West Virginia’s Attorney General, Patrick Morrisey, filed a lawsuit in March of 2019 alleging that the Diocese of Wheeling-Charleston was operating schools and camps in violation of the West Virginia Consumer Credit and Protection Act. The AG’s allegations included that the Diocese failed to keep the public safe by not conducting background checks on more than 20 elementary school employees, by not publicly disclosing the employment of sexual abusers, and by covering up a 2006 report of sexual abuse allegations regarding a teacher.

In November of 2019, Ohio County Circuit Judge John Beane dismissed the lawsuit. In his dismissal order, Judge Beane ruled that the consumer law could not be applied to a religious institution. He opined that such an application would be an excessive intermingling of church and state. The judge requested that the WV Supreme Court of Appeals evaluate his opinion and determine whether the WV Consumer Protection Act could be applied to religious institutions.

On November 16, 2020, the WV Supreme Court of Appeals ruled 4-1 that the Diocese and other religious institutions are not subject to the WV Consumer Protection Act. In its majority ruling, written by Justice Beth Walker, the court noted that the Consumer Protection Act conflicts with a 1983 law that establishes “operational parameters” for religious schools. This law is Rule 28 of the West Virginia Code, titled PRIVATE, PAROCHIAL OR CHURCH SCHOOLS, OR SCHOOLS OF A RELIGIOUS ORDER.

Section 18-28-6 of the law includes this language: “No private, parochial or church school or school operated by any other religious group or body as part of its religious ministry or other nonpublic school which complies with the requirements of this article shall be subject to any other provision of law relating to education except requirements of law respecting fire, safety, sanitation and immunization.”

Justice Margaret Workman, the sole dissenting judge, wrote that the case had nothing to do with freedom of religion, but rather involved unfair and deceptive practices of advertising and selling based on false promises. She noted that the majority opinion “slams the door shut on enforcement of even the most blatant unfair or deceptive commercial conduct . . . by a religious institution,” and that this gives religious entities a “blanket exemption” in the marketplace.

The Diocese has 19 elementary schools, six high schools, and more than 5,000 students in West Virginia, according to Justice Workman’s opinion. She cited annual tuition at the schools between $6,000 and $8,000 per student. Given the number of “customers” and the economic value of the venture, the attempt at utilizing the Consumer Protection Act to cause reform seems logical.

AG Morrisey, whose initial filing was made four months after the Diocese of Wheeling-Charleston released a list naming 18 priests who were credibly accused of sexual abuse of minors over a period of 40 years, stated that the case “may have proceeded if not for the Legislature inserting an exception for religious schools in a separate statute.” He preemptively filed an appeal, hedging his bets against the West Virginia Supreme Court of Appeals upholding Judge Beane’s dismissal. The appeal, if accepted, will be heard by the U.S. Supreme Court.

SNAP, the Survivors Network, is an organization that supports victims of sexual abuse in institutional settings. On their website they posted an article about the lawsuit, in which they noted, “This is a disappointing ruling and we find it disturbing for victims that church officials will get away with lying to the public about clergy abuse, once again.”

Spokesperson for the Diocese, Tim Bishop, said the Diocese was pleased with the decision and that they would continue to be committed to transparency about their schools and camps and the protection of the children in their care. AG Morrisey commented that the investigative subpoena that arose out of the case is likely the only reason a list of 40 priests credibly accused of sexually abusing minors exists. The Diocese has released the list.

Justice Walker, writing for the majority, said, “The Attorney General’s allegations against the Diocese are deeply troubling. Diocesan leaders allegedly exposed children and adults to admitted sexual abusers, or to those credibly accused of sexual abuse, for decades. And, when offered the opportunity to separate those abusers from students and church faithful, the Diocese allegedly failed to take it. Children trust adults not to hurt them. . . If the Diocese acted, or failed to act, as the Attorney General alleges, then the Diocese has violated that trust and harmed those tendered to its care.”

AG Morrisey showed appreciation for Justice Workman’s dissent, noting her argument that consumer protection law prohibits all entities, whether religious or not, from performing their marketing and advertising in a false and misleading manner.