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High Court: Diocese exempt from consumer protection law

CHARLESTON — West Virginia’s consumer protection laws do not apply in a case against the Roman Catholic Diocese of Wheeling-Charleston brought by the state’s Attorney General, the West Virginia Supreme Court said on Monday.

The court was asked by Wood County Circuit Judge J.D. Beane, who in November 2019 ruled in favor of the diocese on a motion to dismiss the lawsuit by Attorney General Patrick Morrisey, to clarify whether the state Consumer Credit and Protection Act also applies to educational and recreational services offered by a religious institution.

“Answer: No,” the opinion delivered by Justice Elizabeth Walker said.

Morrisey in March 2019 sued the diocese, alleging it violated the act by not disclosing incidents of sexual misconduct and abuse in schools and camps. However, Beane in granting the motion to dismiss, sought guidance from the Supreme Court on the application of the act to religious institutions over sales or advertising of educational and recreational services and whether Morrisey’s interpretation of the act was a violation of the separation of church and state.

“The Diocese of Wheeling-Charleston is pleased with the decision from the West Virginia Supreme Court of Appeals, and the decision speaks for itself,” Tim Bishop, spokesman for the diocese, said. “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.”

While state code Section 18-28 about private, parochial and church schools is in apparent conflict with the consumer protection act’s provisions for deceptive practices, it would 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 (Consumer Credit Protection Act,) but not those same representations when made by the affiliated religious institution regarding its recreational services,” the opinion said.

The court in a footnote said nothing in the decision “relieves a religious institution, or a school or camp operated by a religious institution, from its obligation to maintain a safe environment or its obligation to comply with other provisions of law as the case may be.”

“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,” the decision said. “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. While we recognize that violations of this trust may subject the Diocese to liability under other legal theories, our sympathy cannot rewrite the law…”

Justice Margaret Workman dissented.

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” and gives “a blanket exemption for religious entities that are operating and competing in the commercial marketplace,” Workman said.

“Rather, what is at issue is a matter of purely secular concern — providing a safe environment at school and at play. Specifically, if a seller of services seeks to compete in the marketplace with advertisement, then the seller must do so fairly and honestly,” Workman said. “Not only does acting fairly and honestly serve the remedial purpose of the (the act) in protecting consumers, it also promotes sound business practices.”

Morrisey said the investigative subpoena from his office was likely the only reason there was a disclosure 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 said.

“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 a materially and demonstratively false manner.”

(Mancini can be contacted at jmancini@newsandsentinel.com)

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