Because the Islamic Center of Murfreesboro is built and under operation, the Tennessee State Court of Appeals could declare the ongoing lawsuit of no significance at this point, allowing it to remain open.
“If the center is open and active, why is this not moot?” Appellate Judge Andy Bennett asked Rutherford County Attorney Josh McCreary during oral arguments Tuesday morning in Kevin Fisher et al. v. Rutherford County, otherwise known as the Murfreesboro mosque case.
McCreary responded the case isn’t exactly “moot,” even though the center is open because a federal action is still pending.
A federal judge stayed Chancellor Robert Corlew’s April 2012 decision that the Rutherford County Planning Commission failed to provide adequate public notice prior to approving construction of the Islamic Center during a May 24, 2010, regularly scheduled meeting because it didn’t place notice in a variety of media.
“If Chancellor Corlew’s order is allowed to stand, then the center has no occupancy permit and is open illegally,” McCreary explained.
Corlew also issued a “heightened notice requirement,” McCreary added, which said the Planning Commission should have utilized multiple media outlets to inform residents about the Islamic Center proposal. This is not required under current state law.
McCreary tried to explain the heightened notice ruling could cause problems, but Bennett interjected that all of Corlew’s rulings would be vacated and would not apply anymore, should the appeals court find the issue moot.
Later in the oral arguments, Bennett posed the same questions to plaintiff’s attorney Joe Brandon.
To which Brandon responded that the case is not moot beacuse the Islamic Center is operating illegally and “is an organ of the Muslim Brotherhood.”
Bennett responded because it is already built and in use and the plaintiff’s aim was to keep it from being built, then they were arguing over a case that has already resolved itself and could very well be moot.
“But the rights of the people must override the will of the government,” Brandon replied.
Bennett’s response was to ask for Brandon’s summation.
Prior to the justices questioning of Brandon, The Murfreesboro Post attorney David LaRoche argued the chancellor unnecessarily created controversy when none existed prior to the Islamic Center lawsuit, yet he declined to rule on its status as a newspaper of general circulation.
As a result of those doubts being raised, he is arguing The Post has suffered a decline in advertising revenue for many types of legal notices even though it meets the definition of a newspaper of general circulation under Tennessee law.
The justices seemed unmoved by the arguement.
“The court held ultimately that the notice was inadequate, not because of your notice, but how the county ultilized your notice,” Judge Richard Dinkins said. “I don’t see how that creates a controversy for your newspaper.”
LaRoche replied,"The way it worked out was that, in common terms, we were thrown under the bus and we’re stuck underneath it.”
The Court of Appeals could take between three months and one year to issue a ruling, capping off a nearly three-year battle between opponents of the Islamic Center, who have fought to stop construction of the new mosque, located on Veals Road off Bradyville Pike in Murfreesboro.
In addition to touting the issue as a terrorism concern, Islamic Center opponents have based much of their argument on the assertion that a public notice published May 2, 2010, in The Post was insufficient because, at that time, it was not a newspaper of general circulation.