                 IN THE SUPREME COURT OF IOWA
                            No. 21 / 06-1165

                        Filed February 29, 2008


DAVID E. RICHTER and
LORI FALK-GOSS,

      Appellees,

vs.

SHELBY COUNTY, IOWA,

      Appellant.




      Appeal from the Iowa District Court for Shelby County, Greg W.

Steensland, Judge.



      County appeals the decision of the district court which held it

liable for attorneys’ fees and costs incurred in the criminal defense of a

deputy sheriff. REVERSED.



      Marcus Gross, Jr., County Attorney, and Richard C. Schenck and
Bryan D. Swain of Salvo, Deren, Schenck & Lauterbach, P.C., for

appellant.



      DeShawne L. Bird-Sell of DeShawne L. Bird-Sell, P.L.C., Glenwood,

for appellees.
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APPEL, Justice.

          In this case, we must decide whether a county is statutorily

obligated to provide a legal defense for a sheriff’s deputy charged with

voluntary manslaughter in connection with a shooting that occurred

while the deputy was on duty. The district court held that the county

was required to reimburse the deputy for attorneys’ fees arising out of his

successful criminal defense.          For the reasons expressed below, we

reverse.

          I. Factual and Procedural Background.

          The facts in this matter are undisputed. On December 20, 2004,

Shelby County Deputy Sheriff Chad Butler shot and killed Dwayne Jens

after a high-speed chase through rural Iowa. Jens was unarmed at the

time of the shooting.       The parties stipulated in this proceeding that

Butler “was on duty at the time that he shot and killed Mr. Jens and was

acting in his official capacity as an officer for Shelby County during the

incident.”

          On the day of the shooting, Butler contacted the plaintiff attorneys

in this matter, David Richter and Lori Falk-Goss, to represent him in

connection with the shooting. The following day, Shelby County Attorney

Marcus Gross, Jr., Chief Deputy Mark Hervey, and Don Shreffler of the

Iowa Division of Criminal Investigation interviewed Butler in Richter’s
office.     At all times during the interview, county attorney Gross was

acting as a prosecutor and not providing Butler legal defense.

          County attorney Gross presented the matter to a Shelby County

grand      jury,   which   indicted   Butler    on   the   charge   of   voluntary

manslaughter on February 2, 2005.              Following the indictment, Gross

withdrew as counsel for the State. On April 18, 2005, Butler’s attorneys

submitted a billing statement to Shelby County seeking payment of
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$14,775 in legal fees and costs. On April 26, 2005, the chairman of the

Shelby County Board of Supervisors responded by letter, stating that the

board did not have the authority to pay for Butler’s legal expenses.

Notwithstanding the rejection of their request for payment, Butler’s

attorneys continued to represent him.

      After a three-day trial in June 2005, Butler was found not guilty of

voluntary manslaughter. Following Butler’s acquittal, Butler’s attorneys

presented a bill to the Shelby County Board of Supervisors totaling

$63,013.50 in fees and costs arising from the defense. In response, the

board once again asserted that it lacked the authority to pay for Butler’s

criminal defense.

      Butler’s attorneys filed a petition at law in the district court

asserting that the county was statutorily required to assume Butler’s

defense and prayed for a monetary judgment for the services rendered

and costs incurred.       The parties tried the action to the court on

stipulated facts.   Butler’s attorneys claimed that they were entitled to

payment of their fees and expenses pursuant to Iowa Code section

331.756(6) (2005), which provides, in part, that the county attorney

“shall . . . defend all actions and proceedings in which a county officer, in

the officer’s official capacity, or the county is interested or a party.”

      The district court entered judgment in favor of Butler’s attorneys.
The county filed a timely notice of appeal.

      II. Standard of Review.

      The parties do not agree on the proper standard of review.            The

county asserts that because the remedy sought by Butler’s attorneys is

unjust enrichment, the case was therefore brought in equity and our

review is de novo. Iowa R. App. P. 6.4. Conversely, Butler’s attorneys

claim that the case was tried at law because the sole basis of relief was
                                      4

statutory in nature. As a result, Butler’s attorneys assert that our review

is limited to correction of errors at law. Id.

      The parties, however, stipulated to all the relevant facts. The only

issues presented in this case are questions of law. The sole issue before

us is whether Butler’s attorneys, under the stipulated facts, are legally

entitled to payment. Our review, therefore, is for correction of errors of

law. Sager v. Farm Bureau Mut. Ins. Co., 680 N.W.2d 8, 11 (Iowa 2004).

      III. Discussion.

      Resolution of this case turns on the proper interpretation of Iowa

Code section 331.756(6), which is the sole basis asserted by the plaintiffs

for payment of Butler’s criminal defense.        In relevant part, this Code

provision provides that “[t]he county attorney shall: . . . (6) Commence,

prosecute, and defend all actions and proceedings in which a county

officer, in the officer’s official capacity, or the county is interested or a

party.” Iowa Code § 331.756(6).

