Doe v. Corp. of the President of the Church of Jesus Christ of Latter-Day Saints

• Decision Date: 14 June 2017
• Docket Number: No. 16-0008,16-0008
• Court: West Virginia Supreme Court
• Parties: JANE DOE-1, Individually and as Parent, Guardian, and Next Friend of J.T., a Minor, and W.T., a Minor; John Doe-1, Individually; Jane Doe-2, Individually and as Parent, Guardian, and Next Friend of Z.W., a Minor, and A.W., a Minor; Jane Doe-3, Individually and as Parent, Guardian, and Next Friend of C.H., a Minor; John Doe-3, Individually; Jane Doe-4, Individually and as Parent, Guardian, and Next Friend of A.B., a Minor; Jane Doe-5, Individually and as Parent, Guardian, and Next Friend of T.S., a Minor, and M.S., a Minor; John Doe-5, Individually; Jane Doe-6, Individually and as Parent, Guardian, and Next Friend of P.C., a Minor; and John Doe-6, Individually, Plaintiffs Below, Petitioners v. 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, Don Fishel, Christopher Michael Jensen, Christopher Jensen, Sandralee Jensen, and Unnamed Defendant-1, Defendants Below, Respondents

801 S.E.2d 443

JANE DOE-1, Individually and as Parent, Guardian, and Next Friend of J.T., a Minor, and W.T., a Minor; John Doe-1, Individually; Jane Doe-2, Individually and as Parent, Guardian, and Next Friend of Z.W., a Minor, and A.W., a Minor; Jane Doe-3, Individually and as Parent, Guardian, and Next Friend of C.H., a Minor; John Doe-3, Individually; Jane Doe-4, Individually and as Parent, Guardian, and Next Friend of A.B., a Minor; Jane Doe-5, Individually and as Parent, Guardian, and Next Friend of T.S., a Minor, and M.S., a Minor; John Doe-5, Individually; Jane Doe-6, Individually and as Parent, Guardian, and Next Friend of P.C., a Minor; and John Doe-6, Individually, Plaintiffs Below, Petitioners

v.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, Don Fishel, Christopher Michael Jensen, Christopher Jensen, Sandralee Jensen, and Unnamed Defendant-1, Defendants Below, Respondents

No. 16-0008

Supreme Court of Appeals of West Virginia.

Submitted: May 16, 2017

Filed: June 14, 2017

Robert P. Fitzsimmons, Esq., Fitzsimmons Law Firm PLLC, Wheeling, West Virginia

Carl S. Kravitz, Esq., Zuckerman Spaeder LLP, Washington, DC, Counsel for the Petitioners

Thomas V. Flaherty, Esq., Flaherty Sensabaugh Bonasso PLLC, Charleston, West Virginia, Counsel for the Respondent UD-1

Mark A. Atkinson, Esq., John J. Polak, Esq., Atkinson & Polak, PLLC, Charleston, West Virginia, Counsel for the Respondents Christopher Jensen and Sandralee Jensen

Thomas J. Hurney, Jr., Esq., Jackson Kelly PLLC, Charleston, West Virginia

William J. Powell, Esq., Jackson Kelly PLLC, Martinsburg, West Virginia, Counsel for the Respondents 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, and Donald Fishel

LOUGHRY, Chief Justice:

The petitioners (plaintiffs below) are nine minors and their parents, individually and as parents, guardians, and next friends,¹ in this action alleging various negligence claims, fraud, intentional infliction of emotional distress, assault, battery, and civil conspiracy related to, arising from, and resulting in defendant Michael Jensen's known and alleged sexual abuse of the minor plaintiffs.² Following extensive discovery, the circuit court entered an order on December 4, 2015, through which it granted summary judgment in favor of the respondent (defendant below), Unidentified Defendant-1 ("UD-1"), against whom conspiracy was the only claim asserted. On December 30, 2015, the circuit court entered an order granting several of the defendants' motions in limine which eliminated a large portion of the plaintiffs' circumstantial evidence in support of their conspiracy claim.³ The following day, December 31, 2015, the circuit court entered an order granting summary judgment on the plaintiffs' conspiracy claim in favor of the respondents (defendants below), 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, and Don Fishel (collectively the "Church defendants"), and in favor of the respondents (defendants below), Christopher Jensen⁴ and Sandralee Jensen.⁵

On January 11, 2016, the circuit court entered an order certifying its interlocutory summary judgment rulings as final judgments pursuant to West Virginia Rule of Civil Procedure Rule 54(b).⁶ In addition to seeking a reversal of the summary judgment orders, the plaintiffs ask this Court to reverse those in limine rulings. They assert these rulings facilitated the circuit court's issuance of summary judgment rulings without first evaluating the evidence offered in support of their conspiracy claims under the strictures applicable to summary judgment.

Upon our careful review of the parties' briefs, the arguments of counsel, the appendix record submitted, and the applicable law, we reverse the summary judgments and in limine rulings and remand this action for further proceedings consistent with this opinion.

