State of West Virginia ex rel. Patrick Morrisey v. Diocese of Wheeling-Charleston and Michael J. Bransfield

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term

_______________ FILED

November 16, 2020

No. 19-1056 released at 3:00 p.m.

______________ EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

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

____________________________________________________________

Certified Questions from the Circuit Court of Wood County

The Honorable J.D. Beane, Judge

Civil Action No. 19-C-69

CERTIFIED QUESTION ANSWERED

____________________________________________________________

Submitted: September 22, 2020

Filed: November 16, 2020

Patrick Morrisey, Esq. James C. Gardill, Esq.

Attorney General Richard N. Beaver, Esq.

Lindsay S. See, Esq. Edward M. George, III, Esq.

Solicitor General Phillips, Gardill, Kaiser

Douglas P. Buffington, II, Esq. & Altmeyer, PLLC

Senior Deputy Attorney General Wheeling, West Virginia

Douglas L. Davis, Esq.

Abby G. Cunningham, Esq.

Assistant Attorneys General Christopher A. Brumley, Esq.

Charleston, West Virginia Flaherty Sensabaugh Bonasso, PLLC

Charleston, West Virginia

Counsel for Petitioner

Counsel for Respondents

JUSTICE WALKER delivered the Opinion of the Court.

JUSTICE WORKMAN dissents and reserves the right to file a separate opinion.

SYLLABUS BY THE COURT

1. “The appellate standard of review of questions of law answered and

certified by a circuit court is de novo.” Syllabus Point 1, Gallapoo v. Wal-Mart Stores,

Inc., 197 W. Va. 172, 475 S.E.2d 172 (1996).

2. “Where 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.” Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415

(1995).

3. “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.”

Syllabus Point 3, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993).

4. “The primary object in construing a statute is to ascertain and give

effect to the intent of the Legislature.” Syllabus Point 1, Smith v. State Workmen’s Comp.

Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975).

i

5. “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.” Syllabus Point 5, State v. Gen. Daniel

Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).

6. “Generally 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.”

Syllabus Point 4, State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars,

144 W. Va. 137, 107 S.E.2d 353 (1959).

7. “A statute that is ambiguous must be construed before it can be

applied.” Syllabus Point 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).

8. “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.” Syllabus Point 1, UMWA by Trumka v.

Kingdon, 174 W. Va. 330, S.E.2d 120 (1984).

9. “‘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).”

ii

Syllabus Point 3, Sheena H. ex rel. Russell H. ex rel. L.H. v. Amfire, LLC, 235 W. Va. 132,

772 S.E.2d 317 (2015).

10. “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.” Syllabus Point 2, Click v. Click, 98 W. Va. 419, 127 S.E. 194 (1925).

11. 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.

iii

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?” 1 For the reasons

discussed below, we answer “No.”

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

1

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.

1

Act (CCPA), West Virginia Code §§ 46A-6-101 to 106 (2015). 2 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. 3 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 4 and Failure to Warn

of Dangerous Services. 5

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

2

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.”

3

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.

4

W. Va. Code §§ 46A-6-104 and 46A-6-102(7)(I), (L), and (M) (2015).

5

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.

2

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. 6

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. 7

6

See W. Va. Code §§ 46A-6-104 and 102(7)(L) and (M).

7

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

3

II. Standard of Review

“The appellate standard of review of questions of law answered and certified

by a circuit court is de novo.” 8 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.” 9 “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. 10

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

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.

8

Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W. Va. 172, 475 S.E.2d 172,

(1996).

9

Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).

10

Vanderpool v. Hunt, 241 W. Va. 254, 259, 823 S.E.2d 526, 531 (2019) (cleaned

up).

4

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.[11]

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? 12

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

11

Syl. Pt. 3, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993).

12

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).

5

statute is to ascertain and give effect to the intent of the Legislature.” 13 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.” 14 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.” 15 Conversely, “[a] statute that is ambiguous must be construed before it can be

applied.” 16 An ambiguous statute engenders “doubtfulness, doubleness of meaning or

indistinctness or uncertainty of an expression . . . .” 17

With these principles in mind, we first consider the deceptive practices

provisions and then turn to West Virginia Code §§ 18-28-1 to 7.