      The county raises three arguments against imposition of a

statutory obligation to provide for Butler’s criminal defense. First, the

county asserts that Butler was not a “county officer” entitled to a defense

under the statute.    Second, the county argues that Butler was not a

party to nor did he defend the underlying action in his official capacity,

as the statute requires. Instead, the county argues that Butler defended
himself in the criminal case in his personal capacity. Third, the county

maintains that even if Butler was statutorily entitled to a criminal

defense, he waived such a defense by failing to obtain court approval of

his counsel, contrary to the provisions of Iowa Code section 331.759.

The county asserts section 331.759 requires court approval of an

appointment of other counsel when the county attorney is unable to

conduct the defense because of a conflict.
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      Butler’s attorneys, however, maintain that the county in the

stipulation of facts admitted that Butler “was acting within his official

capacity as an officer for Shelby County.” As a result, Butler’s attorneys

assert that the County is precluded from claiming that Butler was not a

“county officer” for the purposes of Iowa Code section 331.756(6) or that

he was not acting within the scope of his official capacity at the time of

the incident. In any event, Butler’s attorneys argue that Butler should

be considered a “county officer” under Iowa Code section 331.756(6)

because Butler was appointed as a deputy sheriff under Iowa Code

section 331.903, a provision which is found in a division of the Iowa

Code entitled “County Officers.”

      The attorneys further argue that even if Butler cannot be

considered a “county officer,” he, nevertheless, is entitled to recover his

defense fees and costs because the county has an “interest” in the

criminal proceeding. Butler’s attorneys argue that because the deputy

was acting in his official capacity at the time of the incident, the county

is greatly interested in the matter. An adverse finding against a peace

officer, the attorneys argue, would harm the public regard for law

enforcement that is essential to maintain the peace.

      On the failure to obtain court approval under Iowa Code section

331.759, Butler’s attorneys maintain that the burden of statutory
compliance rested with the county, and not with Butler.         When the

county attorney withdrew from the proceeding, the county should have

sought court approval for the employment of outside counsel to defend

Butler. If the county had followed the statutory procedure, the attorneys

argue, the court likely would have appointed his chosen counsel. As a

result, Butler’s attorneys argue that equitable principles dictate that the
                                             6

county should pay for Butler’s legal defense even though court approval

was not obtained.

       At the outset, we conclude that there is substantial question as to

whether Butler is a “county officer” under the statute. Compare Seeley v.

Bd. of County Comm’rs for La Plata County, Colo., 654 F. Supp. 1309,

1313 (D. Colo. 1987) (holding that a deputy sheriff is not a “county

officer” either under the state constitution or code), and Employees Ret.

Sys. v. Lewis, 136 S.E.2d 518, 520–21 (Ga. Ct. App 1964) (holding that

deputy sheriffs are “public officers” but not “county officers”), with In re

Uterhart, 257 N.Y.S. 348, 348 (N.Y. Sup. Ct. 1927) (holding deputy

sheriffs to be county officers under relevant statute). Iowa Code chapter

331 contains a division entitled “County Officers” and lists the county

attorney, county auditor, county treasurer, county recorder, and county

sheriff.   Iowa Code §§ 331.751, 331.501, 331.551, 331.601, 331.651.

The county argues this context establishes that the term “county officer”

is a term of art used to describe the public officers of the county who to

some degree exercise sovereign power. Hegeman v. Kelch, 666 N.W.2d

531, 534 (Iowa 2003); State v. Spaulding, 102 Iowa 639, 649–50, 72 N.W.

288, 291 (1897). Whether the issue was preserved at trial, however, is

clouded by the stipulation in which the parties ambiguously agreed that

Butler was acting in his official capacity as “an officer for Shelby County”
and by the failure of the county to address the issue in its briefing before

the district court.

       It is not necessary, however, to address Butler’s status as a county

officer1 as he fails to meet an additional requirement in Iowa Code
section 331.756(6). Specifically, Iowa Code section 331.756(6) requires

that the county defend county officers only where the county officers are

       1The   court’s decision also makes it unnecessary to decide the issue of waiver.
                                        7

parties or interested “in actions or proceedings” in their official capacity.

Because Butler was not defending in the underlying criminal action or

proceeding in his official capacity, the claim of Butlers’ attorneys fails in

this case.

      The     attorneys   erroneously       assert    that    Iowa   Code   section

331.756(6) gives rise to an obligation to provide a defense for all acts or

omissions of an officer while acting within the scope of the officer’s

duties. This kind of municipal obligation is created with respect to civil

claims   by    the   municipal   tort   claims       act,    which   provides   that

municipalities generally have a duty to defend and indemnify municipal

officers for any tort claim or demand “arising out of an alleged act or

omission occurring within the scope of their employment or duties.”

