The brief describes the verdict as “irreconcilably inconsistent.”
If the verdict isn’t tossed out, the city should at least get a new trial, according to the brief.
In one section of the verdict, jurors said it was unreasonable for the city to expect Cradle to renounce the national BSA’s antigay policy to remain in the building rent-free.
But in another section of the verdict, jurors said the city’s overall eviction attempt was reasonable.
According to the brief, the contradiction is so glaring, it’s similar to a jury stating in one section of a verdict that a traffic light was red, and stating in another section that a traffic light was green.
“A jury could not find that the traffic light was red in one interrogatory, and then, in the name of compromise, find that the traffic light was green in a different interrogatory,” the brief states. “The light was either red or green.”
The city’s brief also emphasizes that no law requires the city to subsidize Cradle’s discriminatory conduct, including the First Amendment.
Additionally, there’s no evidence that the city has violated any of Cradle’s constitutional rights, according to the brief.
Several years ago, the city initiated eviction proceedings against Cradle, which is headquartered inside a city-owned building on 22nd Street near the Ben Franklin Parkway.
Cradle refuses to allow gays in its Scouting programs, which allegedly violates several city laws and policies regarding the provision of services within city facilities.
But Cradle claims it has a First Amendment right to exclude gays, even inside a public building.
In 2008, Cradle filed suit against the city, which resulted in a federal jury ruling that the city placed an “unconstitutional condition” on Cradle’s right to exclude gays during the eviction attempt.
In July 2010, U.S. District Judge Ronald Buckwalter issued a permanent injunction, preventing the city from evicting the Scouts unless it does so in a constitutional manner.
If the Third Circuit Court of Appeals enters overall judgment in favor of the city, Buckwalter’s injunction would be vacated, clearing the way for the Scouts’ eviction.
City seeks clarification of judge’s injunction
If the appeals court doesn’t enter judgment in favor of the city — or if it doesn’t order a new trial — the city alternately is seeking clarification of Buckwalter’s injunction.
“Quite simply, we assume that the city is not required to subsidize Cradle’s discrimination in perpetuity, but we have no guidance as to how we can disentangle ourselves from Cradle’s discrimination,” the city’s brief states. “Fundamental fairness requires that we be given that guidance.”
In the Nov. 19 brief, the city describes Buckwalter’s injunction as “unacceptably vague.”
“At a minimum, the court should remand with instructions to [Buckwalter] to issue a reasonably clear injunction,” the brief states.
The brief goes on to say that the city is entitled to “fair notice” of what would be an improper eviction proceeding.
“[Buckwalter’s] injunction is unacceptably vague in that it only tells the city to obey the Constitution, without any specificity as to how to obey the Constitution,” the brief states.
City defends LGBT advocates
Cradle has argued that the city impermissibly caved in to political pressure from LGBT activists when pursuing the Scouts’ eviction.
But the city’s brief states that it was appropriate for government officials to respond to citizens’ concerns in a participatory democracy.
Buckwalter specifically faulted former City Solicitor Romulo L. Diaz Jr., who is openly gay, for allegedly pandering to pressure from LGBT advocates when pursuing Cradle’s eviction.
But the city’s brief emphasizes that Diaz acted properly when attempting to end the subsidy.
“The fact that Mr. Diaz himself was a gay man is an improper basis to uphold a finding of unconstitutionality,” the brief states. “Leaders are certainly permitted to make decisions for the purpose of benefiting groups of which they are members. Black leaders can assist the NAACP, just as Jewish leaders can assist Israel, just as lawyers can assist bar groups.”
The brief adds: “Cradle at best established that Mr. Diaz responded to a zealous constituency, which is not a constitutional violation.”
Buckwalter also has claimed that the city overstepped its bounds by trying to force Cradle to stop discriminating in areas outside the city-owned building.
The city refutes that allegation, stating that its focus has always been to end subsidized discrimination inside the Parkway building.
“Cradle could continue to occupy city property, rent-free, if it wasn’t making discriminatory policy there,” the brief states. “It was only because Cradle chose to use the property for its headquarters that the condition may have had the effect of prohibiting discrimination elsewhere. The city’s condition, however, was targeted at the city’s subsidy.”
Legal fees also disputed
The city’s brief also asks that Buckwalter’s order for the city to pay the Scouts almost $900,000 in legal fees be thrown out, on the basis that the Cradle lawsuit was meritless.
If the appeals court upholds Cradle’s “unconstitutional-condition” claim, the city asks that the legal fees be reduced to anywhere between about $473,000-$528,000.
“[Buckwalter’s] sparse fee opinion is flawed because it includes hours derived from the unsuccessful and unrelated equal-protection claim, because it includes hours that were duplicative (for example, Cradle billed for five attorneys at each day of trial) and because the hourly rate was not reasonable,” the brief states.
The 90-page brief was accompanied by hundreds of pages of supporting documentation.
Cradle has until Dec. 24 to respond to the brief. Then, the city has 14 days to reply to Cradle’s response, if it wishes to.
Then, a three-judge panel will be selected to rule on the matter.
The panel has the option of holding oral arguments prior to issuing a ruling.