CLARKSBURG - The new defense team in the Jesus of Bridgeport case has filed a motion to dismiss the federal lawsuit that claims the hanging of a religious portrait in the halls of Bridgeport High School is illegal.

Benjamin Bull, Gary McCaleb and Nathan Kellum of the Alliance Defense Fund filed the motion Wednesday. The ADF is giving the Harrison County Board of Education free representation against a lawsuit brought on by the American Civil Liberties Union of West Virginia and Americans United for the Separation of Church and State.

The dispute is over a reproduction of Warner Sallman's "Head of Christ," which hung in Bridgeport for almost 40 years before it was stolen more than a month ago.

The lawsuit was filed by Harrison County residents Harold Sklar and Jacqueline McKenzie June 28 in federal court for the Northern District of West Virginia.

Recently, the school board voted not to re-hang the portrait if it is recovered, and the plaintiffs offered a settlement.

However, Rodney Bean of Steptoe and Johnson, acting as local counsel for the defense, said his side has not accepted the terms.

"The claims for injunctive relief and declaratory relief are now moot and should be dismissed," the motion to dismiss says.

"The reproduction no longer hangs in Bridgeport High School. With the painting missing, so is any possible harm to the plaintiffs.

"A case or controversy does not exist, and the claims for prospective relief should be denied."

It also claims the two-year statute of limitations has run out on Sklar and McKenzie making a complaint since the two have known of the portrait's existence since the 1990s, and that their complaint does not sufficiently make their case because they allege no spiritual injury or a failure to control their children.

"The plaintiffs allege only an abstract disagreement with a painting," it says.

The plaintiffs attorneys filed for more time to reply to the motion to dismiss, saying that lead counsel Richard Katskee of the AUSCS has been on vacation and will not return until Sept. 25. Their amended complaint is scheduled to be submitted by Oct. 6, too.

The board has voted twice to fight the lawsuit, despite the warnings of board attorney Richard Yurko. It has also raised approximately $150,000 for plaintiffs lawyers fees if they must pay them in the future.

The issue appeared to be reaching a conclusion before its scheduled February trial when the board voted that even if the portrait is recovered, it will not be re-hung.

Surveillance tapes show a white male weighing between 220-250 pounds stealing the picture on Aug. 17.

But students gave incoming principal Mark DeFazio a mirror with the inscription "... to know the will of God is the highest of all wisdoms, the love of Jesus Christ lives within all of us," to replace the portrait.

On the advice of its legal team, the board had the mirror taken down. It hung for only three-and-a-half hours Sept. 1. The settlement that was proposed to the plaintiffs did not make mention of the mirror and its possible place in the hallway.

The mirror was a gift from the Christian Freedom Alliance, a student group that helped raise $6,700 to fight the lawsuit.

The story has received national attention, though with the stealing of the portrait, the board claims it is pointless go on.

"Given the circumstances, an injunction would be utterly useless," the motion to dismiss says.

U.S. District Court case number 1:06-CV-103

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