Iowa Code § 670.8.        Iowa Code section 331.756(6) uses distinctly

different language. It does not provide for a defense or indemnification

with respect to “acts or omissions” arising within the scope of

employment, but instead limits the duty to defend to “actions and

proceedings” where the county officer is a party or interested in his or

her official capacity. See In re Roofner’s Appeal, 81. Pa. Super. 482, 482

(Pa. Super. Ct. 1923) (holding that statute authorizing hiring of attorney

limited “to those matters” in which the municipality has some official

duty or which affects its interests).
      In determining whether a public officer is defending “in the actions

or proceedings” in his or her official capacity, the case of Bartel v.

Johnson County, 322 N.W.2d 901 (Iowa Ct. App. 1982), is instructive. In

Bartel, a sitting county supervisor mounted a successful defense to a

challenge to his qualifications to hold office. 322 N.W.2d at 903. The

Bartel court held that the county supervisor was not defending “the

action” in his official capacity, but rather acted in his personal capacity
                                      8

for his personal benefit even though the case arguably arose from acts

taken in his official capacity. Id. at 904.

      A similar analysis applies where a public officer is a defendant in a

criminal action. In this case, Butler was defending himself in a criminal

matter.     Unlike in an action brought against the county treasurer or

county auditor where the county official is named in the litigation as the

responsible county official, Butler in the underlying criminal action was

not acting as the representative or agent of the county. His goal was to

avoid criminal sanctions personal as to him. The defense in the criminal

action was not “in his official capacity” but in his individual capacity for

his own benefit. Id. at 903–04 (citing United States v. Waylyn Corp., 130

F. Supp. 783, 786 (D.P.R. 1955) (noting that the phrase “in his official

capacity” means only his capacity when acting for and in behalf of the

county)).

      Butler’s attorneys zealously argue that because the parties in this

case stipulated that Butler was acting within the scope of his official

capacity as an officer of Shelby County at the time of the incident, his

attorneys’ fees should be paid under the statute.        The fact that the

underlying incident arose in the officer’s official capacity, however, is

distinct from the issue of whether the officer is defending in “the actions

or proceedings” in his official capacity.       Because Butler was not
defending in “the actions or proceedings” in his official capacity, we hold

that under Iowa Code section 331.756(6), Butler is not entitled to a

defense at the county’s expense. Id. at 904.

      We also reject the alternative argument that the county was

“interested” in the criminal proceeding, thereby mandating that the

county defend him under Iowa Code section 331.756(6).          The statute

provides that the county must defend in “actions or proceedings” in
                                     9

which the county is “a party or is interested.”      In a statutory context

expressly dealing with legal proceedings, the term “interested” refers to a

cognizable legal interest. See Birkhofer ex rel. Johnannsen v. Birkhofer,

610 N.W.2d 844, 847 (Iowa 2000) (“ ‘One interested in an action is one

who is interested in the outcome or result thereof because he has a legal

right which will be directly affected thereby or a legal liability which will

be directly enlarged or diminished by the judgment or decree therein.’ ”

(quoting In re J.R., 315 N.W.2d 750, 752 (Iowa 1982))); Black’s Law

Dictionary 1154 (8th ed. 2004) (defining “interested party” as a party

“who has a recognizable stake (and therefore standing) in the matter”).

      The asserted “interest” of Shelby County does not rise to a legal

interest in the criminal proceeding.       The purported public relations

benefit of the vindication of a law enforcement officer does not rise to a

legal interest under the statute. Further, while Butler’s attorneys claim

that a verdict against Butler would increase Shelby County’s exposure to

civil liability, such an indirect interest is not sufficient to give Shelby

County standing to litigate in the criminal proceeding and would directly

arise only in a subsequent civil action.

      Our interpretation of Iowa Code section 331.756(6) is supported by

the fact that at common law, public officials were not entitled to

mandatory reimbursement of fees resulting from criminal prosecutions
absent express statutory authorization. Hall v. Thompson, 669 S.W.2d

905, 906–07 (Ark. 1984); Guerine v. City of Northlake, 274 N.E.2d 625,

626 (Ill. App. Ct. 1971); Zimmer v. Town of Brookhaven, 678 N.Y.S.2d

377, 380 (N.Y. App. Div. 1998).      It is improbable that the legislature

intended to significantly rework the common law through the language in

the statute.   Indeed, unlike Iowa, a number of states have expressly

overridden the common law approach through clear and unambiguous
                                    10

language,   usually   under   limited    circumstances   and   often   on   a

discretionary rather than mandatory basis.        See, e.g., Cal. Gov’t Code

§ 995.8 (2007); Conn. Gen. Stat. § 53–39a (2007); Fla. Stat. § 111.065(3)

(2007); 5 Ill. Comp. Stat. 350/2 (2007); Kan. Stat. Ann. § 75–6108

(2006); Minn. Stat. § 3.736(9a) (2007); N.J. Rev. Stat. § 40A:14–155

(2007); N.C. Gen. Stat. § 143–300.4 (2007); Ohio Rev. Code Ann. §§ 9.87,

109.36–366 (2007); 42 Pa. Cons. Stat. Ann. § 8525 (2007); Utah Stat.