Syl. Pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d

13

361 (1975).

Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign

14

Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).

15

Syl. Pt. 4, id.

16

Syl. Pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).

17

Crockett v. Andrews, 153 W. Va. 714, 718, 172 S.E.2d 384, 387 (1970).

6

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.” 18 “‘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.” 19 “‘Services’ include[] . . . ‘privileges with

respect to . . . education[ and] recreation.’” 20

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

18

W. Va. Code § 46A-6-104.

19

Id. § 46A-6-102(6).

20

Id. § 46A-1-102(47)(b) (1996).

7

dictionary definitions offered by the Attorney General: “a right or immunity granted as a

peculiar benefit, advantage, or favor.” 21 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.” 22 Considered in the context of the CCPA, we see that a “service” includes a

peculiar 23 legal right with respect to education or recreation. 24

21

See Merriam-Webster Dictionary, “Privilege,” available at https://www.merriam-

webster.com/dictionary/privilege (last visited October 1, 2020).

22

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.”).

23

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.”).

24

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, 582 N.E.2d 54, 59 (Ohio Ct. App. 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, 480 N.E.2d 1012, 1015 (Ill. 1981) (holding that sale of

8

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,” 25 or “consumer credit sale.” 26 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.

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

educational services by corporation is trade or commerce under the Illinois consumer fraud

statute).

25

W. Va. Code § 46A-1-102(17).

26

Id. § 46A-1-102(13).

9

give effect to each.” 27 But, “when it is not reasonably possible to give effect to both

statutes, the more specific statute will prevail.” 28

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), 29 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. 30 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.” 31

27

Syl. Pt. 4, in part, State ex rel. Graney v. Sims, 144 W. Va. 72, 105 S.E.2d 886

(1958).

28

Barber v. Camden Clark Mem’l Hosp. Corp., 240 W. Va. 663, 670, 815 S.E.2d

474, 481 (2018).

29

We shorten the list of the types of schools to which Article 28 applies for the sake

of clarity.

30

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

31

would have removed the immunization obligation. 2020 W. Va. S.B. 565.

10

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.” 32 Of course, the words “relating to” cannot connote

32

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992). See also Phone

Recovery Servs., LLC v. Qwest Corp., 919 N.W.2d 315, 320 (Minn. 2018) (adopting plain

11

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. 33 That is why, as the Eleventh Circuit has explained in a slightly different

context, the phrase must have some boundaries:

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).[34]

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

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

33

171 (1984).

34

Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1218–19 (11th Cir. 2011).

12

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.” 35 As §§ 18-28-1 to 7 specifically

regulate church schools—to the exclusion of other provisions of law relating to

35

Syl. Pt. 1, UMWA by Trumka v. Kingdon, 174 W. Va. 330, 325 S.E.2d 120 (1984).

13

education 36—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.

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

36

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.

14

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.” 37 To that end, the Legislature has directed

that the deceptive practices provisions “shall be liberally construed so that its beneficial

purposes may be served.” 38 We are also cognizant that those provisions are “among the

most broadly drawn provisions contained in the Consumer Credit and Protection Act and

37

Harper v. Jackson Hewitt, Inc., 227 W. Va. 142, 151, 706 S.E.2d 63, 72 (2010).

38

W. Va. Code § 46A-6-101 (2015).

15

[they are] also among the most ambiguous.” 39 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.

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).” 40

As we stated in 1925:

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

39

McFoy v. Amerigas, Inc., 170 W. Va. 526, 529, 295 S.E.2d 16, 19 (1982).

40

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).

16

literal sense of the words in a statute, when such construction

would lead to injustice and absurdity.[41]

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. 42

41

Syl. Pt. 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925).

42

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

17

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.[43]

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

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).

43

State ex rel. McGraw v. Bear, Stearns & Co., 217 W. Va. 573, 579, 618 S.E.2d

582, 588 (2005).

18

recreational services offered by a religious institution?

Answer: No.

Certified Question Answered.

19