MORGANTOWN — The judge who has tentatively dismissed a lawsuit filed by Attorney General Patrick Morrisey against the Diocese of Wheeling Charleston and former Bishop Michael Bransfield, pending answers to two questions sent to the state Supreme Court, spelled out his reasoning, and his skepticism about Morrisey’s case, in a 40-page order.
Morrisey is suing the diocese and former Bishop Michael Bransfield in Wood County Circuit Court, alleging the diocese violated state consumer protection law by failing to disclose that it employed priests who sexually abused children or had credible accusations of sexual abuse, and failed to conduct background checks for priests, employees and volunteers who had contact with children.
Wood County Circuit Judge J.D. Beane has stayed the case and asked the Supreme Court to answer two questions:
Do certain provisions of the Consumer Credit and Protection Act cited in the lawsuit apply to religious institutions in connection with their sale or advertisement of education or recreation services?
And, does Morrisey’s application of the CCPA, as a whole, constitute an excessive church-state entanglement?
Beane believes the answer to the first question is “no,” and to the second, “yes.”
The diocese has argued that applying the CCPA to its educational services infringes on its internal affairs and amounts to unconstitutional entanglement.
Commenting on the difficulties, cited in a 1971 precedent case called Lemon, of marking the line between church affairs and state affairs, Beane says, “Such forewarning has been magnified by decades of horrific sexual abuse of children by priests and the church’s efforts to protect its institutional interests at the expense of its most vulnerable and innocent members, as well as societal changes respecting a proper relationship between government and religion.”
He continues, “The response of the law rightfully has been persistent investigation and severe sanctions for perpetrators, enablers and concealers. In such circumstances it was foreseeable that a will to prosecute claims against the church and to ‘push the envelope’ would give rise to creative, aggressive theories of liability.”
Beane said that Morrisey’s application of the CCPA to all diocese advertising for its schools and recreational activities would require continuous, indefinite monitoring of all its policy statements and procedures and ongoing involvement in the diocese’s relationship with students and their families, unless the diocese chooses never to advertise again.
He evaluates at length Morrisey’s contention that Article 6 of the CCPA applies to the relationship between the diocese, students and families regarding sales of educational and camp services.
Delving into case law, and particularly a case where Morrisey failed in an attempt to apply the CCPA to a Morgantown landlord who allegedly charged excessive fees for student housing, he concludes that the Legislature spells out law regarding parochial schools and camps in other code sections, and makes no mention of them in the CCPA. If the Legislate wanted to, it would have.
In fact, he said, Chapter 18 of state code, concerning education, specifically says no other code, except that governing fire, safety, sanitation and immunization, applies to religious schools.
He observes that courts recognize “that a legitimate, central purpose of such institutions [schools and camps] is to evangelize a faith and to preserve and develop its membership. The potential deleterious effects on the diocese’s legitimate interests in these respects is therefore a necessary factor to consider in construing the act and the limits of its permissible application.”
Even if the CCPA applies to private, for-profit schools, he said, that doesn’t mean it applies to religious schools.
Beane attempts to argue Morrisey’s point into absurdity by asking how it would apply to hospitals and medical offices and other businesses. Would a doctor or hospital be required in its advertising to report on every accusation or offense leveled against every employee? “The list is inexhaustible; the powers of the attorney general almost boundless,” and would allow him to influence every aspect of the state economy.
He concludes, “When the cumulative impact of the entire church-state relationship arising under the CCPA is revealed it becomes clear that the constitutional prohibition against excessive church-state entanglement is violated.”
Beane does side with Morrisey on one item: The diocese sought to have the case dismissed because the problems Morrisey cites are outside the four-year statute of limitations. But Morrisey alleges that the issue is ongoing and Beane said it’s premature to decide on that.
Despite the setback, Morrisey viewed Beane’s order in a positive
light. “The court’s decision to stay our case recognizes the complexity and
uncharted territory of this litigation, as well as the importance of guidance
from our Supreme Court in this matter of statewide interest,” he said in a
release.
“We remain confident in the strength of our arguments at the Supreme Court,
although, regardless of the ultimate resolution, the need for serious
transparency and reform within the Diocese is clear and that begins with release
of the Bransfield report.”
He continued, “Without our enforcement action, everything gets swept under the rug. There is simply no other way to obtain evidence of these allegations and provide the public the transparency it so desperately seeks about these horrifying matters. The First Amendment appropriately provides significant protections for churches; at the same time, it’s hard to fathom how the church can literally be above the law and immune to any review of its deceptive advertising practices.”
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