CHARLESTON – The state Supreme Court says the deceptive practices provisions of the West Virginia Consumer Credit and Protection Act do not apply to educational and recreational services offered by a religious institution.
The Court, in a 4-1 opinion released November 16, combined two certified questions asked by Wood Circuit Judge J.D. Beane regarding a case filed by state Attorney General Patrick’s Morrisey’s office against the Diocese of Wheeling-Charleston and former Bishop Michael Bransfield. Morisey’s office argued the Catholic Church has to follow the CCPA when it promotes its educational services.
Justice Margaret Workman dissented and wrote a 13-page opinion of her own.
Workman
Despite the ruling, Morrisey said he was proud of his office’s efforts to protect West Virginia children. His office argued that the church failed to protect children from sexual abusers, such as Bransfield, in promoting its services by not noting the alleged acts of abuse.
“Our investigative subpoena is likely the only reason we have a list of 40 priests who are credibly accused of sexually abusing minors,” Morrisey told The West Virginia Record. “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.”
The court heard oral arguments September 22, 10 months after Beane dismissed one claim filed by Morrisey’s office against the Diocese and certified two questions to the state Supreme Court. While Beane granted the Diocese’s motion to dismiss claims under the CCPA, he also stayed the litigation until the certified questions are answered by the state Supreme Court.
The first certified question is whether the Consumer Credit and Protection Act applies to religious institutions regarding the sale and advertisement of educational and recreational services. Beane said it does not.
The second question is if the cumulative impact of the relationship between church and state constitutes an excessive entanglement which is prohibited by the state and federal constitutions. Beane said it does.
In its 23-page majority opinion, the court boiled those two questions down to one: Do the deceptive practices provisions of the West Virginia Consumer Credit and Protection Act … apply to educational and recreational services provided by a religious institution? Their answer was no.
Earlier in the majority opinion written by Justice Beth Walker, the court answers both of the questions separately and agreed with Beane on both.
“But, we are not bound to answer the exact question certified by the circuit court,” the opinion states. “This court always retains the power to reformulate certified questions.”
It says the Legislature did not intend to empower the AG’s office to regulate a religious institution’s educational and recreational services under the deceptive practices provisions of the CCPA.
“Consider a church-sponsored fee-based trip: Could the Legislature have intended the Attorney General to regular a religious institution’s representations about the trip but not representations made by its affiliated church school?” Walker wrote. “That is absurd. It would also be absurd to conclude that the Legislature intended to exempt a church school’s representations about its educational services from regulation under the deceptive practices provisions of the CCPA, but not those same representations when made by the affiliated religious institution regarding its recreational services.”
Walker writes the AG’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,” she wrote. “And, when offered the opportunity to separate those abusers from students and church faithful, the Diocese allegedly failed to take it. Children trust adults not to hurt them. The faithful trust their leaders to embody the tenets of the faith.
“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.”
A footnote in the opinion says nothing in the decision relieves a religious institution or a school or camp operated by such from its obligation to maintain a safe environment or its obligation to comply with other provisions of law.
In her dissent, Workman calls the majority opinion “transparently results-oriented” and says it contains “logical incoherence and sins of omission.”
“The issue before the court is one of fairness and honesty in commercial communications to the public – potential purchasers of goods and services,” she wrote. “The fundamental question involves matters of unfair or deceptive acts or practices in advertising or selling and in advertising based on false promises. That is all. Nothing else is at issue.
“This case has absolutely nothing to do with the free exercise or expression of religious thought and nothing to do with regulation religious institutions in the sense of excessive state entanglement.”
Workman, who is retiring next month from the court, said the certified questions presented to the court and the reformulated question made by the court all unnecessarily interject religion into a statute meant to protect consumers.
“What is at issue is a matter of purely secular concern – providing a safe environment at school and at play,” Workman wrote. “Specifically, if a seller of services seeks to compete in the marketplace with advertisement, then the seller must do so fairly and honestly. Not only does acting fairly and honestly serve the remedial purpose of the CCPA in protecting consumers, it also promotes sound business practices.”
Workman concludes by saying the majority opinion itself is an “absurdity.”
“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,” she wrote. “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.”
Morrisey praised Workman’s dissent.
“We also appreciate retiring Justice Workman’s dissent, which questions if courts should shut the door on enforcing ‘even the most blatant unfair or deceptive commercial conduct on the grounds that false or misleading advertising was perpetrated by a religious institution,’ but instead argues the consumer protection law prohibits all entities – religious or otherwise – from advertising and marketing in an materially and demonstratively false manner,” he told The Record.
After September’s oral arguments, Morrisey said the case isn’t about religion.
“We have deep respect for the Diocese and its schools, and we fervently believe that religious liberty is the bedrock of our nation, yet such liberties are not at issue here,” Morrisey told The Record. “This is about when the Diocese chooses to act like a business. If an entity – religious or otherwise – chooses to advertise that it conducts background checks, then that fact must be true as the same standard of truth in advertising applies to all entities choosing to advertise a good or service.
“We stand behind our case and remain proud of our arguments, for our investigative subpoena is likely the only reason we have a list of 40 priests who are credibly accused of sexually abusing minors.”
West Virginia Supreme Court of Appeals case number 19-1056
