Opinion
No. 19-1056
11-16-2020
STATE of West Virginia EX REL. Patrick MORRISEY, Attorney General, Petitioner v. DIOCESE OF WHEELING-CHARLESTON, and Michael J. Bransfield, in his capacity as former Bishop of the Diocese of Wheeling-Charleston, Respondents
Patrick Morrisey, Esq., Attorney General, Lindsay S. See, Esq., Solicitor General, Douglas P. Buffington, II, Esq., Senior Deputy Attorney General, Douglas L. Davis, Esq., Abby G. Cunningham, Esq., Assistant Attorneys General, Charleston, West Virginia, Counsel for Petitioner. James C. Gardill, Esq., Richard N. Beaver, Esq., Edward M. George, III, Esq., Phillips, Gardill, Kaiser & Altmeyer, PLLC, Wheeling, West Virginia, Christopher A. Brumley, Esq., Flaherty Sensabaugh Bonasso, PLLC, Charleston, West Virginia, Counsel for Respondents.
Patrick Morrisey, Esq., Attorney General, Lindsay S. See, Esq., Solicitor General, Douglas P. Buffington, II, Esq., Senior Deputy Attorney General, Douglas L. Davis, Esq., Abby G. Cunningham, Esq., Assistant Attorneys General, Charleston, West Virginia, Counsel for Petitioner.
James C. Gardill, Esq., Richard N. Beaver, Esq., Edward M. George, III, Esq., Phillips, Gardill, Kaiser & Altmeyer, PLLC, Wheeling, West Virginia, Christopher A. Brumley, Esq., Flaherty Sensabaugh Bonasso, PLLC, Charleston, West Virginia, Counsel for Respondents.
WALKER, Justice: 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."
We have reformulated the circuit court's first certified question. Because our answer to that first question moots the second question certified below, we do not address it.
I. Facts and Procedural History
The Attorney General sued the Diocese in March 2019 for alleged violations of the deceptive practices provisions of the West Virginia Consumer Credit and Protection Act (CCPA), West Virginia Code §§ 46A-6-101 to 106 (2015). Generally, the Attorney General claimed that the Diocese had violated the deceptive practices provisions when it knowingly employed admitted and credibly-accused sexual abusers in its schools and camps but neither disclosed that material information to consumers nor warned them of the alleged dangers inherent to the educational and recreational services it provided. The Attorney General also claimed that the Diocese had made material misrepresentations regarding the safety of those services. The Complaint asserted two causes of action under the deceptive practices provisions: Advertised Services Not Delivered and Failure to Warn of Dangerous Services.
West Virginia Code § 46A-6-104 (1974), the animating section of the deceptive practices provisions, states: "Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful."
The Attorney General also alleged that the Diocese had failed to conduct appropriate background checks in violation of its own policies and contrary to its public representations.
W. Va. Code §§ 46A-6-104 and 46A-6-102(7)(I), (L), and (M) (2015).
Id. at §§ 46A-6-104 and 102(7)(L) and (M).
The Diocese moved to dismiss the Complaint arguing, inter alia, that the Legislature intended to regulate religious schools under Chapter 18 of the West Virginia Code, Education, and not the CCPA. The court did not rule on the motion before the Attorney General filed the Amended Complaint.
The circuit court granted the Attorney General leave to file the Amended Complaint in June 2019, which included slight expansions on the factual allegations of the original Complaint. In the Amended Complaint, the Attorney General asserted the same two causes of action found in the original Complaint. He added, however, a third claim: that the Diocese had obtained an unfair competitive advantage over other schools and camps when it had misrepresented and omitted material information about the safety of its own schools and camps.
See W. Va. Code §§ 46A-6-104 and 102(7)(L) and (M).
The Diocese moved to dismiss the Amended Complaint. Two issues predominated the parties’ briefing on the motion and their September 2019 argument to the court: whether the educational and recreational services offered by the Diocese were subject to the deceptive practices provisions of the CCPA and, if they were, whether the Attorney General's attempt to enforce those provisions impinged on the Diocese's constitutional rights. The circuit court granted the Diocese's motion in November 2019, stayed the case, and certified two questions of law to this Court.
Under West Virginia Code § 58-5-2 (1998), "[a]ny question of law, including, but not limited to, questions arising ... upon a challenge of the sufficiency of a pleading ... may, in the discretion of the circuit court in which it arises, be certified by it to the Supreme Court of Appeals for its decision, and further proceedings in the case stayed until such question shall have been decided and the decision thereof certified back." We have held that "[a]n order sustaining a motion to dismiss which dismisses the complaint but does not dismiss the action is reviewable upon certificate authorized by W.Va.Code, 58–5–2, As amended." Syl. Pt. 1, Neal v. Huntington Pub. Co. , 159 W. Va. 556, 223 S.E.2d 792 (1976). Therefore, the questions are properly before us.
