            SUPREME COURT OF MISSOURI
                     en banc
STATE OF MISSOURI ex rel.                    )    Opinion issued December 10, 2019
CARLOS D. ALSUP,                             )
                                             )
                            Relator,         )
                                             )
v.                                           )   No. SC97427
                                             )
THE HONORABLE                                )
JAMES F. KANATZAR,                           )
                                             )
                            Respondent.      )



                   ORIGINAL PROCEEDING IN PROHIBITION

       Israel Mariano (“Mariano”), a student at Independence Academy, filed a

negligence suit against Relator, Carlos Alsup (“Alsup”), an in-school suspension teacher.

Mariano sued Alsup in his individual capacity for the personal injuries Mariano sustained

when Alsup physically restrained him and broke his arm. Alsup filed a motion for

summary judgment, claiming he was entitled to official immunity, but the circuit court

overruled the motion. Alsup now seeks a writ of prohibition barring the circuit court

from taking any further action other than to vacate its order overruling Alsup’s motion for

summary judgment and to enter judgment for Alsup. This Court has the authority to
“issue and determine original remedial writs[,]” Mo. Const. art. V, § 4.1, and this Court’s

preliminary writ of prohibition is now made permanent.

                                          Background

        On April 28, 2016, Mariano was reluctant to go to school and refused to get on the

school bus at his home. Mariano’s mother called Independence Academy to inform them

that Mariano refused to get on the bus and that she would bring him to school in her own

vehicle. When she arrived at Independence Academy, Mariano’s mother physically

struggled to get him into the school. Once inside the school, Mariano’s mother turned

him over to Alsup and another staff member, who took hold of him. In the course of

physically restraining him, Alsup broke Mariano’s arm. At the time of this incident,

Alsup was employed as an in-school suspension teacher at Independence Academy, an

alternative school operated by the Independence School District (“District”).

         By statute, school districts are required to adopt a written policy addressing the

use of restrictive behavioral interventions. See § 160.263.2. 1 As a result, the District

adopted District Board Policy 2770 (“Policy 2770”). Pursuant to Policy 2770, an

in-school suspension teacher is permitted to physically restrain students in three

situations: (1) “[i]n an emergency situation;” 2 (2) “[w]hen less restrictive measures [have]

not effectively deescalated the situation;” and (3) when otherwise specified by various




1
    All statutory references are to RSMo 2016.
2
   Policy 2770 further defines “emergency situation” as “one in which a student’s behavior poses
a serious, probable threat of imminent physical harm to self or others or destruction of property.”


                                                 2
types of plans. 3 Policy 2770 also provides physical restraint shall “[o]nly be used for as

long as necessary to resolve the actual risk of danger or harm that warranted the physical

restraint.” And the school personnel using physical restraint shall “[u]se no more than

the degree of force necessary to protect the student or other persons from imminent

physical harm.” Further, Policy 2770 permits the school personnel using physical

restraint to only “[u]se methods of restraint in which the personnel has received district

approved training.” 4

        In addition to the guidelines set forth in Policy 2770, the District also provides its

employees with training through the Crisis Prevention Institute (“CPI”). Alsup attended

this training program as required by his employment. Generally, the CPI training

program provides District employees with guidelines, strategies, and methods for

deescalating emergency situations. The program also provides training for multiple

methods of physically restraining a student. 5

        Mariano filed suit alleging Alsup was negligent in physically restraining Mariano

and seeking damages for his injuries. Alsup filed two motions to dismiss, both of which



3
   These plans include Individualized Education Plans; “Section 504 Plans” developed to support
children with disabilities; or a “parentally agreed-upon-plan to address a student’s behavior.”
4
    There is no allegation that Policy 2770 fails to comply with section 160.263.
5
   For instance, the CPI training manual included four “Classroom Model diagrams,” each of
which depicted different methods school personnel may utilize if the need arises to physically
restrain a student. These methods include: the “Children’s Control Position,” which may be used
to restrain “considerably smaller” individuals; the “Team Control Position,” which may be used
“to manage individuals who have become dangerous to themselves or others;” the “Transport
Position,” which may be used to safely move “an individual who is beginning to regain control;”
and the “Interim Control Position,” which may be used to “maintain control of both of the
individual’s arms, if necessary, for a short period of time.”


