SER Jane Doe-1 v. Hon. Gray Silver III, Judge

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED

June 16, 2015

State of West Virginia ex rel. Jane Doe-1 et al., released at 3:00 p.m.

RORY L. PERRY II, CLERK

Petitioners SUPREME COURT OF APPEALS

OF WEST VIRGINIA

vs) No. 15-0029 (Berkeley County 13-C-656)

The Honorable Gray Silver III, Judge of the Circuit Court of Berkeley County;

Corporation of the President of the Church of Jesus Christ of Latter-Day Saints;

Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day

Saints; Steven Grow; Donald Fishel; Christopher Jensen; Sandralee Jensen;

Unnamed Defendant-1; and Kirk H. Bottner,

Respondents

MEMORANDUM DECISION

In this original proceeding, the petitioners and plaintiffs below, twelve children

and eleven parents from six families, by counsel Robert P. Fitzsimmons, Brent E. Wear,

Justin J. Wiater and Carl F. Kravitz, petition to prohibit the circuit court from enforcing

its order of December 9, 2014. The circuit court’s order adopted the recommended order

and report of the discovery commissioner that the guardian ad litem appointed for

incarcerated defendant Michael Jensen should continue to serve, in effect, as Jensen’s

attorney ad litem. The order also required that the plaintiffs bear one-half of the costs

associated with that appointment. The respondents, defendants below, Corporation of the

President of the Church of Jesus Christ, Corporation of Presiding Bishop of the Church of

Jesus Christ of Latter-day Saints, Steven Grow, and Donald Fishel, by counsel William J.

Powell and Alan E. Kraus, respondents Christopher Jensen and Sandralee Jensen, by

counsel John J. Polak, Unnamed Defendant-1, a respondent, by counsel Joseph R.

Ferretti, and respondent Kirk H. Bottner, appearing pro se, ask this Court to deny the

writ.

This Court has considered the parties’ briefs, oral argument, and the record on

appeal. Upon our 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. Because this Court finds no substantial question of law, a memorandum

decision granting and moulding the requested extraordinary writ is appropriate under

Rule 21 of the West Virginia Rules of Appellate Procedure.

1

Factual and Procedural Background

Jensen was convicted by a jury in February 2013 of three sex offenses against two

brothers—aged three and four—that occurred in 2007, when Jensen was sixteen years

old. On appeal, we affirmed Jensen’s convictions, see State v. Jensen, No. 13-1088, 2014

WL 2681229 (W. Va. June 13, 2014), for which he was sentenced as an adult to an

aggregate term of imprisonment of thirty-five to seventy-five years. Jensen, his parents,

his victims, and his victims’ parents all belonged to the Church of Jesus Christ of Latter-

day Saints (the “Church”), 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 September 16, 2013, the two victims in the criminal proceedings, their parents,

and five other families in the Martinsburg Stake filed under seal a civil action against

Jensen, Jensen’s parents, the Church, a pair of corporate Church entities,1 the Stake

President, and the Bishop of the Hedgesville Ward. The plaintiffs alleged therein that

Jensen had sexually abused as many as twelve children, and that, on several occasions,

another child had been forced to watch his younger brother be abused by Jensen.

Thereafter, the parties entered into a stipulation dismissing the Church, an unincorporated

association, without prejudice. The operative Amended Complaint of February 4, 2014,

retained the initial defendants other than the Church, and it added another, unnamed

defendant who was formerly a member of the Martinsburg Stake. The Amended

Complaint asserts myriad claims for, inter alia, negligence, fraud, intentional infliction of

emotional distress, and civil conspiracy, all stemming from the Stake’s and the Church’s

purported indifference to and complicity in Jensen’s sexual predations. The plaintiffs

seek compensatory and punitive damages.

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.2

1

Specifically, the corporate entities defending the interests of the national Church

are the Corporation of the President of the Church of Jesus Christ of Latter-day Saints

and the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day

Saints.

2

West Virginia Rule of Civil Procedure 4(d)(4) provides for service on

incarcerated convicts “by delivering a copy of the summons and complaint to that

person’s committee, guardian, or like fiduciary resident in the State.” The committee

referred to in Rule 4(d)(4) is a person appointed by a county commission on the motion

of an interested party who may take possession of and manage a convict’s estate, real and

personal, “until the convict is discharged from confinement or dies.” W. Va. Code § 28­

5-33 (1982).