We note, too, that on the off chance that this Court would have treated the dismissal order as a final order, the Attorney General noticed an appeal of that order, docketed in case no. 19-1199. On February 18, 2020, this Court granted the Attorney General's motion to hold the appeal in case no. 19-1199 in abeyance pending resolution of the questions certified by the circuit court.
II. Standard of Review
"The appellate standard of review of questions of law answered and certified by a circuit court is de novo. " Likewise, "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." "With respect to the term de novo , we have observed it means anew; afresh; a second time. We, therefore, give a new, complete and unqualified review" to the certified question before us.
Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc. , 197 W. Va. 172, 475 S.E.2d 172 (1996).
Syl. Pt. 1, Chrystal R.M. v. Charlie A.L. , 194 W. Va. 138, 459 S.E.2d 415 (1995).
Vanderpool v. Hunt , 241 W. Va. 254, 259, 823 S.E.2d 526, 531 (2019) (cleaned up).
III. Analysis
The questions certified by the circuit court, and its answers, are:
1. Do the provisions of Article 6 of the Consumer Credit and Protection Act, respecting unfair methods of competition and unfair or deceptive acts or practices, apply to religious institutions in connection with their sale or advertisement of educational or recreational services? Answer: No.
2. Does the cumulative impact of the entire relationship between Church and State arising from the Attorney General's application of the Act constitute an excessive entanglement of Church and State prohibited by the constitutions of the United States and the State of West Virginia? Answer: Yes.
But, we are not bound to answer the exact question certified by the circuit court; this Court always retains the power to reformulate certified questions:
When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W.Va. Code , 51-1A-1, et seq. and W.Va. Code , 58-5-2 [1967], the statute relating to certified questions from a circuit court of this State to this Court.[ ]
Syl. Pt. 3, Kincaid v. Mangum , 189 W. Va. 404, 432 S.E.2d 74 (1993).
So, we reformulate the circuit court's first question as follows: 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?
The analysis of the reformulated certified question moots the second question certified by the circuit court. Therefore, we decline to address it. See Wilson v. Bernet , 218 W. Va. 628, 637, 625 S.E.2d 706, 715 (2005) (declining to address certified question rendered moot by answer to preceding question).
We briefly review the precepts of statutory interpretation before turning to the statutes at issue in this case. As always, the Legislature's intent is both our guide and our goal in construing a statute; thus, our mantra: "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." The way is clear when the Legislature has plainly expressed its intent in the language of a statute. "When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute." In doing so, "the words of a statute are to be given their ordinary and familiar significance and meaning, and regard is to be had for their general and proper use." Conversely, "[a] statute that is ambiguous must be construed before it can be applied." An ambiguous statute engenders "doubtfulness, doubleness of meaning or indistinctness or uncertainty of an expression ...."
Syl. Pt. 1, Smith v. State Workmen's Comp. Comm'r , 159 W. Va. 108, 219 S.E.2d 361 (1975).
Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars , 144 W. Va. 137, 107 S.E.2d 353 (1959).
Syl. Pt. 4, id.
Syl. Pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).
Crockett v. Andrews , 153 W. Va. 714, 718, 172 S.E.2d 384, 387 (1970).
With these principles in mind, we first consider the deceptive practices provisions and then turn to West Virginia Code §§ 18-28-1 to 7.
A. The Deceptive Practices Provisions of the CCPA
The Attorney General pleaded causes of action arising under the deceptive practices provisions of the CCPA in his Amended Complaint. He alleged that education and recreation are "services," as that term is defined in the CCPA. Consequently, he reasoned, he may bring deceptive practices claims to regulate the educational and recreational services supplied by a religious institution.
West Virginia Code § 46A-6-104 states: "Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." " ‘Trade’ or ‘commerce’ " is "the advertising, offering for sale, sale or distribution of any goods or services and shall include any trade or commerce, directly or indirectly, affecting the people of this state." " ‘Services’ include[ ] ... ‘privileges with respect to ... education[ and] recreation.’ "
W. Va. Code § 46A-6-104.
Id. § 46A-6-102(6).
Id. § 46A-1-102(47)(b) (1996).
On appeal, the Attorney General posits that because "services" include "privileges with respect to ... education[ and] recreation," then, services—for purposes of the CCPA, at least—include education and recreation. Our review of this issue is de novo and brief. We find that the common and ordinary meaning of "privileges" aligns with those dictionary definitions offered by the Attorney General: "a right or immunity granted as a peculiar benefit, advantage, or favor." Numerous dictionary definitions track this meaning, including the first definition of the word in Black's Law Dictionary : "A special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty." Considered in the context of the CCPA, we see that a "service" includes a peculiar legal right with respect to education or recreation.
