Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, March 28, 1991 TAG: 9103280087
SECTION: VIRGINIA PAGE: B-6 EDITION: METRO
SOURCE: CODY LOWE RELIGION WRITER
DATELINE: LENGTH: Medium
The Rutherford Institute of Charlottesville has received an extension from the U.S. Supreme Court to file an appeal. The group still is waiting to hear if it will receive certification from the Virginia high court to become a party in the case.
John W. Whitehead, a constitutional lawyer and founder of the institute, said the organization began legal moves about a week and a half ago to join the case.
The 90-day limit for filing an appeal would have expired in mid-April without the extension, which now gives the institute until June. Should the appeal be accepted, it likely would be several months before it is heard.
Mark DeMoss, administrative aide to Liberty University Chancellor Jerry Falwell, said Wednesday that the university will serve "only as a cheerleader" and does not expect to "devote one hour of time to the case, even if it takes a year."
In January, Falwell denounced the state court's decision to deny the university access to $60 million in tax-free industrial development bonds, but said the university had decided not to appeal because of the costs involved.
That decision has not changed, DeMoss said Wednesday, although the university is "more than willing for somebody else to carry the case another step."
Whitehead and DeMoss had different versions of how The Rutherford Institute got involved.
In a telephone interview Wednesday, Whitehead said the timing was based "on the client's decision . . . after much prayer and consideration . . . to move forward."
DeMoss contended that Liberty University was not involved in the appeal and had not initiated any contact with the institute, which was not involved in the case in the lower courts. "This is a Rutherford Institute case, not a Liberty University case."
DeMoss suggested that the law firm that handled Liberty's original case may have contacted Whitehead about the appeal. No one from that firm - Kutak, Rock and Campbell of Omaha, Neb. - would comment on the case Wednesday.
Whitehead said the appeal would be based on the contention that the industrial development bonds would not be "unconstitutional state aid."
He discounted the position of bond opponents, that allowing the university to issue the tax-free bonds would violate the First Amendment.
The U.S. Supreme Court recently has expressed a willingness to "rethink" what constitutes inappropriate entanglement of church and state, Whitehead said, and he believes the timing is right to let the justices hear this case.
He said Liberty University accepted the Virginia Supreme Court's determination that the school is "pervasively religious," but rejected its conclusion that such an institution should be ineligible for the development bonds.
The state Supreme Court ruled that Liberty - unlike some religious schools - has a primary aim of religious instruction and not liberal-arts education.
The Lynchburg Industrial Development Authority had approved $60 million worth of bonds for Liberty. The bonds would have saved the school $2 million to $3 million a year in interest compared with conventional taxable bonds, Liberty officials said.
The bond issue was challenged by two Lynchburg taxpayers who lost at the Circuit Court level but won their appeal to the Virginia Supreme Court.
Americans United for the Separation of Church and State, a national group that provided legal assistance for the taxpayers' appeal, will rejoin the battle, according to spokesman Robb Conn. He said a motion was to be filed this week challenging The Rutherford Institute's status as an intervenor.
Loss of the bond issue and subsequent problems securing taxable bonds have put the school in a financial bind. DeMoss said Wednesday that the potential appeal will not affect Liberty's continuing search for new debt refinancing.
The Associated Press contributed information for this story.
by CNB