I. Facts and Procedural Background⁷

In late 2004, Chris and Sandralee Jensen (collectively the "Jensen parents") and their children were residing in or near Provo, Utah. Their son Michael Jensen, who was then thirteen years old, was arrested at his middle school and charged with two felony counts of sexual abuse of a child. The incidents occurred in November and December of 2004, and his female victims were twelve and thirteen years old, respectively. On both occasions, Michael waited for his victim to exit a classroom before pinning her against a wall and grabbing her buttocks and breasts without her consent. One of the victims indicated in her statement to the police that during Michael's attack upon her person, he told her that they needed to have sex; that she was "really scared"; and that she had kneed Michael in the groin to get away. The defendants minimize the severity of the incidents describing them instead as brief groping of two female classmates over their clothes while at school.

The plaintiffs allege that a conspiracy began in Provo when The Church of Jesus Christ of Latter-day Saints ("Church") influenced Michael's criminal proceeding, which resulted in the two felony charges being reduced to misdemeanor sexual offenses. Among other assertions, the plaintiffs state that Michael's paternal grandfather, Blaine P. Jensen, who has held very high positions within the Church,⁸ attended a meeting between Michael and Michael's attorneys, and was present for Michael's dispositional hearing in January 2015. Dale Swensen, Michael's Church bishop⁹ in Provo, also attended the dispositional hearing. During this hearing, the juvenile petition was read and reports were submitted, including a Sexual Behavior Risk Assessment ("SBRA"),¹⁰ which indicated that Michael's offenses are based primarily on opportunity" and that he "will offend if given the opportunity." The juvenile court then accepted Michael's admission to reduced charges of two misdemeanor counts of lewdness involving a child; placed him on probation; ordered his parents to comply with the terms of probation; and ordered him to complete fifty hours of community service and a Sexual Appropriateness Class with the family component with proof of completion to be provided to the court. The defendants allege the plaintiffs have no evidence the Church influenced Michael's proceeding in any manner and that affidavits and declarations from the prosecutors involved in Michael's juvenile proceeding refute the existence of any such influence. Although the defendants allege Blaine Jensen's involvement was simply that of a grandfather assisting his grandson, the plaintiffs point to evidence that Michael told his friend, J.C., that he had been in legal trouble in Utah and that his grandfather "was in a leadership position for the church ... [and] helped take care of whatever needed to be taken care of."¹¹

The plaintiffs further allege that although the Church knew that Michael had pled guilty to two sex offenses in Utah, it did nothing to warn or protect, despite the existence of an abuse "prevention and response" procedure, referred to as an "annotation system." The defendants allege that their evidence demonstrates that the Church "rarely" annotates its records for children, and "even less so where the misconduct does not indicate a danger to much younger children."¹²

During the summer of 2005, the Jensen family moved to Martinsburg, West Virginia. Soon thereafter, Sandralee Jensen was asked to serve as the Church's Relief Society President for her new ward,¹³ which she accepted. In that role, Mrs. Jensen reported directly to her ward bishop, who was at that time Matthew Whitcomb. She also oversaw the Sunday class for the women and was responsible for "compassionate service" for all ward members. Shortly thereafter, Chris Jensen was placed on the Stake High Council,¹⁴ which is an advisory body to the Stake President, who at all relevant times was defendant Stephen Grow.

In their effort to further demonstrate the defendants' knowledge and awareness of Michael's history as an abuser, the plaintiffs allege there was a Stake High Council meeting in 2006 or 2007,¹⁵ during which leaders of the Martinsburg Stake discussed Michael Jensen's abuse of a younger sister¹⁶ and possibly another girl, and Chris Jensen's possible abuse of his son Michael. They further allege that at this same time, Stake President Grow asked UD-1 to "keep an eye" on Chris Jensen, who was UD-1's close friend, and to report back to him. UD-1 indicated during a recorded interview that through his position on Church councils, he was aware that Church leaders had been working hard with Michael Jensen to get him the help that he needed in the 2007-2008 time frame.¹⁷ The defendants deny that this 2006-2007 Stake High Council meeting ever took place or that Stake President Grow ever made such a monitoring arrangement with UD-1.

The plaintiffs allege that by April 2007, through her role as Relief Society President, Sandralee Jensen was arranging for Michael to babysit the children of ward families. They further allege that because there had been no disclosures concerning Michael's prior sex offenses in Utah by the Jensens or the Church defendants, the plaintiff Doe-6 parents allowed their four-year-old daughter P.C. to be babysat by Michael, who sexually and physically abused her by repeatedly laying down in bed with her and making her touch his penis. The plaintiffs further allege that when the Doe-6 parents returned home, P.C. was extremely upset; had a handprint-shaped bruise on her bottom; and was terrified of Michael. When Jane Doe-6 confronted the Jensens parents, who were both Church officers at the time, they explained that P.C. was upset because Michael had not fed the Doe-6 children...