On November 6, Judge Beane of the Circuit Court of Wood County entered an order in State ex rel. Morrisey v. Diocese of Wheeling Charleston, Civil Action No. 19-C-69. The case raises interesting issues. Through his complaint, AG Morrisey alleged that the Diocese violated West Virginia's consumer laws by failing to disclose to those using its educational and recreational services that it had, in the past, hired staff who had been guilty of sexual abuse. Judge Beane found that the consumer laws did not apply to selling or advertising educational or recreational services provided by religious institutions. Beyond that, he found that the AG's complaint amounted to a constitutional overreach in violation of the First Amentment. Both of these issues have been certified to the Supreme Court.
Was Judge Beane right? What will the Supreme Court do? Jason Causey shares his thoughts:
The Consumer Credit and Protection Act “CCPA”was intended to be liberally construed to protect consumers and provide relief that may otherwise be unavailable at common law. There seems to be little doubt that the Act can and should be applied generally to educational services offered by for profit schools. For example, the CCPA could be used to protect consumers where a school misrepresents the status of its accreditation to wrongfully attract students.
Here, however, the Circuit Court found that the Attorney General’s (“AG”) complaints were of a different type and nature than those that typically fall under consumer protection laws. The use of the CCPA by the AG in the context of attempting to remedy historic claims of sexual abuse by priests is certainly novel. Beyond the unusual nature of these “consumer claims”, the Circuit Court pointed out that other statutes apply more specifically to regulate religious institutions including those that offer educational services. Finally, the Circuit Court was concerned that the broad nature of Article 6 of the CCPA, under which the AG sought to exercise jurisdiction, would lead to the Attorney General’s interference with the Diocese’s constitutional right to freedom of religion.
The Circuit Court found the Attorney General to have overreached but, nonetheless, certified the question of whether the CCPA can be applied to regulate educational services offered by religious institutions to the Supreme Court of Appeals. Given the unique context of an AG attempting to regulate a sexual abuse scandal under consumer protection laws, the Supreme Court is unlikely to overrule what appears to be a sound decision of the Circuit Court. Certainly, each and every true victim deserves a remedy and to its credit the Circuit Court indicated a concern for victims. But even allegations of this nature, do not warrant the AG usurping broad control over the church in general. To put it another way, the AG has tried to fit a square peg into a round whole and in doing so implicated constitutional concerns.
Had the issue been false representations of accreditation or misstatements about the cost of education, the CCPA would be a good fit for the AG to bring an action. Given these specific allegations, other civil and criminal laws may be more appropriate; however, they may not bestow the same broad jurisdiction upon the offices of the AG as he would like. I believe the Supreme Court of Appeals is likely to reframe the first certified question to narrow it to the circumstances at hand and affirm the dismissal.