Supreme Court Justices “couldn’t Fathom” Circuit Court’s Order to Have Children Pay Rapist’s Legal Fees

By Tyler Bell
Charleston Daily Mail
July 16, 2015

http://www.charlestondailymail.com/article/20150622/DM02/150629857

The West Virginia Supreme Court concurred unanimously last Tuesday to support a writ of prohibition submitted by the counsel of children being required to foot half the bill for their rapist’s legal expenses in Berkeley County.

The 13-page decision filed by the state’s highest court suggests Judge Gray Silver III, of the Berkeley County Circuit Court, was entirely erroneous in his decision to force the 12 children and 11 parents to foot the legal bills for convicted rapist Christopher Michael Jensen, 23.

“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,” Justice Allen Loughry II and Chief Justice Margaret Workman wrote in a concurring opinion.

“I cannot fathom how the circuit court justified requiring the plaintiffs to contribute to their alleged, and for some, convicted, molester’s defense,” the justices continued. “There is no question that the apportionment of fees was error. Moreover, this error was heavily exacerbated by the circuit court’s abject failure to define the proper scope of the guardian ad litem’s duties.”

Justices Robin Davis, Brent Benjamin and Menis Ketchum wrote the majority opinion.

The Daily Mail detailed the original writ of prohibition and civil lawsuit April 22.

In short, a civil lawsuit involving the children and their parents was filed against the Church of Jesus Christ of Latter-Day Saints (the Mormon head church), Jensen, his parents — high-ranking members of the church during the rapes — and other members of the church in Berkeley County. The lawsuit suggests the church suppressed information about Jensen’s “proclivities,” endangering the children.

Jensen was convicted and sentenced to 35 to 75 years incarceration in 2013 for raping two children in 2007, as well as a third count of sexually assaulting a woman around the same time who was unrelated to the civil case. According to now-sealed court documents, Jensen assaulted the children while he was babysitting them, apparently after being recommended as a babysitter by his mother.

The civil lawsuit was launched shortly after Jensen’s 2013 conviction, and the Supreme Court decision is concerned with the appointment of Kirk Bottner, a lawyer, as a guardian ad litem for Jensen. The guardian ad litem is legal role with little power other than to sign documents and stand in as a legal avatar for indigent persons, such as children or convicts.

The writ of prohibition suggested Bottner was approaching his duties as an attorney, instead of a simple guardian ad litem. It noted occasions in which Bottner acted in capacity as an attorney, by providing legal advice to Jensen, attending depositions and even filing motions to quash evidence.

The evidence in question regards Jensen’s juvenile records in Utah, home state of the Mormon Church, the decision states, where Jensen pleaded guilty to two counts of lewdness involving a child in 2005, two years before he raped children in West Virginia.

Obviously, information like that could be damaging to the defense in the civil case.

Bottner moving to quash the motion and his other actions were vastly outside the realm of his responsibility, the decision stated.

“By attending discovery depositions, instructing Jensen not to answer questions under oath and sponsoring motions in opposition to the plaintiffs’ attempts to gather evidence,” the justices wrote, “Mr. Bottner assumed a role as Jensen’s legal representative far beyond the modest duties expected of a guardian ad litem.”

The justices also wrote that Bottner’s fees were egregiously outside the legal compensation schedule for guardians ad litem.

“Compensation is paid at $100 per hour for time spent in court and $80 per otherwise, capped at $3,000 except as may be approved by the Court in an exceptional case,” the justices wrote. “Such rate and cap parameters in no way suggest that the proper role of a guardian ad litem is to provide full-blown legal representation.”

“I don’t know where anybody would get the idea I’m acting as his attorney,” Bottner said during an interview for the prior story. He said he only got involved when the plaintiffs’ actions threatened to violate his client’s rights.

The Supreme Court disagreed.

“Mr. Bottner’s performance of duties attendant to the position of attorney ad litem was therefore manifestly in derogation of State law,” the justices wrote. “By ordering that Mr. Bottner continue to effectively serve as Jensen’s attorney ad litem, the circuit court’s order of December 9, 2014, is clearly erroneous as a matter of law.”

Bottner won’t get a dime from the plaintiffs, but that doesn’t mean he won’t get paid.

“That burden shall instead fall upon the moving defendants,” the justices wrote, “subject to the circuit court’s approval of Mr. Bottner’s invoices using the same evaluative criteria as any award of attorney fees.”

This means the defendants, who stood behind Bottner’s increased roll in opposition to the plaintiffs, are now responsible for the at least $46,000 in fees Bottner had accrued as of January. Because the writ of prohibition also suggested Bottner’s role be limited or fully defined, his services have been terminated as part of the decision.

“Mr. Bottner is therefore discharged from his effective appointment as attorney ad litem in the underlying civil action,” the justices wrote. “Additionally, the circuit court is prohibited from enforcing its order insofar as it purports to impose any liability on the plaintiffs for Mr. Bottner’s fees and costs in the service of Jensen.”

While this matter has been settled, a civil lawsuit is still active. It goes to trial Oct. 13.

Contact writer Tyler Bell at 304-348-4850 or email him at tyler.bell@dailymailwv.com. Follow him at twitter.com/Tyler_Bell87.