Tuesday, November 17, 2020

Almost Heaven

A decision issued yesterday by the West Virginia Supreme Court of Appeals absolves a defendant of claims of deceptive practices brought by the state Attorney General

The Attorney General of West Virginia (the Attorney General) sued the Diocese of Wheeling-Charleston and Michael J. Bransfield in his capacity as Former Bishop of the Diocese of Wheeling-Charleston (the Diocese). The Attorney General alleged that the Diocese knowingly employed persons who admitted to sexually abusing others or who were credibly accused of sexual abuse at its schools and camps for decades. By hiding that danger or misrepresenting it, the Attorney General alleged that the Diocese violated the deceptive practices provisions of the West Virginia Consumer Credit and Protection Act. Upon the Diocese’s motion, the circuit court dismissed the Attorney General’s claims. But, the court stayed its order and certified the following question of law to this Court: “Do the deceptive practices provisions of the West Virginia Consumer Credit and Protection Act, West Virginia Code §§ 46A-6-101 to 106 (2015), apply to
educational and recreational services offered by a religious institution?” For the reasons discussed below, we answer “No.”

The dissent of Justice Workman

The majority opinion is transparently result-oriented which explains its 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. 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 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 allegations

it is alleged that the advertisements did not disclose that at times the Diocese employed priests and laity convicted of, admitted to, or credibly accused of sexually abusing children. A list of some forty priests convicted or credibly accused in this State or other States before association in this State from 1950 to 2018 has been developed. The Diocese had a practice of concealing information about child abuse allegations despite a public letter in 2003 announcing a promise not to enter into confidential agreements in the future in order that the truth be known. The State alleges a number of specific fact situations involving credible sexual abuse allegations as well as some involving convictions regarding individuals at its schools and camps—none of which were accompanied by any disclosure of incidents or conduct to parents of other children. The State also alleges instances where the Diocese did not abide by its advertisements that personnel in schools and camps are subject to background checks.

For its claims of failure to deliver advertised services, failure to warn of dangerous services, and unfair methods of competition, the State sought relief in the form of a declaration that the Diocese violated the CCPA, an injunction against further violations, and civil penalties. Significantly, the State expressly represented that nothing in the complaint “should be construed as an attempt to modify or interfere with doctrinal matters and hiring decisions.” In other words, the State indicated it had no intent to interfere with religious matters and was interested only in protecting consumers from advertising in violation of the CCPA.

Conclusion of the dissent

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. 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.

(Mike Frisch)


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