(continued. . .)

2

A guardian is generally appointed by a court of law to exercise domain over the affairs of

an incompetent or incapacitated person, depending on the specific grant of authority. 3 At

the extremes, a court may designate a guardian as the incompetent’s legal surrogate for

all purposes, or it may limit a guardian to stand in for the incompetent in particular

litigation by appointing him or her ad litem, that is, for the suit. See Black’s Law

Dictionary 725 (8th ed. 2004) (noting that a guardian “ad litem” is appointed by a court

for the express purpose of “appear[ing] in a lawsuit”). In West Virginia, a guardian ad

litem is required to be “a discreet and competent attorney at law.” W. Va. R. Civ. P.

17(c).

The circuit court entered an order on October 31, 2013, appointing attorney Kirk

Bottner as Jensen’s guardian ad litem “for the purpose of service of process and for such

other purposes as contemplated by the Rules of Civil Procedure.” The order also set forth

the circuit judge’s handwritten addendum that “[t]he Plaintiffs agree to pay the

reasonable attorney fees and expenses of the Guardian ad litem subject to other

individuals or entities being ordered to do so by the Court.” Service on Jensen was

thereby perfected by delivery of process to Mr. Bottner, the culmination of which appears

to have terminated the latter’s appointment in the eyes of the parties. But not long

thereafter, on January 23, 2014, the corporate Church entities and the Stake and Ward

officials moved to once again appoint Mr. Bottner to “represent the interests” of Jensen

as guardian ad litem.

In their motion, the four moving defendants explained that the plaintiffs had

served notice of Jensen’s deposition, evidencing the plaintiffs’ intent to continue the suit

against him and necessitating the protections provided by law. The moving defendants

cited our decision in Craigo v. Marshall, 175 W. Va. 72, 331 S.E.2d 510 (1985), in

syllabus point 2 of which we held that, absent an express written waiver of the right to a

committee or a guardian ad litem, a lawsuit cannot be directly maintained against an

incarcerated convict. Accord syl. pt. 1, State ex rel. Lawson v. Wilkes, 202 W. Va. 34,

501 S.E.2d 470 (1998); see also W. Va. R. Civ. P. 55(b)(2) (barring default judgments

against convicts and other incompetents absent an appearance on the defendant’s behalf

“by a guardian, guardian ad litem, committee, conservator, curator, or other

representative”).

3

See, e.g., Matter of Estate of Kutchins, 523 N.E.2d 1025, 1028 (Ct. App. Ill.

1988) (observing one purpose of appointing a guardian “is to protect [an] incompetent

from personally wasting his estate or allowing others to do so,” and instructing that no

one else may act generally on the incompetent’s behalf “without express authority or

appointment”).

3

In response to the motion, the plaintiffs agreed that a guardian ad litem should be

appointed “for the limited purposes of accepting service and notices” and to protect

Jensen’s “interests in this civil action to the extent events here bear on or impact his

criminal case.” The plaintiffs conditioned their approval, however, on the appointee

performing the “normal” functions expected of a guardian ad litem, “as opposed to being

appointed as defense counsel for . . . Jensen in this civil action,” and on not being held

liable for any costs thereby incurred. In that vein, the plaintiffs rejected the moving

defendants’ proposal that the opposing sides bear equal responsibility for the

compensation paid the guardian ad litem.

The circuit court entered an order on February 27, 2014, granting the motion and

reappointing Mr. Bottner as guardian ad litem. In so doing, the court found that both

sides “desire the appointment of a Guardian ad Litem; that [otherwise] Michael Jensen

would be deemed incompetent; and his best interest and the best interests of all parties

would not be served.” The circuit court acknowledged the lack of consensus on

compensation, reciting that the parties had requested to proceed in accordance with the

West Virginia Trial Court Rules, which, under certain conditions, provide for payment of

a guardian ad litem from Supreme Court funds. See T.C.R. 21.05(c) (authorizing Court

to pay for guardian ad litem appointed on behalf of “an incarcerated person who is

indigent”). Although Trial Court Rule 21.06 clearly sets forth the procedure for

requesting payment from the Supreme Court, i.e., “on forms provided by the

Administrative Director of the Court,” the circuit court expressed its belief that it was

without authority to proceed in that fashion. The circuit court thus appointed Mr. Bottner

“for the purpose of representing [Jensen’s] interests in this civil action to allow this

matter to proceed.” The order directed that Mr. Bottner submit his invoices to the circuit

court “for review of reasonableness, [with] the payment thereof, if not agreed to by the

parties, to be resolved by a subsequent Order of this Court.”