See Merriam-Webster Dictionary , "Privilege," available at https://www.merriam-webster.com/dictionary/privilege (last visited October 1, 2020).
See Black's Law Dictionary , "Privilege" 1390 (3d Ed. 2014). See also The Oxford Eng. Dictionary , "Privilege" 522 (2d. Ed., Vol. II 1989) ("A right, advantage, or immunity granted to or enjoyed by a person, or a body or class of persons, beyond the common advantages of others; an exemption in a particular case from certain burdens or liabilities.").
Notably, "peculiar," means "different from the usual or normal." Merriam-Webster Dictionary , "Peculiar," available at https://www.merriam-webster.com/dictionary/privilege (last visited October 1, 2020). So, the right described above, granted in the context of "trade" or "commerce," is different from the "fundamental, constitutional right" to education found in Article 12, § 1 of the West Virginia Constitution. See Syl. Pt. 3, Pauley v. Kelly , 162 W. Va. 672, 255 S.E.2d 859 (1979) ("The mandatory requirements of ‘a thorough and efficient system of free schools’ found in Article XII, Section 1 of the West Virginia Constitution, make education a fundamental, constitutional right in this State.").
See Mountain State College v. Holsinger , 230 W. Va. 678, 684, 742 S.E.2d 94, 100 (2013) (describing private college as "seller of education services"). Compare Alsides v. Brown Inst., Ltd. , 592 N.W.2d 468, 475 (Minn. Ct. App. 1999) (holding that "classes or course instruction provided by a private, proprietary, for-profit educational institution constitute a ‘service’ or ‘intangible’ under the [Minnesota] consumer fraud act"); Malone v. Acad. of Court Reporting , 64 Ohio App.3d 588, 582 N.E.2d 54, 59 (1990) (holding that student-plaintiff had valid claim under Ohio's consumer laws against a paralegal school that allegedly misrepresented its accreditation status and job placement success); Scott v. Ass'n for Childbirth at Home, Int'l , 88 Ill.2d 279, 58 Ill.Dec. 761, 430 N.E.2d 1012, 1015 (1981) (holding that sale of educational services by corporation is trade or commerce under the Illinois consumer fraud statute).
We disagree with the Diocese that the phrase "privileges with respect to" limits application of the deceptive practices provisions of Article 6 to the consumer credit context. Had the Legislature intended that limit, it would have said so by using terms already defined in Article 1, such as "credit," or "consumer credit sale." Instead, the Legislature chose to use an undefined phrase, "privileges with respect to," communicating that (1) something other than credit or a consumer credit sale of education or recreation is a service, and (2) the common, every day meaning of "privilege" controls.
Id. § 46A-1-102(13).
B. West Virginia Code §§ 18-28-1 to 7
While it may be clear that "services," for purposes of the CCPA, include education or recreation, the next step—whether the deceptive practices provisions can regulate those services when a religious institution offers them—is not. That is because a conflict arises when the deceptive practices provisions are applied to a religious institution's educational and recreational services and West Virginia Code §§ 18-28-1 to 7 (2018). Before analyzing that conflict, we briefly recall that "where two statutes are in apparent conflict, the Court must, if reasonably possible, construe such statutes so as to give effect to each." But, "when it is not reasonably possible to give effect to both statutes, the more specific statute will prevail."
Syl. Pt. 4, in part, State ex rel. Graney v. Sims , 144 W. Va. 72, 105 S.E.2d 886 (1958).
Barber v. Camden Clark Mem'l Hosp. Corp. , 240 W. Va. 663, 670, 815 S.E.2d 474, 481 (2018).
The Legislature enacted §§ 18-28-1 to 7—entitled, "Private, Parochial or Church Schools, or Schools of a Religious Order"—in 1983. The Article imposes requirements on "private, parochial or church schools or schools of a religious order" (church schools), such as observance of a 180-day instructional term, maintenance of attendance and immunization records, compliance with the West Virginia school bus safety regulations, administration of a nationally-normed standardized achievement test, and establishment of a school specific crisis response plan. If a church school meets those requirements, then the Legislature has directed that it "shall [not] be subject to any other provision of law relating to education except requirements of law respecting fire, safety, sanitation and immunization."
We shorten the list of the types of schools to which Article 28 applies for the sake of clarity.
W. Va. Code §§ 18-28-2 (2011) and 18-28-3(a) (2018).
Id. § 18-28-6 (1983). An amendment to § 18-28-6 was introduced in 2020 that would have removed the immunization obligation. 2020 W. Va. S.B. 565.
The Diocese contends that § 18-28-6 precludes application of the CCPA to the educational services delivered by its schools, and that the statute makes that "unequivocally clear." The Attorney General acknowledges that the statute "contain[s] preemptory language of [some] kind," but argues that the CCPA does not "relat[e] to education," as is necessary to trigger the preclusive effect of § 18-28-6. The Attorney General also argues that the public policy of § 18-28-6 does not support the exemption of church schools from the policing of consumer transactions under the CCPA.