Ann. § 63–30a-2 (2007); Wis. Stat. §§ 165.25(6), 895.46 (2007). In order

to require Iowa governments to defend or reimburse public officials in

criminal proceedings, clear and direct language is required to overcome

the traditional approach. See Triplett v. Town of Oxford, 791 N.E.2d at

316 (Mass. 2003) (noting that the legislature uses clear language to

indemnify public employee for legal fees and costs incurred in defending

against criminal charges); Monti v. Warwick Sch. Comm., 554 A.2d 638,

640 (R.I. 1989) (holding indemnification statute does not apply to

criminal proceedings without clear indication).

      We recognize that there may be policy considerations that might

support payment of attorneys’ fees and costs of law enforcement officers

incurred in the successful defense of criminal actions arising out of acts

or omissions within the scope of their authority. The financial burden of

a successful defense against criminal charges, as this case demonstrates,
can be substantial.   Triplett, 791 N.E.2d at 316 (recognizing financial

burdens but refusing to extend municipal duty to defend to criminal

cases absent legislative enactment); Wassef v. State, 414 N.Y.S.2d 262,

265 (N.Y. Ct. Cl. 1979) (same). In addition, it has been suggested that

police officers might be discouraged from effectively pursuing their duties

if they were forced to provide their own defense in criminal actions. Van

Horn v. City of Trenton, 404 A.2d 615, 619 (N.J. 1979). Butler’s attorneys
                                    11

also advance the argument that the morale of law enforcement officers

would suffer if they are denied financial support when they are charged

criminally over mishaps that occur in the line of duty, and that recruiting

qualified officers would be impaired by the lack of governmental support

when unfortunate incidents occur.

      On the other hand, it can be argued that payment of attorneys’

fees and costs even in cases of successful criminal defenses could

encourage law enforcement officers to engage in undesirably risky

behavior.   Snowden v. Anne Arundel County, 456 A.2d 380, 382 (Md.

1983) (citing argument that reimbursement of criminal expenses even of

acquitted public official could make an officer less inclined to exercise

proper care and restraint).     Further, providing a defense for public

officers charged with criminal misconduct would create an anomalous

situation where the public pays for both the cost of prosecution and the

cost of defense even where the defendant is not indigent.       Ordinarily

nonindigent private parties who are forced to undergo criminal

proceedings are required to pay for their defense, and it can be

maintained that law enforcement officers are not entitled to different

treatment. Finally, it can be argued that the threat of shifting defense

costs onto government in the event of an unsuccessful prosecution would

unduly dampen the enforcement of criminal laws against public officials,
a perverse result in this era of governmental distrust.

      Our role in this case, however, is simply to apply existing law to

the undisputed facts. Unlike other jurisdictions, the Iowa legislature has

not chosen to enact legislation requiring local government to provide a

defense for county officers in criminal matters even where the underlying

act or omission is within the scope of employment and the officer is

acquitted on the underlying charge.           Whether there are policy
                                     12

considerations sufficient to justify a change in current law is a legislative

matter, about which we express no opinion.

      We also express no opinion on the issue of whether Shelby County,

in its discretion, could voluntarily elect to pay some or all of Butler’s

expenses.    See Snowden, 456 A.2d at 380 (upholding ordinance

authorizing creation of fund to pay legal expenses incurred by police and

fire personnel for civil or criminal offenses arising out of employment);

Sonnenberg v. Farmington Twp., 197 N.W.2d 853 (Mich. Ct. App. 1972)

(holding that municipality in its discretion may indemnify police officers

for expenses incurred defending criminal charges that arose out of

employment). The issue of whether the county has such discretion is not

raised in this appeal. We only hold that Shelby County, under Iowa Code

section 331.756(6), has no mandatory obligation to pay the claim

presented.

      IV. Conclusion.

      For the reasons expressed above, we hold that under Iowa Code

section 331.756(6), Shelby County is not required to pay the fees and

costs incurred by Butler in his criminal defense.         As a result, the

judgment of the district court is reversed.

      REVERSED.

      All justices concur except Larson, J., who takes no part.
