David E. Richter And Lori Falk-goss Vs. Shelby County, Iowa

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.