Neither the Diocese nor the Attorney General uses sufficiently precise language. The issue is not whether § 18-28-6 exempts church schools from the entire CCPA. Rather, we consider whether § 18-28-6 bars the regulation of educational services offered by a church school under the deceptive practices provisions of the CCPA. This more-tailored approach shows that the Attorney General's argument—that when applied as he desires, the CCPA does not relate to education—is wrong.
"The ordinary meaning of [‘relating to’] is a broad one—‘to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with,’ Black's Law Dictionary 1158 (5th ed. 1979)—and the words thus express a broad pre-emptive purpose." Of course, the words "relating to" cannot connote unlimited connections; otherwise, the words would lose their meaning and the precept of statutory construction that "[e]ach word of a statute should be given some effect," would be violated. That is why, as the Eleventh Circuit has explained in a slightly different context, the phrase must have some boundaries:
Morales v. Trans World Airlines, Inc. , 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). See also Phone Recovery Servs., LLC v. Qwest Corp. , 919 N.W.2d 315, 320 (Minn. 2018) (adopting plain language definition of "relating to" from Morales to discern claims "relating to taxation," and, so exempt from regulation under the Minnesota Fraudulent State Claims statute).
Syl. Pt. 6, in part, State ex rel. Cohen v. Manchin , 175 W. Va. 525, 336 S.E.2d 171 (1984).
Similarly, "related to" marks a boundary by indicating some direct relationship; otherwise, the term would stretch to the horizon and beyond. As the Supreme Court has explained in the ERISA pre-emption context, "related to" is limiting language and "[i]f ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy," it would have no limiting purpose because "really, universally, relations stop nowhere." N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. , 514 U.S. 645, 655, 115 S.Ct. 1671, 1677, 131 L.Ed.2d 695 (1995) (quotation marks omitted).[ ]
Doe v. Princess Cruise Lines, Ltd. , 657 F.3d 1204, 1218–19 (11th Cir. 2011).
We fail to see how the deceptive practices provisions are not "provisions of law relating to education" when the Attorney General tries to apply them to educational services. The Attorney General argues that he attempts only to regulate the relationship between the church schools and the consumers who buy their educational services. That commercial relationship, he suggests, cannot be one "relating to education"; otherwise, he argues, church schools are exempt from nearly every provision of law that could conceivably apply to them—something the Legislature could not have intended.
We are not persuaded. The Attorney General's argument misses this key point: while the deceptive practices provisions may regulate the commercial relationship between a church school and consumers, its enforcement depends on the assessment of the qualities of the education actually supplied by the church school. In other words, one cannot determine whether a church school has (1) misrepresented the qualities of its educational services, (2) omitted a material fact about them, or (3) engaged in other deceptive practices regarding their substance, without passing judgment upon the substantive educational services actually provided. Viewed in reverse, the deceptive practices provisions of the CCPA would necessarily regulate the substance of the education provided by the church school when they impose liability if the educational services delivered do not match those promised.
That conflict makes it impossible to give effect to both the deceptive practices provisions and §§ 18-28-1 to 7. "The general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter where the two cannot be reconciled." As §§ 18-28-1 to 7 specifically regulate church schools—to the exclusion of other provisions of law relating to education —those statutes must prevail over the deceptive practices provisions as the Attorney General attempts to apply them, here, to give effect to the Legislature's intent.
Syl. Pt. 1, UMWA by Trumka v. Kingdon , 174 W. Va. 330, 325 S.E.2d 120 (1984).
We emphasize that a church school is not entitled to the exemption of § 18-28-6 if it is not in compliance with the requirements of Chapter 18, Article 28.
C. Services of a Religious Institution
The clearly pronounced public policy behind West Virginia Code §§ 18-28-1 to 7 leads us to conclude that the Legislature also did not intend to empower the Attorney General to regulate a religious institution's educational and recreational services under the deceptive practices provisions of the CCPA. The Legislature stated this broad policy in § 18-28-1 (1983):
In conformity with the constitutions of the United States and of West Virginia, it is the public policy of the State in matters of education that no human authority shall, in any case whatever, control or interfere with the rights of conscience or with religious liberty and that no person shall be enforced, restrained, molested or burdened, in body or goods, or otherwise suffer, on account of his or her religious opinions or belief, but all people shall be free to profess, and by argument, to maintain their opinions in matters of religion; and further be free to select their religious instructor, and to make for his or her support, such private contract as they shall please, and that religion, morality and knowledge being necessary to good government and the happiness of humankind, the means of education shall forever be encouraged.