                                                 3
were overruled. Alsup later filed a motion for summary judgment, arguing he was

entitled to official immunity. The circuit court overruled Alsup’s motion. Alsup sought a

writ of prohibition in the court of appeals, which was denied, and now seeks the same

relief in this Court.

                                            Analysis

         “‘Immunity’ connotes not only immunity from judgment but also immunity from

suit.” State ex rel. Mo. Dep’t of Agric. v. McHenry, 687 S.W.2d 178, 181 (Mo. banc

1985). When a defendant is entitled to immunity as a matter of law, “prohibition is an

appropriate remedy.” State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 444 (Mo. banc

1986).

         Two types of immunity often are confused when suit is brought against a

governmental official. Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc

2008). Broadly speaking, sovereign immunity protects governmental entities from tort

liability and can be invoked when a governmental official is sued only in his or her

official capacity. See id. Official immunity, on the other hand, protects public officials

sued in their individual capacities “from liability for alleged acts of negligence committed

during the course of their official duties for the performance of discretionary acts.” Id. 6

         At issue here is the doctrine of official immunity, which this Court has long held

protects a public official from liability if that official acts within the course of his official



6
  Sovereign immunity originally was a matter of common law but now is codified in sections
537.600 through 537.650. Southers, 263 S.W.3d at 609. Official immunity remains a matter of
common law alone. Id. at 610.


                                                4
duties and without malice. 7 Id. at 610 & n.7 (citing Reed v. Conway, 20 Mo. 22, 52

(1854)). The purpose of this doctrine is to allow public officials to “make judgments

affecting the public safety and welfare” without “[t]he fear of personal liability.” Green

v. Denison, 738 S.W.2d 861, 865 (Mo. banc 1987), overruled on other grounds by Davis

v. Lambert-St. Louis Int’l Airport, 193 S.W.3d 760, 765 n.8 (Mo. banc 2006). This is

because, “[i]f an officer is to be put in fear of financial loss at every exercise of his

official functions, … the interest of the public will inevitably suffer ….” Smith v.

Berryman, 199 S.W. 165, 167 (Mo. banc 1917).

       Indeed, “[c]ourts and legal commentators have long agreed that society’s

compelling interest in vigorous and effective administration of public affairs requires that

the law protect those individuals who, in the face of imperfect information and limited

resources, must daily exercise their best judgment in conducting the public’s business.”

Kanagawa v. State ex rel. Freeman, 685 S.W.2d 831, 836 (Mo. banc 1985). Therefore,

when a public official asserts the affirmative defense of official immunity, she should be

afforded such immunity so long as she was acting within the scope of her authority and

without malice. Green v. Lebanon R-III Sch. Dist., 13 S.W.3d 278, 284 (Mo. banc 2000)

(“Under the doctrine of official immunity, a public official is not liable to members of the

public for negligence that is strictly related to the performance of discretionary duties.”)

(citing Green, 738 S.W.2d at 865).


7
   “A defendant acts with malice when he wantonly does that which a man of reasonable
intelligence would know to be contrary to his duty and which he intends to be prejudicial or
injurious to another.” Twiehaus, 706 S.W.2d at 447 (quotation marks omitted).



                                                5
       Courts applying the doctrine of official immunity must be cautious not to construe

it “too narrowly lest they frustrate the need for relieving public servants of the threat of

burdensome litigation.” Kanagawa, 685 S.W.2d at 836 (quotation marks omitted).

There is, however, a narrow exception to the application of the official immunity doctrine

– i.e., when a public officer fails to perform a ministerial duty required of him by law, he

may be personally liable for the damages caused. Knox County. v. Hunolt, 19 S.W. 628,

630 (Mo. 1892). This narrow exception, therefore, focuses on the nature of a ministerial

act.

