Wv Court Considers Whether the First Amendment Protects Diocese from Consumer Protection Laws

By Lacie Pierson
Charleston Gazette-Mail
September 22, 2020

The West Virginia Supreme Court is considering whether it’s a violation of the First Amendment for Attorney General Patrick Morrisey to pursue a case against the Diocese of Wheeling-Charleston under the state’s Consumer Credit and Protection Act.

During about an hour’s worth of arguments in Charleston on Tuesday, the justices asked attorneys whether it was possible for the attorney general to hold the diocese accountable for potential violations of the consumer law in a way that didn’t impede its faith doctrine or church governance.

The arguments stem from a case filed in Ohio County Circuit Court in March 2019.

Morrisey filed the suit claiming that the diocese knowingly employed priests who had been credibly accused of sexual abuse, at Catholic schools and a camp owned and managed by the diocese. The diocese, Morrisey alleges, did not perform adequate background checks for the priests before hiring them, according to the lawsuit.

The diocese failed to disclose such issues in its advertising, according to the lawsuit.

In November, Circuit Judge John D. Beane granted a motion from the diocese to dismiss the case.

In the same order, he asked the Supreme Court to answer two questions: whether the Consumer Credit Protection Act could be applied to religious institutions when they advertise their educational services or recreational services; and whether the impact of the attorney general applying the Consumer Credit Protection Act in this case constituted an excessive entanglement of church and state.

In his order, Beane said the act could be applied to religious institutions in such circumstances, but he also said it would be an excessive entanglement for the attorney general to apply the law.

Throughout proceedings in Ohio County, Morrisey had sought access to diocese records, but his attorney was not granted that access.

Whether the diocese violated the Consumer Credit Protection Act was not at-issue before the justices Tuesday.

On Tuesday, James C. Gardill, representing the diocese, asked the court to uphold Beane’s dismissal, saying the attorney general’s case was an “unprecedented misapplication of the CCPA.”

Gardill told the court that under the law the diocese can be held accountable for when a crime is committed or if it breaches a contract it created, but accountability in the circumstances in this case were beyond the scope of the Constitution and the Consumer Credit and Protection Act.

“The real burden here is they’re not enforcing a violation of the CCPA,” Gardill said. “They’re attempting to enforce our own policy.”

Lindsay See, solicitor general for the Attorney General’s Office, represented Morrisey in this case.

If a judge or jury ultimately determined that the diocese had violated the law, See said there were ways to remedy the case without violating the First Amendment.

She argued that the Attorney General’s Office was not trying to enforce the church’s policy, but instead hold it accountable for false claims it made in advertising, in this case claiming in advertising that all employees were hired after background checks when that was not the case.

“The core of this claim is the diocese can do whatever it wants when it comes to particular safety practices or training or background checks,” See said. “As soon as it includes some of those things as a factual matter in its advertising to the general public when it’s selling its services, it just has to be true.”








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