City attorneys have asked a federal judge to lift an injunction preventing the eviction of a local Boy Scouts chapter from a city-owned building.
U.S. District Judge Ronald L. Buckwalter issued the injunction on Nov. 18, effectively preventing Common Pleas Judge Mark I. Bernstein from ordering the Scouts’ eviction.
Prior to the injunction, the case had been pending before both judges because of overlapping issues that both said they were capable of ruling on.
When issuing the injunction, Buckwalter said it’s possible the Scouts’ constitutional rights might be “irreparably harmed” if he didn’t block their eviction at this stage of the litigation.
On Nov. 25, city attorneys filed a motion for reconsideration, asking Buckwalter to rethink his position that a 1971 U.S. Supreme Court decision doesn’t apply in the Scouts case. That decision, known as the Younger doctrine, limits a federal judge’s ability to enjoin a state proceeding.
When Buckwalter issued the injunction last month, he said the Younger doctrine didn’t apply because city attorneys already had filed motions in his court, clearly establishing his right to issue an injunction if necessary.
In their motion for reconsideration, city attorneys cited a recent federal appellate decision known as the Coughlin case, indicating the prior motions filed with Buckwalter didn’t establish his right to issue an injunction.
Buckwalter said city attorneys implicitly waived that right last year when they filed a motion asking him to dismiss the Scouts’ case. The judge said filing that motion in his court established the city’s acceptance that he, not Bernstein, should hear the case first.
In their Nov. 25 motion, city attorneys said their filing of the motion to dismiss wasn’t a “clear and explicit” waiver of the right to object to a federal injunction later in the litigation.
According to the Nov. 25 motion, Buckwalter overlooked a recent federal appellate court decision that specified that filing a motion to dismiss in federal court isn’t a “clear and explicit” waiver of the right to object to an injunction later in the case.
City attorneys also want Buckwalter to lift the injunction because he allegedly failed to order the Scouts to post a bond when granting the injunction. The bond requirement is “almost mandatory” under federal law, according to the city’s motion.
Buckwalter allegedly failed to “identify any rare or exceptional circumstances justifying the absence of a bond,” states the city’s motion.
The Scouts are in rental arrears of about $300,000, and city attorneys want the bond to protect the city’s financial interests. If Buckwalter declines to lift the injunction, the city wants him to hold a hearing to determine the amount of the bond.
The Scouts hadn’t responded to the city’s motion by press time.
Buckwalter is expected to rule on the matter in the next few weeks.
Bernstein concluded the state eviction case on Nov. 20 due to Buckwalter’s injunction. But city attorneys have filed papers reserving their right to pursue the eviction case at a later date.
The Scouts have occupied the Parkway building since 1928, but the chapter refuses to sign a lease containing anti-bias language mirroring the city’s Fair Practices Ordinance.
That ordinance, enacted in 1982, forbids antigay discrimination in a variety of venues, including city-owned buildings. For several years, LGBT activists implored city officials to enforce the ordinance and remove the Scouts from the building, have them pay fair-market rent or require them to end their discriminatory practices.
In 2007, in response to those pleas, city officials told the Scouts they must begin paying $200,000 annual rent beginning June 1, 2008, or vacate the premises.
When requesting the injunction, attorneys for the Scouts said the city singled out the organization for punishment for exercising its constitutional right to ban openly gay participants — a right reaffirmed by the U.S. Supreme Court in 2000.
City attorneys responded by noting the Scouts are free to associate with whomever they please, but aren’t entitled to city subsidies to facilitate discriminatory practices.
Attorneys for the Scouts countered that other Fairmount Park renters appear to have exclusionary membership policies that might violate the city’s Fair Practices Act.
Those renters include the Colonial Dames of America, Women for Greater Philadelphia, the Royal Heritage Society of Delaware Valley, the Philadelphia Girls’ Rowing Club and the Roman Catholic Church of the Maternity BVM, according to court documents filed by the Scouts.
When issuing his injunction, Buckwalter said the city hasn’t sufficiently explained why those entities are permitted to rent space at nominal rates. He said it’s possible the city is singling out the Scouts for punishment, which would be unconstitutional.
In opposition to the injunction, city attorneys noted the Scouts haven’t provided any substantiated evidence that the other entities are violating the city’s Fair Practices Ordinance.
City attorneys also stated that approximately 37 Fairmount Park renters are subject to periodic review of their rental arrangements, but the reviews cannot take place simultaneously due to limited resources.
Tim Cwiek can be reached at (215) 625-8501 ext. 208.