As explained above, enforcement of the deceptive practices provisions depends on an assessment of the nature of the education actually supplied by the church school. The Attorney General's position—that he is empowered to apply those provisions to the educational and recreational services offered by a religious institution , rather than just a school operated by the institution—necessarily undermines the public policy of § 18-28-1, the prohibition of § 18-28-6, and reason.
Consider a church-sponsored fee-based trip: could the Legislature have intended the Attorney General to regulate a religious institution's representations about the trip but not representations made by its affiliated church school? That is absurd. It would also be absurd to conclude that the Legislature intended to exempt a church school's representations about its educational services from regulation under the deceptive practices provisions of the CCPA, but not those same representations when made by the affiliated religious institution regarding its recreational services.
"This Court has recognized that the CCPA is a remedial statute intended to protect consumers from unfair, illegal and deceptive business practices, and must be liberally construed to accomplish that purpose." To that end, the Legislature has directed that the deceptive practices provisions "shall be liberally construed so that its beneficial purposes may be served." We are also cognizant that those provisions are "among the most broadly drawn provisions contained in the Consumer Credit and Protection Act and [they are] also among the most ambiguous." So, without a clear statement from the Legislature as to how it intended the deceptive practices provisions to interact with §§ 18-28-1 to 7, we must determine the reach of the deceptive practices provisions by applying our tools—the rules of statutory construction—to the materials available.
Harper v. Jackson Hewitt, Inc. , 227 W. Va. 142, 151, 706 S.E.2d 63, 72 (2010).
W. Va. Code § 46A-6-101 (2015).
McFoy v. Amerigas, Inc. , 170 W. Va. 526, 529, 295 S.E.2d 16, 19 (1982).
We cannot ignore the public policy expressed by the Legislature in §§ 18-28-1 to 7 and its apparent conflict with application of the deceptive practices provisions to educational and recreational services offered by a religious institution. Nor can we overlook the absurd results of resolving that conflict by construing those statutes to regulate a church school's representations about its educational and recreational services, but not a religious institution's. " ‘Where a particular construction of a statute would result in an absurdity, some other reasonable construction, which will not produce such absurdity, will be made.’ Syl. Pt. 2, Newhart v. Pennybacker , 120 W.Va. 774, 200 S.E. 350 (1938)." As we stated in 1925:
Syl. Pt. 3, Sheena H. ex rel. Russell H. ex rel. L.H. v. Amfire, LLC , 235 W. Va. 132, 772 S.E.2d 317 (2015).
It is the duty of a court to construe a statute according to its true intent, and give to it such construction as will uphold the law and further justice. It is as well the duty of a court to disregard a construction, though apparently warranted by the literal sense of the words in a statute, when such construction would lead to injustice and absurdity.[ ]
Syl. Pt. 2, Click v. Click , 98 W.Va. 419, 127 S.E. 194 (1925).
So, we hold that the deceptive practices provisions, W. Va. Code §§ 46A-6-101 to 106 (2015), in the West Virginia Consumer Credit and Protection Act do not apply to or regulate the educational or recreational services offered by a religious institution.
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. The faithful trust their leaders to embody the tenets of the faith. 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. While we recognize that violations of this trust may subject the Diocese to liability under other legal theories, our sympathy cannot rewrite the law and we cannot ignore the existence and import of §§ 18-28-1 to 7 and its conflict with the deceptive practices provisions when applied to the educational and recreational services of a religious institution.
Nothing in our decision today relieves a religious institution, or a school or camp operated by a religious institution, from its obligation to maintain a safe environment or its obligation to comply with other provisions of law as the case may be. For example, our mandated reporter statute, West Virginia Code § 49-2-803 (2018), requires school teachers, youth camp administrators and counselors, and members of the clergy, inter alia , to timely report reasonable suspicions of child abuse neglect or abuse—including sexual abuse or sexual assault—to the West Virginia Department of Health and Human Resources or law enforcement, depending on the severity of the suspected abuse. Id. § 49-2-803(a). A mandated reporter who fails in his duty, or prevents another from doing so, is guilty of a misdemeanor and subject to a $5,000 fine or up to a 90-day term of confinement. Id. § 49-2-812(a). If he fails to report a case involving the sexual abuse of a child on school premises , he is likewise guilty of a misdemeanor, and subject to $10,000 fine or up to six months of confinement. Id. § 49-2-812(b).
We emphasize that the circuit court asked for an answer to a narrow legal question, and that is what we have supplied. As we have cautioned before when answering a different certified question regarding the reach of the deceptive practices provisions of the CCPA,
this opinion should not be read as an attempt to in any way diminish the power of the office of the Attorney General. This Court recognizes and respects the powers granted the Attorney General by the Constitution and by statute, including the authority to enforce the provisions of the consumer protection act. Rather, it must
be understood that the legal issue before us is a narrow one and that our resolution of this issue rests, as explained above, solely on this Court's understanding of the Legislature's intent in drafting W.Va. Code § 46A–6–104.[ ]
State ex rel. McGraw v. Bear, Stearns & Co. , 217 W. Va. 573, 579, 618 S.E.2d 582, 588 (2005).