Shortly after his appointment, Mr. Bottner attended the depositions of Jensen’s

trial counsel and of Jensen himself. The latter took place in April 2014 at Mount Olive

Correctional Complex in Fayette County, during the pendency of Jensen’s appeal in his

criminal proceeding. There, Mr. Bottner instructed Jensen not to answer certain

questions posed by plaintiffs’ counsel on the ground that he might incriminate himself.

On July 18, 2014, Mr. Bottner filed a motion to quash a subpoena served on a State

Police corporal who had been involved in the criminal investigation. The corporal,

prompted by counsel for the plaintiffs, had acquired Jensen’s juvenile records in Utah,

which included the details of Jensen’s 2005 guilty plea to two counts of lewdness

involving a child. After the records had been produced, Mr. Bottner moved for a

protective order to avoid having Jensen respond to requests for admissions relating to the

Utah offenses. On August 7, 2014, Mr. Bottner attended the corporal’s deposition and

that of a State Police colleague who had also been assigned to the Jensen investigation.

4

On September 30, 2014, the plaintiffs filed a “Motion to Limit and Define the

Role” of Mr. Bottner, seeking further to strike Jensen’s yet-pending motions to quash and

for a protective order. All three motions came on for hearing before the court-appointed

discovery commissioner on October 2, 2014. The commissioner indicated at the hearing

that he had discussed the motions with the circuit judge, and, noting that no committee

had yet been appointed, he conveyed the court’s thinking:

[I]t is anticipated that there will be an application to have [a]

committee appointed within a period of three months prior to any

abatement by the Court of this civil action, because we really don’t want it

abated. But in the interim, the guardian ad litem shall continue in full

capacity as he has been until such time as . . . a committee can be

appointed.

The legal obligation of the committee at that point in time is to

marshal the assets of the convict, which I would anticipate are going to be

zero. But in any event, either side is free to then make application to the

committee for reimbursement.

The Judge was anticipating that until such time as a committee gets

appointed . . . that Mr. Bottner’s expenses ought to be divided equally

between the plaintiff side and the defense side. In fact, he was anticipating

that Mr. Bottner might be in a position where he probably . . . ought to be

sending out an interim bill to try to get some compensation from somebody.

. . . [A]t the present Mr. Bottner is going to have to continue in his capacity

because the Judge feels that that’s necessary as an alternative to abating this

matter.

The plaintiffs voiced objections to the ruling, in response to which the

commissioner opined, “The difficulty is . . . the plaintiffs elected to proceed with the

direct action against a convict without securing a committee. . . . And the Court is now

faced with the prospect of trying to cover that in the interim without having to invoke the

abatement process.” The commissioner thereafter denied Jensen’s motion to quash as

moot, and he declined to rule on the motion for a protective order. The commissioner

noted that, if Jensen refused to answer the requests for admissions, the circuit court could

determine at trial whether the refusals would have any probative significance.

By his recommended order and report of November 10, 2014, the discovery

commissioner memorialized in writing his oral rulings, which, by its order of December

9, 2014, the circuit court summarily adopted in full over the plaintiffs’ exceptions. Mr.

Bottner subsequently submitted an invoice to the parties for fees and expenses from

February 26, 2014, through December 19, 2014. The invoice contained over 700 billable

entries, totaling $46,800.58. Of that amount, $44,075.00 was billed for 176.3 hours of

5

attorney fees at $250/hour, plus $2,725.58 for mileage, travel, and office expenses. On

January 13, 2015, the plaintiffs filed the instant petition seeking Mr. Bottner’s removal

and to prohibit enforcement of the December 9 order insofar as it purports to hold them

liable for one-half of the submitted fees and costs.

