouri’s Attorney General had personally appeared
before the court, and acknowledged the State’s responsibility for the segregation of

St. Louis’ public schools:

      At the [settlement-approval] hearing, the Attorney General accepted
      blame on behalf of the State for past segregation in its public schools
      and apologized for this inequity. He noted that the continued funding
      provided for by the state legislature in SB 718 was evidence that this
      was not an empty apology.
Liddell v. Bd. of Educ. of City of St. Louis, No. 4:72CV100 SNL, 1999 WL 33314210,

at *3 (E.D. Mo. March 12, 1999); see also id. at *7 (“The Missouri Attorney General
has apologized in open court for past state constitutional transgressions.”).



                                          19
       The Transitional School District was created to remedy past wrongs

committed by the State, as part of the settlement of a long-running lawsuit in which

the State was a principal defendant. The TSD’s unique role in the resolution of the

St. Louis school desegregation litigation distinguishes it from every other school

district in the State, and supports our conclusion that it is an “agency of the state”

for purposes of § 105.711.

                                            E.
       In arguing for reversal, the State relies heavily on our decision in P.L.S. ex

rel. Shelton v. Koster, 360 S.W.3d 805 (Mo. App. W.D. 2011). P.L.S. addressed the

question whether a typical Missouri public school district (there, the Doniphan R-1

School District) qualified as an “agency of the state” for Legal Expense Fund

purposes. 360 S.W.3d at 808. P.L.S. concluded that the school district did not

constitute an “agency of the state,” and was therefore not entitled to Legal Expense

Fund coverage.

       While the issue decided in P.L.S. has obvious superficial similarities to the

issue we address here, we conclude that P.L.S. is distinguishable, given the

radically different structure of the Transitional School District as compared to a

typical accredited Missouri district. P.L.S. recognized that school districts are “‘part

of state government,’” and that they are “governmental instrumentalities of the

state and serve important governmental purposes.” 360 S.W.3d at 813 (citations

omitted). The Court emphasized, however, that school districts are “political

subdivisions” of the state, and that, “like other political subdivisions authorized by

law, [school districts are] generally formed by the vote of the citizenry in the

geographic area desiring to establish the district.” Id. (citing § 162.211). “‘The

subdivision of the state into counties and school districts [is to] . . . enable the

people of the territory . . . to govern and manage their own local affairs.’” Id.
(citation omitted)


                                            20
      P.L.S. noted that “[t]he phrase ‘state agency’ or ‘agency of the state,’ in

statutory and legal terminology, often refers to a division or a department of state

government performing (typically) the functions of the executive branch of state

government.” 360 S.W.3d at 815. The Court observed that school districts did not

neatly fall within this conception of a “state agency”: “School districts are not

typically regarded as a division or department of state government, but, as already

mentioned, are considered legally separate, special-purpose, local governmental

subdivisions with powers similar to those of a town, village, or county, including the

ability to levy taxes.” 360 S.W.3d at 815. Despite the pervasive State regulation of

the functioning of public schools, the Court held that school districts were not

thereby rendered “state agencies”:

      It is true that the school districts have a separate legal existence from
      the municipalities and counties in which they are situated, and it is
      true that the curriculum and various activities of school districts are
      regulated in various ways by the state, but, as we have noted, the
      school districts generally become a legal entity by the action of the
      constituent voters, who also elect governing board members. The
      school district voters thus share oversight of the school district with
      the state board of education and the legislature. The district is
      certainly not exclusively answerable to the governor and the
      legislature. The hiring of employees, including bus drivers, the levying
      of taxes, and so forth, are also subject to the control of the citizen
      constituency in the district through their elected representatives.
Id. at 818 (footnote omitted).

      The Court in P.L.S. expressed its concern that, if it held that the Legal

Expense Fund was responsible for defending and indemnifying tort claims brought

against the employees of a typical school district, then the Legal Expense Fund

would become responsible

      for the defense and indemnity of employees of every public entity,
      including every political subdivision, whether a county library, a school
      district, a municipality, a public corporation, a sewer district, a village,
      a township, and so forth, as well as every executive agency of the state.
      In other words, the Commissioner of Administration would be quite


                                          21
       busy with coverage issues as to every governmental entity within the
       state, from the tiniest sewer district to the largest municipality.
360 S.W.3d at 818-19.

