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 
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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 
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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. 
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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 
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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 
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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 
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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 
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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 
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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.