Standard of Review

We will grant a petition seeking a writ of prohibition “‘only to restrain inferior

courts from proceedings in causes over which they have no jurisdiction, or, in which,

having jurisdiction, they are exceeding their legitimate powers.’” Syl. pt. 3, in part, State

ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996) (quoting syl. pt. 1, in part,

Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953)). A petition for a writ of

prohibition “‘may not be used as a substitute for a petition for appeal or certiorari.’” Id.

(quoting Crawford) (alteration omitted). In Hoover, we set forth five factors to assist us

in determining whether a lower tribunal has exceeded its legitimate authority such that

we should exercise our discretion to grant extraordinary relief in prohibition:

(1) whether the party seeking the writ has no other adequate means, such as

direct appeal, to obtain the desired relief; (2) whether the petitioner will be

damaged or prejudiced in a way that is not correctable on appeal; (3)

whether the lower tribunal’s order is clearly erroneous as a matter of law;

(4) whether the lower tribunal’s order is an oft repeated error or manifests

persistent disregard for either procedural or substantive law; and (5)

whether the lower tribunal’s order raises new and important problems or

issues of law of first impression. These factors are general guidelines that

serve as a useful starting point for determining whether a discretionary writ

of prohibition should issue. Although all five factors need not be satisfied,

it is clear that the third factor, the existence of clear error as a matter of law,

should be given substantial weight.

Syl. pt. 4, in part, id.

Analysis

We observe that the first two Hoover factors are satisfied. The circuit court has

imposed on the plaintiffs more than $23,000 in fees and costs that are expected to be paid

sooner rather than later. In addition, it seems certain that the plaintiffs’ obligations under

the circuit court’s order will increase, perhaps substantially, before any appeal in the

underlying matter may ripen. If there be error in the circuit court’s rulings, either in the

appointment of Mr. Bottner or in allocating the responsibility for his compensation, then

postponing the correction of the error is likely to prove exceedingly problematic and

inconvenient for the parties. For example, monies paid to Mr. Bottner by the plaintiffs

may have to be disgorged, with insufficient assurance at the conclusion of a prolonged

6

trial and appellate process that such disgorgement would smoothly succeed or that

substitute recompense would follow immediately. Deferring our consideration of the

matter until appeal therefore poses an unacceptable risk of the eventual remedy proving

inadequate, such that the plaintiffs suffer damage or prejudice of a kind not readily

susceptible to amelioration.

Moreover, the circuit court’s order is clearly erroneous in two ways: First, it

requires Mr. Bottner to perform legal services that are not contemplated by our law, and

second, it orders the plaintiffs to shoulder a portion of Mr. Bottner’s fees and costs.

We begin by pointing out the obvious, that is, by recognizing that our enactments

requiring the appointment of a litigation proxy for an incompetent derive from traditional

due process concepts of notice and fairness. As prescribed by our federal and State

constitutions, the fundamental right of due process exists to protect persons against

arbitrary divestitures of life, liberty, or property. U.S. Const. amend. XIV, § 1 (providing

that no state shall “deprive any person of life, liberty, or property, without due process of

law”); W. Va. Const. art. III, § 10 (“No person shall be deprived of life, liberty, or

property, without due process of law, and the judgment of his peers.”). The essential

purpose of a civil action in which a money judgment is demanded is to deprive, insofar as

may be possible, the defendant of his property in an amount equivalent to the judgment.

Threshold protections commensurate with due process must therefore apply, even in the

case of an indigent convict with meager property and poor prospects for acquiring more.

The requisite protections, however, rise to nowhere near the level of appointing

counsel to defend the civil lawsuit without charge to the convict. See Craigo v. Hey, 176

W. Va. 514, 518–19, 345 S.E.2d 814, 818–19 (1986) (confirming that prisoners have no

right to defense counsel in an ordinary civil action, outside of traditional exceptions such

as proceedings involving divorce, termination of parental rights, determination of

paternity, or adjudication of insanity), overruled on other grounds by State ex rel.

Deblasio v. Jackson, 227 W. Va. 206, 707 S.E.2d 33 (2011). A convict with sufficient

resources and motivation to defend the asserted claims is entitled to hire legal

representation, or he or any interested party may cause the county commission to appoint

a committee, whom would thereby be empowered to retain counsel on behalf of the

convict.