IV. Conclusion
For the reasons discussed above, we answer the reformulated certified question as follows:
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? Answer: No.
Certified Question Answered.
JUSTICE WORKMAN dissents and reserves the right to file a separate opinion.
WORKMAN, J., dissenting:
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 West Virginia Consumer Credit and Protection Act (hereinafter "CCPA") prohibits unfair methods of competition and unfair or deceptive acts or practices when advertising or selling any goods or services, including educational and recreational services. W.Va. Code §§ 46A-6-104, - 1-102(47) (2015). Additionally, pursuant to the provisions of the CCPA, advertisements based on false promises and sales that conceal or omit material facts are within the reach of the statute. W.Va. Code §§ 46A-6-102 (7)(I), (L), (M) (2015).
In March 2019, the Attorney General of West Virginia (hereinafter "the Attorney General") on behalf of the State of West Virginia filed the underlying action against the Diocese of Wheeling Charleston and Michael Bransfield in his capacity as former Bishop of the Diocese of Wheeling-Charleston (hereinafter "the Diocese") alleging three violations of the CCPA in advertising and selling educational and recreational, specifically camps, services to the public. According to the amended complaint, the Diocese advertises and sells services to parents of children from kindergarten through high school and has nineteen elementary schools and six high schools serving over 5,000 children in West Virginia. Yearly fees for the educational services range from $6,000 to $8,000. The Diocese also provides partial scholarships, arranges financing through third parties, and uses in-house installment payment plans. Just as any other creditor may act, the Diocese has availed itself of the courts and legal system to enforce credit agreements.
It is alleged that the Diocese advertises to the public at large. Its schools and camps accept children and youth of all faiths and denominations and those of no faith. The Diocese has advertised since at least 1974 in various forms of media so as to compete for children who might otherwise attend other public or private schools.
According to the amended complaint, in 2002, the Diocese adopted a Safe Environment Program for the protection of minors from abuse by religious and lay employees of the Diocese and volunteers. The Safe Environment Program consisted of items such as background check requirements and policies regarding child sexual abuse and awareness training. The Diocese promoted the Safe Environment Program and the policies on its website promising a safe learning environment and informing the reader that employees and volunteers must pass background checks, be fingerprinted, and be trained in accordance with the Safe Environment Program policies. Like any other seller of for-fee educational and recreational services, the advertising and marketing goal seeks to promote its product in order to gain a competitive advantage. Certainly, by promoting safety initiatives, the Diocese sought to attract consumers away from competitors that did not advertise similar safety measures.
However, 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.
The Diocese filed a motion to dismiss. Upon briefing and oral argument, the circuit court certified two questions. The first question asked whether the CCPA prohibitions against unfair or deceptive acts or practices applied to the advertising of educational and recreational services by religious institutions. The second question asked whether applying the CCPA to religious entities selling or advertising educational or recreational services violated the religion clauses of the federal and state constitutions by causing excessive entanglement of church and state.
The majority reformulated the certified questions, but in doing so fell into the same proverbial rabbit hole as the circuit court did in framing the question in terms of religious institutions. The reframed question asks: "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?" Both the certified questions and the reframed question unnecessarily interject religion into a statute directed solely at protecting consumers from unfair, misleading or deceptive advertising, none of which infringes upon or is directed at constitutionally protected religious rights. The advertising at issue does not implicate religious principles. Nor does enforcement of the CCPA as to deceptive advertising carry with it any infringement on religion.
Rather, what is at issue is a matter of purely secular concern—providing a safe environment at school and at play. Specifically, if a seller of services seeks to compete in the marketplace with advertisement, then the seller must do so fairly and honestly. Not only does acting fairly and honestly serve the remedial purpose of the CCPA in protecting consumers, it also promotes sound business practices.
What is truly remarkable is that on the essential issue at the very core of this case the majority wholly adopts the reasoning of the State with respect to whether "services" as used in the CCPA includes education and recreation. The majority applied basic and common definitions to words in the text of the CCPA in order to conclude that the term "services" as used in the CCPA included education and recreation.
So far—so good. Given the framing of the amended complaint, together with the fact that the proceedings are at the motion to dismiss stage, that should have concluded the matter. However, the majority proceeded to embark upon a misdirected effort at attacking a strawman position regarding religion; a position advanced by the Diocese and a complete red-herring. But, because it obviously did not want to engage in the heavy lifting of a meaningful, though complex and challenging examination of any religious rights implications, the majority chose to manufacture a nonexistent statutory conflict with a wholly unrelated statute. The conflict was manufactured in order to exempt religious institutions from compliance with the CCPA protections of consumers from unfair or deceptive acts and practices or false promises and concealment of material facts in advertising to the general public.