       Generally, a ministerial act has long been defined as merely “clerical.” E.g.,

McFaul v. Haley, 65 S.W. 995, 998 (Mo. 1901). And this Court has noted that a

ministerial duty compels a task of such a routine and mundane nature that it is likely to be

delegated to subordinate officials. See, e.g., id.; Albright v. Fisher, 64 S.W. 106, 110

(Mo. 1901). For more than a century, this Court has held that a ministerial or clerical

duty is one in which a certain act is to be performed “upon a given state of facts in

a prescribed manner in obedience to the mandate of legal authority, and without regard to

[the public official’s] judgment or opinion concerning the propriety or impropriety of the

act to be performed.” State ex rel. Forgrave v. Hill, 198 S.W. 844, 846 (Mo. banc 1917)

(quotation marks omitted). Thus, the central question is whether there is any room

whatsoever for variation in when and how a particular task can be done. If so, that task –

by definition – is not ministerial. See, e.g., State ex rel. Clarke v. West, 198 S.W. 1111,

1113 (Mo. banc 1917) (holding mandamus will not lie to direct “the particular action he

will take in the matter” when law authorizes the officer to choose between alternatives).


                                              6
       The task of identifying ministerial acts that fall outside the protections of official

immunity is similar to the task of identifying ministerial acts that a writ of mandamus

will issue to compel an official to perform. See State ex rel. Howser v. Oliver, 22 S.W.

637, 639 (Mo. 1893) (“It is well settled that mandamus will lie against a public officer to

compel the performance of a mere ministerial act ….”). In fact, the test for whether a

task is “ministerial” for purposes of a writ of mandamus is precisely the same as the test

for whether that task is “ministerial” such that official immunity will not apply. Compare

Curtis v. Mo. Democratic Party, 548 S.W.3d 909, 915 (Mo. banc 2018) (“A ministerial

duty is a duty of a clerical nature which a public officer is required to perform upon a

given state of facts, in a prescribed manner, in obedience to the mandate of legal

authority, without regard to his own judgment or opinion concerning the propriety of the

act to be performed.”) (quotation and emphasis omitted), and State ex rel. Kan. City

Power & Light Co. v. McBeth, 322 S.W.3d 525, 531 (Mo. banc 2010) (same), with

Southers, 263 S.W.3d at 610-11 (“A ministerial function … is one of a clerical nature

which a public officer is required to perform upon a given state of facts, in a prescribed

manner, in obedience to the mandate of legal authority, without regard to his own

judgment or opinion concerning the propriety of the act to be performed.”) (quotation

marks omitted), and Davis, 193 S.W.3d at 763 (same). Accordingly, if a writ of

mandamus would not have been proper to compel an official to perform an act, it should

follow that official immunity protects an official from liability for injuries arising from

the performance of that act.




                                              7
       Mariano focuses almost exclusively on the portion of the test for clerical or

ministerial duties that refers to “obedience to the mandate of legal authority.” But such a

focus has led to confusion in this area of the law and an erosion in the protections of

official immunity. The fact that a statute or regulation may confer authority – or even a

duty – to act in a given situation says nothing about whether the act authorized or

compelled is the sort of ministerial or clerical act to which official immunity does not

extend. 8 Thus, the relevant inquiry is not whether the law authorizes, regulates, or

requires an action. Instead, it is whether the action itself is ministerial or clerical. 9 And,