Frequently, a convict will lack the necessary assets to obtain the services of a paid

committee or to hire an attorney. In such an instance, the county sheriff may be

appointed as committee. See W. Va. Code § 28-5-34 (1903). Among the sheriff’s duties

as committee are to appraise and account for the convict’s estate, see id. § 28-5-35, and to

“prosecute or defend” lawsuits as a placeholder for the convict, id. § 28-5-36. By

fulfilling those duties and responsibilities, the county sheriff affords the constitutional

modicum of process due an indigent convict.

7

There is no reason to believe that, in a similar situation, the duties of a duly

appointed guardian ad litem should be radically different from those thrust upon a

committee. Although service as a guardian ad litem is restricted to attorneys, it is clear

that Trial Court Rule 21, detailing the position’s appointment and compensation, is not

intended as a boon for lawyers. To qualify for payment from Supreme Court funds, a

guardian ad litem must be appointed on behalf of an incompetent who is indigent. See

T.C.R. 21.05. Compensation is paid at $100 per hour for time spent in court and $80 per

hour otherwise, capped at $3000 except as may be approved by the Court in an

exceptional case. See id. 21.06.4 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. Instead,

the Trial Court Rules instruct merely that “[a] guardian ad litem shall make a full and

independent investigation of the facts involved in the proceeding and make

recommendations to the court by testimony or in writing, unless otherwise ordered by the

court.” Id. 21.03.

By attending discovery depositions, instructing Jensen not to answer questions

under oath, and sponsoring motions in opposition to the plaintiffs’ attempts to gather

evidence, Mr. Bottner assumed a role as Jensen’s legal representative far beyond the

modest duties expected of a guardian ad litem. In that regard, Mr. Bottner acted as

Jensen’s attorney ad litem.5 West Virginia does not provide for the appointment of an

4

A guardian ad litem may also serve on a voluntary basis, or may receive payment

from a litigant with sufficient funds. See T.C.R. 21.02(a)–(b). In the latter instance, of

course, compensation may be paid in excess of the public rate. The extensive revisions to

Trial Court Rule 21 in 2005 amended the law as set forth in Quesinberry v. Quesinberry,

191 W. Va. 65, 443 S.E.2d 222 (1994). At the time of our Quesinberry decision, there

existed “neither a valid statute nor an appropriation for an expenditure providing

compensation to a lawyer appointed as a guardian ad litem for an incarcerated convict

named as a defendant in a civil action.” 191 W. Va. at 69, 443 S.E.2d at 226. We thus

concluded that the circuit court in that case lacked the authority to direct the

Administrative Director to pay guardian ad litem fees.

5

The distinction between a guardian ad litem and an attorney ad litem has been

explained thusly:

The role of the guardian ad litem . . . should be . . . to protect the child’s

interest and to gather and present facts for the court’s consideration. The

role of the attorney ad litem, however, should be that of any other

attorney—to represent and advocate the child’s interests before the court,

including the calling and cross-examining of witnesses, etc. The guardian

ad litem may testify; the attorney ad litem should not. The guardian ad

(continued. . .)

8

attorney ad litem to represent an incarcerated convict in a civil proceeding. Mr. Bottner’s

performance of duties attendant to the position of attorney ad litem was therefore

manifestly in derogation of State law. 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.

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. Under the circumstances, it

would be inequitable to hold the plaintiffs responsible for any portion of Mr. Bottner’s

compensation for services performed after his appointment by the circuit court’s order of

February 27, 2014.6 See Quesinberry v. Quesinberry, 191 W. Va. 65, 69 n.2, 443 S.E.2d

222, 226 n.2 (1994) (“Thus, when [a] . . . well-financed litigant crossclaims,

counterclaims, or otherwise joins an indigent to a lawsuit, the trial court has discretion to

require the party creating the problem that compels appointment of a guardian ad litem to

pay for such a guardian.”). That burden shall instead fall upon the moving defendants,

subject to the circuit court’s approval of Mr. Bottner’s invoices using the same evaluative

criteria as any award of attorney fees.

Conclusion

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. Mr.

