MORGANTOWN — The state Supreme Court has effectively ended Attorney General Patrick Morrisey’s suit against the Diocese of Wheeling-Charleston and former Bishop Michael Bransfield, saying the diocese did not violate the state Consumer Credit and Protection Act in advertising its education and recreation services to the public.
The court issued its opinion on Tuesday, with Justice Beth Walker drafting the opinion for the majority. Justice Margaret Workman issued a separate and somewhat scathing dissent, saying, “The majority opinion slams the door shut on enforcement of even the most blatant unfair or deceptive commercial conduct on the grounds that false or misleading advertising was perpetrated by a religious institution.”
In the wake of the decision, Morrisey said “Despite the majority opinion, we remain proud of our efforts to protect West Virginia children, for our investigative subpoena is likely the only reason we have a list of 40 priests who are credibly accused of sexually abusing minors. We appreciate that the majority agrees that our allegations are very troubling and acknowledges that our case may have proceeded if not for the Legislature inserting an exception for religious schools in a separate statute, a reality that a future Legislature could remedy.”
Morrisey also acknowledged Workman’s dissent, noting she argues that “the consumer protection law prohibits all entities – religious or otherwise – from advertising and marketing in an materially and demonstratively false manner.”
The Diocese said in a statement, “The Diocese of Wheeling-Charleston is pleased with the decision from the West Virginia Supreme Court of Appeals and the decision speaks for itself. We affirm our full commitment to transparency about our schools and to the protection of those young people entrusted to our care across the state of West Virginia through our “Safe Environment” program and strict adherence to state laws.”
Morrisey sued the diocese and Bransfield in March 2019 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 dismissed the suit in November 2019 but stayed the case and asked the Supreme Court to answer two questions: Do the provisions of Article 6 of the Consumer Credit and Protection Act (CCPA), respecting unfair methods of competition and unfair or deceptive acts or practices, apply to religious institutions in connection with their sale or advertisement of educational or recreational services?
And: Does the cumulative impact of the entire relationship between Church and State arising from the Attorney General’s application of the Act constitute an excessive entanglement of Church and State prohibited by the constitutions of the United States and the State of West Virginia?
The Supreme Court majority chose to reformulate the first question: o the deceptive practices provisions of the West Virginia CCPA, West Virginia Code 46A-6-101 to -106, apply to educational and recreational services offered by a religious institution? By answering the reworded question in the negative, it mooted the second question.
The court majority agreed with Morrisey that the CCPA covers education and recreation services. But disagreed that the deceptive practices provisions can regulate those services when a religious institution offers them because the CCPA code conflicts with state code 18-28-1 to 7, which applies to private, parochial or church schools, or schools of a religious order.”
Code 18-28-1 regulates 180-day instructional terms and similar operational matters. It says if a church school meets those requirements, then the Legislature orders it “shall [not] be subject to any other provision of law relating to education except requirements of law respecting fire, safety, sanitation and immunization.”
The court said it’s not possible to determine if a church school violated the CCPA without also judging it educational services – which involves the state overstepping its relationship with the church. “The Legislature also did not intend to empower the attorney general to regulate a religious institution’s educational and recreational services under the deceptive practices provisions of the CCPA.”
In siding with the Diocese on the application of the CCPA, the majority did not attempt to excuse any possible misdeeds. “The attorney general’s allegations against the diocese are deeply troubling. Diocesan leaders allegedly exposed children and adults to admitted sexual abusers—or to those credibly accused of sexual abuse—for decades. And, when offered the opportunity to separate those abusers from students and church faithful, the diocese allegedly failed to take it.
“If the Diocese acted, or failed to act, as the attorney general alleges, then the Diocese has violated that trust and harmed those tendered to its care,” the majority wrote. Any violations of trust may be subject to other civil action, but in this narrow focus on the CCPA it has to acknowledge the conflict with code 18-28-1 to 7.
Workman’s dissent
Workman wrote, “The majority opinion is transparently result-oriented which explains its logical incoherence and sins of omission.”
She said, “This case has absolutely nothing to do with the free exercise or expression of religious thought and nothing to do with regulating religious institutions in the sense of excessive state entanglement. As brought and pled by the state, what is at issue is alleged false promises and deceptive advertising promoting a safe environment aimed at getting students and campers to attend for-fee-based schools and camps, when alleged facts indicated the contrary to be true.”
The majority, she said, was seeking a result and wrongly created a conflict with code 18-28 where none exists because they address separate, unrelated issues. One protects consumers, one addresses school operational matters.
“Like any other seller of for-fee educational and recreational services, the advertising and marketing goal seeks to promote its product in order to gain a competitive advantage. Certainly, by promoting safety initiatives, the Diocese sought to attract consumers away from competitors that did not advertise similar safety measures,” Workman wrote.
The court’s questions, she said, “unnecessarily interject religion into a statute directed solely at protecting consumers from unfair, misleading or deceptive advertising, none of which infringes upon or is directed at constitutionally protected religious rights.” And the Legislature could have expressly exepted religiou sinstituions form the CCPA, along with other specific exemptions in the code, but didn’t.
She concluded, “The majority grafted onto the CCPA a blanket exemption for religious entities that are operating and competing in the commercial marketplace. The educational and recreational services provided by these religious institutions are undertaken for fees and marketed to the public at large for a purely secular purpose—enticing buyers and selling product. Ironically, religious institutions have been given an unfair marketplace advantage with respect to their commercial enterprises.”
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