8
   This Court’s cases are replete with examples in which the authority or duty to act extends
beyond actions that are merely ministerial or clerical. See, e.g., Clarke, 198 S.W. at 1113
(statutes requiring the county court to determine whether requested improvements are necessary
for sanitary or agricultural purposes or would be of public utility did not impose a ministerial
duty); Mo. Dep’t of Agric., 687 S.W.2d at 182-83 (statutes governing the Director of the
Department of Agriculture’s inspections, and subsequent conduct based on the result of an
inspection, of licensed public warehouses did not impose a ministerial duty); State ex rel.
Howenstine v. Roper, 155 S.W.3d 747, 754-55 (Mo. banc 2005) (a state regulation requiring a
doctor to supervise services rendered at a clinic, pursuant to a “collaborative practice
arrangement,” did not impose a ministerial duty), abrogated on other grounds by Southers, 263
S.W.3d at 614 n.13; Southers, 263 S.W.3d 619-20 (statutes and department policies regarding a
police officer’s conduct during a vehicular pursuit did not impose a ministerial duty upon a
police officer during a high-speed vehicle chase). Additionally, statutes conferring policymaking
authority upon a public official do not impose a ministerial duty. See, e.g., Dritt v. Snodgrass, 66
Mo. 286-292 (1877); Kanagawa, 685 S.W.2d at 836; State ex rel. Barthelette v. Sanders, 756
S.W.2d 536, 539 (Mo. banc 1988); Heins Implement Co. v. Mo. Highway & Transp. Comm’n,
859 S.W.2d 681 (Mo. banc 1993), abrogated on other grounds by Southers, 263 S.W.3d at 614
n.13; Charron v. Thompson, 939 S.W.2d 885, 887 (Mo. banc 1996).
9
   This focus on whether a duty is ministerial dominates many areas of law, not just the doctrine
of official immunity. See, e.g., Bowen v. Hixon, 45 Mo. 340, 342-43 (1870) (statute requiring
the county clerk to count the votes of each candidate in the election and give the candidate with
the highest number of votes a certificate of election imposed a ministerial duty); State ex rel.
Metcalf v. Garesche, 65 Mo. 480, 487-88 (Mo. 1877) (statute requiring board of canvassers to
certify the total number of votes provided by the county clerk to the Secretary of State imposed a
ministerial duty); Forgrave, 198 S.W. at 847 (statute requiring a judge to sign a warrant after the
claim for an officer’s salary had been audited and a warrant ordered imposed a ministerial duty);
State ex rel. Chi., R. I. & P. Ry. Co. v. Becker, 41 S.W.2d 188, 188-89 (Mo. banc 1931) (statute
requiring the secretary of state to renew a business license upon a company’s payment of taxes

                                                 8
even when a clerical or ministerial act appears to be authorized or required by statute,

official immunity will still apply if the official retains authority to decide when and how

that act is to be done. See, e.g., Howser, 22 S.W. at 639; Green, 13 S.W.3d at 285; State

ex rel. Metcalf v. Garesche, 65 Mo. 480, 489 (1877). As a result, even though a statute

might require a public official to act “fairly,” “competently,” “safely,” or “reasonably” in

a given situation, the performance of that action will fall within official immunity

because what constitutes fair, competent, safe, or reasonable may differ from time to

time, place to place, and official to official.

       Turning to the present case, Alsup’s motion for summary judgment should have

been sustained because there is no genuine issue of material fact and he is entitled to

official immunity as a matter of law. ITT Commercial Fin. Corp. v. Mid-Am. Marine

Supply Corp., 854 S.W.2d 371, 381 (Mo. banc 1993). Alsup, of course, bears the burden

of proving this affirmative defense, Warren v. Paragon Techs. Grp., Inc., 950 S.W.2d

844, 846 (Mo. banc 1997), and he established as a matter of law that he was a public

official and that the actions challenged in Mariano’s petition were within the scope of

Alsup’s duties and were performed without malice. Reed, 20 Mo. at 52.

       As an initial matter, Mariano does not dispute that Alsup is a public official.

Alsup is an employee of the school district, a governmental entity. Dritt, 66 Mo. at 292.

Similarly, Alsup’s actions in restraining Mariano were within the scope of Alsup’s



(and other requirements) imposed a ministerial duty); State ex rel. City of St. Louis v. Priest, 152
S.W.2d 109, 112 (Mo. 1941) (statute requiring the clerk of the court to issue an execution upon a
judgment when requested to do so by the judgment holder imposed a ministerial duty).


                                                  9
official authority as an in-school suspension teacher. Finally, there is no allegation or

argument that Alsup acted with malice toward Mariano. Therefore, absent anything

further, Alsup is entitled to official immunity.