Bottner is therefore discharged from his effective appointment as attorney ad litem in the

litem is guided by the child’s best interest, irrespective of the child’s

wishes; the attorney ad litem should advocate the wishes of the client.

Potter v. Paterson, No. E2013–01569–COA–R3–CV, 2014 WL 2442776 at *4 (Tenn. Ct.

App. May 28, 2014) (unpublished) (citation and internal quotation marks omitted).

Texas takes a similar view. See City of Houston v. Woods, 138 S.W.3d 574, 582 (Tex.

App. 2004) (explaining that “[a] guardian ad litem is not an attorney for the child, but an

officer appointed by the court to assist in properly protecting the child’s interests. An

attorney ad litem, on the other hand, performs the same services as any other attorney—

giving advice, doing research, and conducting litigation” (citations omitted)).

6

The record does not reflect that Mr. Bottner currently seeks payment for services

rendered prior to his appointment by the circuit court’s order of February 27, 2014.

9

underlying civil action.7 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.

Writ granted as moulded.

ISSUED: June 16, 2015

CONCURRED IN BY:

Justice Robin Jean Davis

Justice Brent D. Benjamin

Justice Menis E. Ketchum

CONCURRING AND WRITING SEPARATELY: Justice Allen H. Loughry II; joined

by Chief Justice Margaret L. Workman

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. 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. 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. 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.

Importantly, the appointment of a guardian ad litem for an incarcerated person is

not an automatic right:

Pursuant to W.V.R.C.P., Rule 17(c) [1978], the

appointment of a guardian ad litem for an incarcerated

convict in a civil action is not mandatory if the court can

reasonably order another appropriate remedy while the

convict remains under the legal disability of incarceration.

7

Pursuant to W. Va. Code §§ 28-5-33 to -36, we expect that Jensen or an

interested party to this matter will seek the appointment of a committee to represent

Jensen’s interests as an incarcerated defendant in this civil litigation.

10

There are several alternatives to appointment of a guardian ad

litem for indigent incarcerated defendants.

Syl. Pt. 2, in part, Quesinberry v. Quesinberry, 191 W.Va. 65, 443 S.E.2d 222 (1994)

(emphasis added). Through this syllabus point, the Court explains that a continuance, if

feasible, is a reasonable alternative to the appointment of a guardian ad litem that should

be considered. More importantly, however, Quesinberry mandates that the circuit court

utilize its discretion to determine the necessity of even appointing a guardian ad litem.

Syllabus point two further provides that “the court should determine whether a guardian

ad litem is essential for the protection of the incarcerated defendant’s rights under the

particular circumstances of the pending action.” Id. This syllabus point then directs the

circuit court to examine whether the prisoner is contesting the suit or if an adverse

judgment would “affect any present or future property rights” of the prisoner. Id.

Accordingly, before appointing a guardian ad litem to an incarcerated person, the circuit

court must examine, among other things, 1) the nature of the prisoner’s proposed defense,

2) the merits thereof, and 3) the resulting deprivation if the defense is unsuccessful.

Regarding the guardian ad litem’s duties after appointment, Trial Court Rule

21.03, entitled “Duties Generally,” provides that “[a] guardian ad litem shall make a full

and independent investigation of the facts involved in the proceeding and make

recommendations to the court by testimony or in writing, unless otherwise ordered by the

court.” (emphasis added). Because the lower court neither defined the scope of the

guardian ad litem’s duties nor established who would pay for his services at the outset, it

permitted the guardian ad litem to essentially write himself a blank check for a seemingly

unlimited defense. The extensive time and fees that were being incurred clearly indicated

the need for a further order pursuant to the “unless otherwise ordered” provision in Trial

Court Rule 21.03. The duties described in this Rule more aptly apply to the appointment

of a guardian ad litem in summary proceedings, requiring a defined area of investigation

and reporting to the court. However, in this instance, where a guardian ad litem is

appointed for an incarcerated person, it is plain that the discretionary language in Rule

21.03 becomes operative and the court must “otherwise order[]” the scope of the duties of

the guardian ad litem.

