Judge Dismisses Ag's Consumer Claim against Diocese, Sends Two Questions to Supreme Court

By Chris Dickerson
West Virginia Record
November 7, 2019

https://wvrecord.com/stories/519828741-judge-dismisses-ag-s-consumer-claim-against-diocese-sends-two-questions-to-supreme-court

A circuit judge has dismissed one claim filed by Attorney General Patrick Morrisey’s office against the Diocese of Wheeling-Charleston and certified two questions to the state Supreme Court.

Wood Circuit Judge J.D. Beane’s Nov. 6 order granted the Diocese’s motion to dismiss claims by the AG’s office under the state Consumer Credit and Protection Act. It also stayed the litigation until the certified questions are answered.

“A panoramic view of the entire relationship between church and state arising from application of the Consumer Credit and Protection Act to religious schools reveals, not dimly but clearly, an excessive entanglement of government and religion, which is prohibited under federal and state constitutions,” Beane wrote.

Morrisey’s office had claimed the Diocese violated the act by failing to disclose sexual misconduct by school and camp employees with minors to parents, the diocese knowingly hired pedophiles and did not conduct background checks on employees.

A spokesman said the Diocese is “pleased and grateful” that Beane concurred with the belief that the complaint isn’t valid.

“Looking ahead, we are confident that the West Virginia Supreme Court of Appeals will affirm the Circuit Court’s decision,” Tim Bishop said. “The Diocese wishes to again assert its full commitment to the protection of those young people entrusted to its care in its primary and secondary schools across the State of West Virginia through its ‘Safe Environment’ program.

“We have no more sacred trust than the nurturing of these young minds and souls and have instituted rigorous standards for all who bear responsibility for their care: priests, religious clergy and sisters, lay educators, employees and volunteers.”

Bishop said the Diocese maintains a zero tolerance policy regarding sexual abuse of a minor by any person in its employment.

“Moreover, we are committed to working toward restoring trust where it has been broken and to bringing about healing among all who, in any way, have been harmed,” Bishop said.

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 says 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 says it does.

Morrisey said the court’s decision to stay the case shows the complexity of the matter.

“We remain confident in the strength of our arguments at the Supreme Court, although, regardless of the ultimate resolution, the need for serious transparency and reform within the diocese is clear and that begins with release of the Bransfield report,” Morrisey said in a statement, referring to an investigation into misconduct by former Bishop Michael J. Bransfield that has been sent to the Vatican but not yet released to the public.

“Let’s be clear about what is at stake. West Virginians did not know of the Diocese's list of credibly accused priests until after issuance of our first investigative subpoena in fall 2018, and through our subsequent lawsuit they learned of the Diocese's alleged policy of nondisclosure, evidence as to its lack of rigorous background checks and its alleged history of moving about credibly accused pedophiles without notifying the families whose tuitions fund its schools and camps.”

Morrisey said everything would have been “swept under the rug” without his involvement.

“There is simply no other way to obtain evidence of these allegations and provide the public the transparency it so desperately seeks about these horrifying matters,” he said. “The First Amendment appropriately provides significant protections for churches; at the same time, it’s hard to fathom how the church can literally be above the law and immune to any review of its deceptive advertising practices.

“The church cannot restore public trust by ignoring its past. Congregants and consumers deserve full transparency.”

Morrisey said his office is working to bring lasting reform.

“But if the court determines our case cannot go forward, it would also blow a huge hole in the state’s ability to regulate deceptive advertising practices,” he said. “This would leave no other option, leaving it to the Diocese to release records and enact reforms on its own unless others join the fight we started more than a year ago.”

“I have great love and respect for the Diocese and I want it to succeed, but within that passion rests a fundamental need to reconcile sins of the past against the transparency that consumers expect and our state law demands.

“There remain many good Catholics in the Church, including priests and deacons, who have been let down, and I believe together we yearn to see that trust restored.”

Morrisey's office, which initiated the investigation in the fall of 2018, brought the action against the Diocese and Bransfield for violations of the state’s consumer protection laws, in addition to seeking a permanent court order blocking the Diocese from the continuation of any such conduct.

Morrisey filed suit against the Diocese and Bransfield in March alleging the Diocese knowingly employed pedophiles and failed to conduct adequate background checks for those working at the Diocese’s schools and camps, all without disclosing the inherent danger to parents who purchased its services for their children. The complaint was amended in May to include several more counts and new evidence.

The updated complaint, filed May 21 in Wood Circuit Court, included a new count of unfair competition and new evidence of the church's failure to conduct background checks and report abuse. The amended complaint also includes allegations the Diocese chose not to publicly disclose a report of child sexual abuse by a teacher in 2006 and permitted several individuals to work or volunteer at Catholic schools without adequate background checks.

The count of unfair competition in the amended complaint alleges the Diocese omitted the fact that it knowingly employed priests who had admitted to or been accused of sexually abusing children in advertising materials for prospective students. It says those materials also didn’t mention the Diocese didn’t do background checks on its employees.