       Mariano, however, claims that the narrow, “ministerial act” exception to official

immunity applies. Specifically, he concedes that Alsup’s duty to determine whether to

physically restrain Mariano was not ministerial but, he argues, once that decision was

made, Alsup’s duty under Policy 2770 regarding how to restrain Mariano was a

ministerial duty. Mariano relies on the deposition testimony of Dr. James Monk, who

testified that Alsup used a district-approved method of restraint known as the “Team

Control Position” on Mariano, but Alsup failed to use that restraint properly. 10 As a

result, Mariano argues Alsup’s duty to conduct the physical restraint in a legally

mandated manner was a ministerial duty and Alsup is not entitled to official immunity.

       Determining the need to restrain a school-age child – let alone determining and

employing the proper means and manner to accomplish that restraint – are about as far

from the sort of clerical or ministerial acts that can be compelled by a writ of mandamus

as one can imagine. By the same token, therefore, they are equally as far from the sort of


10
    Dr. Monk’s testimony that Alsup should have performed the “Team Control Position” in a
manner other than he did actually undercuts Mariano’s argument that Alsup was engaged in a
ministerial task. See Howser, 22 S.W. at 639 (“If, then, the duties of the defendant … required
the exercise of any []special discretion or judgment, and he acted in the premises according to his
judgment, though erroneously, the writ was improvidently issued.”). Indeed, the very purpose of
official immunity is to protect a public official when he makes a mistake during the performance
of tasks within the scope of his official authority. State ex rel. West v. Diemer, 164 S.W. 517,
522 (Mo. 1914) (Unless the public official’s conduct “went beyond a mere honest mistake or
error of judgment and acted maliciously, fraudulently, corruptly, or wantonly and arbitrarily,
there can be no recovery.”).


                                                10
ministerial or clerical acts that fall outside the broad scope of official immunity. Alsup

had no clear and unequivocal duty to restrain Mariano, let alone a clear and unequivocal

duty to use a particular restraint in a particular way. To the contrary, Policy 2770

permitted Alsup to determine whether and when it was necessary to use physical restraint

on a student. Policy 2770 also provided Alsup the authority to use physical restraint to

the degree of force necessary, for as long as necessary, to protect Mariano and others

nearby. If five in-school suspension teachers had been confronted with a child acting the

way Mariano was acting, all five could have acted differently and yet each could have

remained in compliance with Policy 2770. This is the very antithesis of a clerical or

ministerial duty.

       Moreover, the portion of Policy 2770 restricting Alsup’s use of physical restraint

to “methods of restraint in which the personnel has received district approved training”

does not turn the task of student restraint into a clerical or ministerial one. The CPI

training included several techniques for physically restraining students, and Alsup was

authorized to select the one he deemed appropriate, employ it with the amount of force he

deemed necessary, and continue it for as long as he deemed proper. Nothing in Policy

2770 imposed a clerical or ministerial duty on Alsup under these circumstances. Cf.

Clarke, 198 S.W. at 1113 (holding “where an officer … has considered and determined

what his course of action is to be … his action is not subject to review or control by

mandamus”) (quotation marks omitted).

       In Green, this Court addressed a similar, though plainly not identical, situation in

which police officers were confronted with an armed individual. Green, 738 S.W.2d at


                                             11
865. In holding the officers were entitled to official immunity, this Court explained: “It

is hard to imagine a setting more demanding of judgment than one in which line officers

… confront a person who has recently flourished a gun.” Id. Situations “teeming with

the necessity for quick judgment calls” are exactly the types of decisions that “official

immunity was established to protect public officials from.” Id. at 866. “This is so even

though hindsight may demonstrate errors in judgment which might be branded as

negligent by qualified evaluators.” Id.

       Here, like the officers in Green, Alsup was required to make a rapid series of

difficult decisions concerning whether and how to restrain Mariano for the safety of that

child and everyone else nearby. Alsup had the authority and, perhaps, even the duty to

act, but when, where, and how he was to act were open to him. Official immunity was

created to protect him from claims he acted negligently under such circumstances, and

the narrow exception to that immunity for clerical or ministerial acts does not come close

to applying.

                                          Conclusion

       For the reasons set forth above, this Court’s preliminary writ of prohibition is

made permanent.


                                                       _____________________________
                                                       Paul C. Wilson, Judge

All concur.




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