Justices: Court wrong to make childen pay rapist's legal fees

By Kyla Asbury | Jun 22, 2015

CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that a circuit court cannot force the plaintiffs in a rape case to pay for legal fees associated with him.

In the June 16 memorandum decision, the majority concluded that Berkeley Circuit Judge Gray Silver III's Dec. 9 order, which required 12 children and 11 parents from six families to bear 0ne-half of the costs associated with the guardian ad litem appointed to Christopher Michael Jensen while he was incarcerated.

Justices Robin Jean Davis, Brent D. Benjamin and Menis E. Ketchum were the majority. Justice Allen H. Loughry Jr. authored a concurring opinion, with Chief Justice Margaret L. Workman joining him.

"Upon consideration of the applicable standards of review and the record presented, we conclude that the circuit court's December 9, 2014, order is clearly erroneous as a matter of law and that the requested writ of prohibition should be moulded and granted," the majority opinion states.

Jensen was convicted in February 2013 of three sex offenses against two children, who were 3 and 4 years old when the offenses occurred in 2007. Jensen was also 16 years old at the time the offenses occurred.

On appeal, the state Supreme Court affirmed Jensen's convictions, for which he was sentences as an adult to an aggregate term of imprisonment of 35 to 75 years.

Jensen, his parents, his victims and his victims' parents all belonged to the Church of Jesus Christ of Latter-day Saints, within which they were members of the Martinsburg Stake. In the church, a stake is a geographically homogenous group of wards, or local congregations.

On Sept. 16, 2013, the two victims in the criminal proceedings, their parents and five other families in the stake filed under seal a civil action against Jensen, Jensen's parents, the church, a pair of corporate church entities, the stake president and the bishop of the Hedgesville Ward.

The plaintiffs alleged that Jensen had sexually abused as many as 12 children and on several occasions, another child had been forced to watch his younger brother be abused by Jensen.

A few weeks after litigation commenced, the plaintiffs moved the circuit court to appoint a guardian ad litem for Jensen, so that he could be legally served with process and on Oct. 31, 2013, the circuit court appointed Kirk Bottner as Jensen's guardian ad litem.

The Supreme Court stated in its decision that the circuit court’s order is clearly erroneous in two ways: First, it requires Bottner to perform legal services that are not contemplated by law, and second, it orders the plaintiffs to shoulder a portion of Bottner’s fees and costs.

"Furthermore, we recognize that Mr. Bottner was appointed at the moving defendants' instance over the objection of the plaintiffs, who, bearing the brunt of his unauthorized advocacy, continued to resist his appointment through motion, and ultimately, initiated this proceeding resulting in his discharge," the decision states.

Under the circumstances, it would be inequitable to hold the plaintiffs responsible for any portion of Bottner’s compensation for services performed after his appointment by the circuit court’s order of Feb. 27, 2014. That burden shall instead fall upon the moving defendants, subject to the circuit court’s approval of Bottner’s invoices using the same evaluative criteria as any award of attorney fees.

"While the appointment of Mr. Bottner as guardian ad litem did not constitute clear error, the circuit court’s order of December 9, 2014, insofar as it effectively appointed Mr. Bottner as Jensen’s attorney ad litem, was clearly erroneous as a matter of law," the decision states. "Mr. Bottner is therefore discharged from his effective appointment as attorney ad litem in the underlying civil action."

Additionally, the circuit court is prohibited from enforcing its order insofar as it purports to impose any liability on the plaintiffs for Bottner's fees and costs in the service of Jensen.

"The majority’s conclusion that the circuit court 'inequitably' required the plaintiffs to pay the guardian ad litem fees incurred in defense of their accused molester may be one of the more remarkable understatements offered by this court," Loughry's opinion stated. "I cannot fathom how the circuit court justified requiring the plaintiffs to contribute to their alleged, and for some, convicted, molester’s defense. There is no question that the apportionment of fees was error."

Loughry stated that the error was heavily exacerbated by the circuit court's abject failure to define the proper scope of the guardian ad litem’s duties.

"It is on this issue that I write separately to ensure that our circuit courts are not haphazardly enabling defenses for every incarcerated criminal who demands a defense attorney in a civil matter, where a defense is meritless or pointless, or access to the courts is otherwise available," he stated.

Loughry stated that, as a matter of prudence, he would suggest to the circuit court that the precepts contained in this concurrence regarding the proper scope of a guardian ad litem's duties should be applied.

"On remand, I would recommend that the circuit court determine what remains to be accomplished in this action and what the guardian ad litem's necessary role in those matters will be, if any, and enter an order directing him accordingly," he stated. "In such order, I would also recommend that the circuit court revisit the fee schedule previously set by Mr. Bottner and establish a new schedule that adheres to the directives herein regarding assessment of such fees."

The petitioners were represented by Robert P. Fitzsimmons, Brent E. Wear, Justin J. Wiater and Carl F. Kravitz.

W.Va. Supreme Court of Appeals case number: 15-0029

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