       The considerations animating our decision in P.L.S. are simply not present

here. While denominated a “political subdivision” of the State, the Transitional

School District was not “formed by the vote of the citizenry in the geographic area

desiring to establish the district.” Moreover, the purpose of the District’s creation

was not to “enable the people of the territory . . . to govern and manage their own

local affairs,” but instead to allow the State to remedy constitutional violations for

which the State was directly responsible. Moreover, in the Transitional School

District, “[t]he hiring of employees, . . . the levying of taxes, and so forth, are [not]

subject to the control of the citizen constituency in the district through their elected

representatives.” To the contrary, as we have explained above, the Transitional

School District is rendered exempt from many of the statutes governing the levying

of taxes in typical school districts; its superintendent (who has primary

responsibility for personnel decisions) is a gubernatorial appointee with a three-

year term who need not even be a district resident; and the school district’s

operating decisions are not subject to local control through the people’s elected

representatives. Finally, P.L.S.’s understandable concern that it would “open the

floodgates” and make the Legal Expense Fund responsible for every public entity in

the State is simply not implicated here: the Special Administrative Board of the

Transitional School District is a unique entity in the State, the sole member of a

class of one. Our holding that the actions of its employees are covered by the Legal

Expense Fund will have limited significance beyond the confines of this particular

entity (which has not operated the St. Louis Public School District since 2017).

       Point I is denied.




                                            22
                                            II.
         In its second Point, the State argues that the circuit court’s grant of summary

judgment was improper because a factual dispute exists as to whether S.M.H.’s

abuser (former teacher Allen Merry) tendered defense of S.M.H.’s lawsuit to the

State.

         Section 105.716.2 requires persons covered by the Legal Expense Fund to

cooperate with the State’s investigation and defense of any claim:

                All persons and entities protected by the state legal expense
         fund shall cooperate with the [State] attorneys conducting any
         investigation and preparing any defense under the provisions of
         sections 105.711 to 105.726 by assisting such attorneys in all respects,
         including the making of settlements, the securing and giving of
         evidence, and the attending and obtaining witness to attend hearings
         and trials. Funds in the state legal expense fund shall not be used to
         pay claims and judgments against those persons and entities who do
         not cooperate as required by this subsection.
         “Essential to any such cooperation is that the defense of a claim be tendered

to the attorney general so the attorney general can control the defense and

settlement of covered claims as the statute requires.” Vasic v. State, 943 S.W.2d

757, 759 (Mo. App. E.D. 1997). “The failure of a defendant to tender defense to the

Attorney General and cooperate with the Attorney General in his defense prevents

payment from the Fund.” Sherf v. Koster, 371 S.W.3d 903, 908-09 (Mo. App. W.D.

2012) (citing Vasic).

         In support of her summary judgment motion, S.M.H. submitted two

exchanges of correspondence to establish that Merry had, in fact, tendered defense

of S.M.H.’s claims to the State. In the first exchange, from 2015, her attorney wrote

by e-mail to the Solicitor General in the Office of the Attorney General. In his e-

mail, S.M.H.’s counsel stated that “[i]t is our understanding that Allen Merry has

requested the Attorney General’s Office defend him in [S.M.H.’s] litigation, and he
has tendered his defense to your office. [¶] Has the office made a coverage



                                            23
determination . . .?” In response, the Solicitor General stated that “we declined Mr.

Merry’s request, telling him that the case did not fall within LEF coverage.”

