Justices to decide whether victims will pay abuser’s lawyer

By Andrea Lannom
CharlestDaily Mail
April 22, 2015

http://www.charlestondailymail.com/article/20150422/DM02/150429726

West Virginia Supreme Court justices will decide whether victims will have to pay a more than $20,000 legal bill for what they argue is civil defense for a man convicted of sexually abusing them.

In this case, filed in circuit court in Berkeley County, minor victims accuse the church and other people related to the church of facilitating abuses by Christopher Michael Jensen, 23. Jensen’s father was a high priest and high councilor of the West Virginia Stake and his mother was president of the church’s relief society at the time.

The lawsuit alleged Jensen’s parents and other members knew about Jensen before he raped a 3-year-old and 4-year-old boy, discussing abuses of minors by Jensen at a meeting of the West Virginia Stake High Council.

The lawsuit alleged Jensen’s mother suggested church members hire him as a babysitter. Jensen was charged in 2012 when one of the children assaulted in 2007 brought the abuse to his parents. Jensen was convicted on those charges in 2013 and is currently serving a 35- to 75-year sentence on two counts of sex abuse by a guardian or person in a position of trust and one count of first-degree sexual assault at Mt. Olive Correctional Center.

Church defendants moved to appoint Kirk Bottner as guardian ad litem, to represent Jensen’s interests. Because Jensen is a prisoner, he couldn’t receive the civil complaint. So, a guardian ad litem, which is appointed to people who can’t competently interact with the legal system, was needed.

On appeal, plaintiffs argue they wanted the guardian ad litem’s role to be limited but say he has been acting as a defense lawyer. In Wednesday’s hearing, Justice Allen Loughry asked attorneys how a $46,000 bill could be racked up when Jensen attended about three out of 80 deposition hearings.

Carl Kravitz, who represents nine children alleging sexual abuse by Jensen between 2007 and 2012, said the reason the bill is so high is that Bottner is acting as a defense attorney. He said this is not a proper function of the guardian ad litem.

However, Bottner argued he is not acting as a defense attorney but is representing his client’s interests. He said the reason the bill is so high is the amount of documents in the case and the amount of time to review them to see if they relate to his client.

Kravitz said Bottner attended depositions and advised Jensen to take the 5th Amendment in those hearings. He also said Bottner filed various motions.

“None of these are functions a guardian ad litem would perform unless there was a circumstance where this court created another exception to the rule of appointing counsel in civil cases,” Kravitz said.

Justice Brent Benjamin asked Kravitz why another avenue wasn’t pursued, such as appointing a committee to look after Jensen’s interests. Kravitz said Jensen doesn’t have assets to protect.

“Even if he was not indigent, it’s highly improper to say a victim pays fees for a guy who went to prison for abusing you. It’s absurd,” Justice Margaret Workman said.

Kravitz said, “it is absurd and it’s an outrage.”

Bottner said he was appointed by the judge in February 2014 and submitted an interim bill because he thought he may have to attend a month-long trial, taking him away from his law office.

“We’re a small law firm. It can’t survive me not being in the office for a month. I have six employees and have to pay them,” he said.

Justice Menis Ketchum asked him when a guardian ad litem provides defense on a civil action.

“That is not my mission,” Bottner said, noting Jensen filed an answer contesting the allegations. He said he has been minimally involved in the case.

Justice Margaret Workman asked what he thought his role was in this case.

“To protect his fundamental rights ... whether he has an estate in the future is up in the air,” he said.

Benjamin asked why there would be “fees being generated to protect something essentially worth nothing,” referring to Jensen’s assets. Bottner responded that the judge appointed him to protect Jensen’s rights.

He also said it’s not a final decision and the judge said each party should pay half subject to reassessment.

“This is $46,000 of fees and it’s early on. It could be half a million in fees. The other side may drop out of fear that they’re on the hook,” Loughry said.

William Powell, representing the church defendants, said a guardian ad litem is not a potted plant and has to protect the interest of their ward. He said the judge ordered the guardian ad litem to protect their interests whatever that may be.

“It’s bothered me since I read it,” Justice Menis Ketchum said. “The plaintiffs sued him and the judge says, ‘Plaintiffs, you sued him; now pay his lawyer.’”

He said the guardian ad litem doesn’t represent him but represents his interest and he may or may not have an estate or assets. He also said Jensen could have additional criminal penalties depending on the facts of the case.

The case was submitted for review.