The purported conflict is said to be with the statutory provisions of "Private, Parochial or Church Schools, or Schools of a Religious Order." W. Va. Code §§ 18-28-1 to - 7 (2016). The provisions of the statute places requirements on such institutions regarding matters consisting of minimum instructional days and average hours per day, maintenance of attendance and immunization records, the development and maintenance of school specific crisis plans, compliance with reasonable fire, health and safety inspections by state, county and municipal authorities, and compliance with bus safety regulations. Id. § 18-28-2. The statute also provides for standardized testing requirements and permits voluntary participation in state programs and opportunities. Id. §§ 18-28-3, 4. These various requirements allow such schools to satisfy West Virginia's compulsory attendance requirements. When religious institutions meet such requirements with respect to schools, the statute provides that they "shall [not] be subject to any other provision of law relating to education except requirements of law respecting fire, safety, sanitation and immunization." Id. § 18-28-6 (emphasis added). The artificially created conflict is said to stem from the "relating to education" terminology of the statute. By fiat, the majority proceeded to conclude that whether the "relating to education" commands that enforcement of the deceptive practices provisions of the CCPA depends on assessing the qualities and substance of the education actually provided. This is a bald assertion unsupported by facts or analysis. As pled in the instant matter, there is simply no reason to delve into assessments of qualities or "pass judgment on the substantive educational services actually provided" in order to enforce the provisions of the CCPA.
There is no irreconcilable conflict between the provisions of West Virginia Code §§ 18-28-1 to - 7 and the CCPA. The CCPA relates to consumer protection; not to regulating the quality or substance of educational services. Specifically, the CCPA goes to marketing, and, in the context of the instant matter, the marketing of educational and recreational services. It has as its purpose the broad and remedial goal of protecting consumers and promoting fair and honest competition. Requiring fairness when selling advertising and selling educational and recreational services simply does not interfere with the services themselves. Rather, it is the marketing of the services that is at issue.
The majority has ignored a cardinal principle of statutory construction that unless there is an irreconcilable conflict, statutes relating to the same subject matter "should be read and applied together" and construed "so as to give effect to each." Syl. Pts. 8 and 9, in part, Barber v. Camden Clark Mem'l Hosp. Corp. , 240 W.Va. 663, 815 S.E.2d 474 (2018). Here, the provisions of the CCPA can readily co-exist with the school attendance, testing, and health and safety requirements of West Virginia Code §§ 18-28-1 to - 7, which does not address the advertisement or sale of educational services. Announcing that the CCPA and the education statute are in conflict flies in the face of the fact that CCPA actions are routinely advanced as to other statutorily regulated activities without conflict. See, e.g., Cavalry SPV 1, LLC v. Morrisey , 232 W.Va. 325, 752 S.E.2d 356 (2013) (CCPA actions are viable even though collection agencies must possess licenses, file surety bonds, and register with the tax department); State ex rel. McGraw v. Telecheck Servs., Inc. , 213 W.Va. 438, 582 S.E.2d 885 (2003) (CCPA action against credit reporting agency otherwise regulated federally); State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc. , 194 W.Va. 770, 461 S.E.2d 516 (1995) (CCPA actions are viable as to automobile dealers despite other regulations). Moreover, West Virginia Code §§ 18-28-1 to - 7 simply do not regulate commercial components or consumer-focused marketing transactions. The two are not in tension, let alone conflict!
Additionally, the Court is not faced with statutory silence because the CCPA explicitly includes fairness regarding educational services advertising and the majority correctly recognized this fact. The CCPA is a neutral and generally applicable remedial statute applying to consumer transactions. The legislative reach of protecting consumers with respect to educational services is plain. The Legislature could have exempted private, religious institutions from the CCPA, but it did not. Other types of enterprises were exempted from various portions of the CCPA including lawyers, accountants, stockbrokers, and licensed pawnbrokers. W. Va. Code §§ 46A-6C-2(b), -6F-202, -1-105(a)(5). "It is not for this Court arbitrarily to read into [a statute] that which it does not say." Banker v. Banker , 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996). Here, in the face of explicit statutory inclusion found by the majority, the majority then decided to read into the CCPA an exclusion due to a purported conflict that the majority is unable to define or articulate. The two statutes contemplate distinct purposes. The private religious education statute does not purport to govern advertisement of education services. The CCPA does not purport to govern the delivery of substantive educational services. Nothing in either statute forecloses the application of the other.
