March 31, 2019
By H. John Rogers
It is a very dangerous thing when the government seeks to regulate or control religion for any reason. The First Amendment has long been construed by the courts to require “a wall of separation” between church and state.
West Virginia Attorney General Patrick Morrisey has sued the Catholic Church in West Virginia over the past conduct of its priests and hierarchy. The basic charge in that the church knowingly hired pedophiles and did not conduct background checks on employees for schools and camps operated by the diocese. In the past!
For all practical purposes, the diocese has admitted these allegations. To the extent that they are crimes, the attorney general has absolutely no authority to deal with them. The power to initiate criminal proceedings is vested exclusively in the 55 local county prosecuting attorneys. The attorney general cannot even suggest a course of action to a local prosecuting attorney. Since there is absolutely nothing that the attorney general can do about even admitted criminal conduct in the past, this suit must be an attempt enjoin criminal conduct in the future.
The problem is that the civil law will not normally countenance an attempt to proscribe criminal conduct in the future. For example, the state cannot sue someone to prevent that person from robbing a bank or selling drugs, even if it is established as an absolute certainty that the crime will occur.
The asserted statutory basis for the suit here is the West Virginia Consumer Credit and Protection Act. If a totally unqualified person were made head of West Virginia University, would an aggrieved student (or parent) have standing to sue? More importantly, could the attorney general bring a class action law suit on behalf of all the parents who paid good money for their children to attend a school and later discovered that the school had an incompetent president? Isn’t this precisely what the attorney general is trying to do here?
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