It is on this particular point that I do take issue with the majority’s suggestion that

there is a defined scope of duties for guardian ad litem that exists in every case, which

falls somewhere short of full-blown representation and hovers somewhere around the

duties of a committee. See W.Va. Code §§28-5-33 to -36 (2013). This is not only at odds

with the discretion created by Quesinberry and Trial Court Rule 21.03, but is completely

unsupported and impractical. As noted above, the circuit court’s careful guidance and

strict parameters at the outset of a guardian ad litem appointment provide checks and

balances on the guardian ad litem and the fees incurred. Nowhere does the majority

memorandum decision adequately explain the defined duties of a guardian ad litem

despite vaguely referring to “[t]he proper role of a guardian ad litem” and stating that Mr.

11

Bottner’s services were “not contemplated by our law[.]” Further, it is the initial failing

of the circuit court to define Mr. Bottner’s duties in light of the defense being asserted by

Mr. Jensen which created reversible error.

Accordingly, it would appear that upon request for the appointment of a guardian

ad litem for an incarcerated person pursuant to Rule 17(c) of the West Virginia Rules of

Civil Procedure and Rule 21 of the West Virginia Trial Court Rules, it is incumbent upon

the trial court to examine the factors set forth in syllabus point two of Quesinberry v.

Quesinberry, 191 W.Va. 65, 443 S.E.2d 222 (1994), to determine whether the

appointment of a guardian ad litem is necessary. If the court determines that the

appointment is appropriate, the trial court must, at the outset of the appointment, carefully

and specifically define the scope of the guardian ad litem’s duties, his or her hourly rate,

and identify the source of the guardian ad litem’s compensation.

That said, circuit courts must be mindful that to whatever extent due process

requires minimal access to the court for an incarcerated person, it certainly does not

create an unfettered right to appointed counsel as in the criminal realm. As explained by

the Wisconsin Supreme Court: “Incarceration does not necessarily mandate the

appointment of counsel. A prisoner who appears in circuit court to defend a civil tort

action pro se should not have greater rights to appointed counsel than an indigent

defendant who is not incarcerated.” Piper v. Popp, 482 N.W.2d 353, 355 (Wis. 1992)

(emphasis added). The Piper court, like this Court and others, noted that reasonable

alternatives providing access are equally compliant with due process:

A state court may avert depriving indigent incarcerated

defendants in civil actions of the opportunity to defend

themselves in a number of ways. These include, but are not

limited to, postponing trial until the prisoner is released from

incarceration, granting a continuance until the prisoner can

retain counsel, allowing the prisoner to appear in circuit court

pro se, or appointing counsel.

Id. The California Supreme Court has noted that reasonable alternatives for access must

first be exhausted before counsel is appointed:

In an appropriate case, and as a last alternative, appointment

of counsel may be the only way to provide an incarcerated,

indigent civil defendant with access to the courts for the

protection of threatened personal and property rights. We

again stress that access—not the right to counsel—is the

keystone of the structure [governing appointment of counsel

for incarcerated indigents][.]

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Yarbrough v. Superior Court, 702 P.2d 583, 585 (Cal. 1985) (emphasis added). As the

Yarbrough court emphasized, “access” to the courts is the guiding precept for

consideration of a request for appointment of a guardian ad litem for an incarcerated

person. This is entirely consistent with the construct this Court created in Quesinberry

and the Trial Court Rules, which, if properly utilized, should ensure that situations such

as this do not recur. In short, neither our caselaw nor our rules countenance granting

incarcerated persons a free civil defense attorney at his or her whim.

Finally, I note that the majority memorandum decision disposes of this matter

insofar as Mr. Bottner’s duties are concerned by ruling that he is “discharged from his

effective appointment as attorney ad litem in the underlying civil action” without further

explanation or direction. (Emphasis added.). We assume this is meant to suggest that Mr.

Bottner is to continue in his role as guardian ad litem, but should not function in same

manner as he has previously. Obviously, in absence of any direction in the majority

memorandum decision about the precise role of a guardian ad litem and, more

importantly, the majority’s refusal to incorporate the directives contained in this

concurrence, the circuit court and Mr. Bottner will be left with a great deal of uncertainty.

As a matter of prudence, I 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. 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.

Accordingly, I respectfully concur. I am authorized to state that Chief Justice

Workman joins in this separate concurrence.

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