An example is in order. Suppose that a religious institution advertises that the fees for a year of educational services are all-inclusive but for certain extra-curricular opportunities. Then, half-way through the school year, parents receive a building maintenance and utility charge requiring immediate payment or suffer the suspension of non-paying students. Suppose, further, that parents learn this has been a routine practice over several years that deflates the advertised cost of schools by fifteen percent. Consider the Unitarian Universalist institution or the Quaker Religious Society of Friends falsely marketing their educational programs as having ten to one student teacher ratios. Cost and class size are important considerations of consumers in making their educational services selection. Under the majority's reasoning, religious institution are given license and incentive to make material misrepresentations about commercial, fee-generating educational ventures that have absolutely nothing to do with religious tenets, while a secular institution is subject to regulation, enforcement, and penalties.
Turning to an additional sleight of hand, most incredible is the sophistry exhibited in the opinion's bootstrapping into its unfounded conclusion the issue of recreational services. Specifically, West Virginia Code §§ 18-28-1 to - 7 have no application whatsoever to recreational services or camps—none. That black letter fact did not prevent the majority from proceeding to simply add in "and recreational services" throughout the remainder of the opinion. This blatant bit of magic finds its way into the new syllabus point where it too will likely result in damage in the future. Imagine, if you will, religious institutions offering summer camps consisting of activities such as outdoor leadership and adventures, whitewater rafting, rock climbing, caving, mountain biking, football and marketing these for-fee camps as having fully certified professionals with thousands of hours of training in serving youth, emergency medical training, and qualified nurse practitioners on site. What if it simply was not true? There will be no recourse under the CCPA for the consumers who were deceived and the Attorney General will be deprived of his or her enforcement responsibilities. The commercial, nonreligious private entities offering similar camps and programs will be competitively disadvantaged. The Legislature's goal of remedial legislation to be liberally construed will be soundly frustrated. Clearly, the nonsensical and unsupported leap from educational services to recreational services is illogical and lacks any statutory support—contrived or otherwise.
That portion of the majority opinion styled as "Services of a Religious Institution" is equally troubling in its willingness to merge issues and make pronouncements utterly void of any jurisprudential consideration. Simply quoting laudatory language of the public policy expressed in the relied-upon education statute promoting the uncontroversial concepts of religious liberty, religious opinions and beliefs, and the freedom to select religious instructors does not support a conclusion that the deceptive practices provisions of the CCPA depends on assessing the nature of the education supplied. How the public policy goal of keeping state law separate from intruding upon the content of religious instruction and thought precludes application of consumer protection provisions to marketing and advertising to the public at large, which in this case was about providing a safe environment, is left unexplained. Nothing about protecting or promoting religious freedom prevents appropriate protection of the consuming public relative to ensuring fair and honest competition under the CCPA. And, as already observed, nothing about the statute applies to recreational activities. See W. Va. Code §§ 18-28-1 to - 7.
To use the majority's own language, the opinion is an "absurdity." Consider another example. Recognize first that the CCPA does not require educational or recreational services to do or undertake any certain acts. Suppose a religious institution—let's say a Jewish institution—advertises, to the public at large in order to attract educational or recreational customers, that they maintain security guards, metal screening at entrances, and exterior surveillance. But, in fact, they do not maintain such services. Thus, the advertisement is false. Again, the remedial purpose of the CCPA in protecting consumers from unfair, illegal, and deceptive acts and practices is destroyed. And, nothing about religious freedom, thought, or instruction is infringed upon by virtue of enforcing an act mandating that entities offering services for-fee tell the truth about the services. Consider an institution of Hindus and Buddhists organizing for the purpose of offering for-fee recreational yoga camps for the public and advertising that they will be led by individuals with specialized advanced training consisting of 1,000 hours from certified immersion-based programs. But, instead, the instructors have mere on-line, at home thirty-hour training certificates. Thus, there is patently false advertising with no enforcement action available.
The principle the majority ignores is that while the CCPA does not dictate to religious, or other, entities, what they can do in terms of education or recreational services; it does prohibit all entities, religious or not, from making representations that are demonstrably and materially false in their advertisements and marketing to the citizens of this State. The CCPA does not regulate or interfere with religious thought or education. It does not dictate doctrinal principles, disciplinary processes, curriculum choices, testing, or internal religious affairs. And, in the instant case, the State repeatedly strives in pleadings and in argument to demonstrate that it has no intention, and does not seek, to intrude upon internal religious affairs, thought or teaching. It seems the majority opinion is driven to its result-oriented conclusions by an underlying concern that applying the CCPA to marketing for-fee schools and camps by religious institutions would result in overly broad enforcement actions and improper remedies. But those issues are not before this Court. Certainly, remedies must be fashioned to fit whatever facts are proven and they must not infringe on religious freedoms. However, those are matters for another day with developed facts and proposed remedies. Allowing issues of remedies to confound application and enforcement of the CCPA is tantamount to allowing the tail to wag the dog.
In conclusion, 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.
Accordingly, I respectfully dissent.