      The second exchange of correspondence occurred in 2018, before the circuit

court’s entry of a default judgment against Merry. In a January 26, 2018 letter to

the Attorney General, S.M.H.’s counsel wrote:

             [Merry’s] defense has been tendered to your office on no fewer
      than two occasions. We have written you on numerous occasions
      affording your office ample opportunity to enter an appearance on his
      behalf. We requested numerous continuances in furtherance of those
      efforts. He is now in default.
            We have filed the enclosed Motion for Default Judgment and
      Entry of Judgment. On March 6, 2018 at 10:30 a.m., the Motion will
      be heard and ruled upon in Division 20. The Court will hold a hearing
      on damages only.
             We will then make a demand on the Missouri State Treasurer
      and the Legal Expense Fund for the damages awarded to our client.
      This is your last opportunity to enter an appearance on behalf of Mr.
      Merry.
The Attorney General’s First Assistant and Solicitor responded on March 2, 2018:

      As you know, during Attorney General Koster’s tenure, [which ended
      on January 1, 2017,] then-Deputy Attorney General Joseph
      Dandurand concluded that the State Legal Expense Fund (“LEF”) does
      not provide coverage to Mr. Merry. In particular, Judge Dandurand
      concluded that Mr. Merry was not an “officer or employee of the State
      of Missouri or any agency of the state.” § 105.711.2(2), RSMo. In
      response to your recent correspondence, we have reexamined this
      coverage issue, and we have reached the same conclusion as did Judge
      Dandurand. Thus, our Office will not approve any payments out of the
      LEF to satisfy a judgment against Mr. Merry, nor will our Office
      represent Mr. Merry in the above-captioned litigation.
      In its response to S.M.H.’s summary-judgment motion, the State did not

dispute the veracity of the correspondence on which S.M.H. relied to prove that

Merry had made an adequate tender. Instead, the State submitted the affidavit of

an Executive Secretary in the Attorney General’s Office, who had begun her
employment in the office in June 2018. The Executive Secretary stated that her



                                         24
duties included serving “as custodian of the records recording communications

related to incoming civil matters submitted to the Office of the Attorney General.”

The Executive Secretary testified that the records in her custody “begin in 2009 and

go to December 20, 2018.” The Executive Secretary testified that she had searched

the records in her custody, and found “no record of Allen P. Merry communicating

with the Office of the Attorney General,” and “no record of Allen P. Merry tendering

any defense with the Office of the Attorney General.”

      The State argues that this record creates a genuine issue of material fact

concerning whether Merry satisfied his statutory obligation to tender the defense of

S.M.H.’s claims to the State. We disagree. S.M.H.’s summary judgment evidence

established that Merry had requested a defense of S.M.H.’s claims from the State in

2015, but that his request was refused based on the Attorney General’s

determination that Merry was not covered by the Legal Expense Fund. The 2018

correspondence confirmed that the Attorney General’s Office had made a “no-

coverage” determination prior to 2017, and that, immediately before the default-

judgment hearing, the Office persisted in the view that S.M.H.’s claims were not

covered by the Legal Expense Fund.

      Thus, S.M.H.’s evidence establishes that the State was given a timely
opportunity to assume Merry’s defense, but instead made (and persisted in) a

determination that Merry was not covered by the Legal Expense Fund. This was

sufficient to establish, as a matter of undisputed fact, that Merry had tendered the

defense of S.M.H.’s claims to the State.

      The affidavit submitted by the State in opposition to S.M.H.’s motion did not

dispute S.M.H.’s evidence, or create a disputed factual issue requiring a trial. The

State’s affidavit merely established that no record of Merry’s tender of S.M.H.’s

lawsuit could be located within a file or database of “communications related to
incoming civil matters.” The State’s affidavit did not contest the authenticity of the


                                           25
correspondence S.M.H. submitted – it only indicated that copies of that

correspondence could not be located in a particular records management system

within the Attorney General’s Office.

       In these circumstances, the circuit court did not err in concluding that S.M.H.

had established, as a matter of undisputed fact, that Merry had tendered the

defense of S.M.H.’s claims to the State, as required by § 105.716.2.

       Point II is denied.

                                     Conclusion
       The judgment of the circuit court is affirmed.




                                        _______________________________________
                                        Alok Ahuja, Judge
All concur.




                                          26
