A federal judge has cleared the way for the city to once again begin eviction proceedings against a local Boy Scouts of America chapter, but he cautioned that any new effort must be done in a constitutional manner.
However, city attorneys want U.S. District Judge Ronald L. Buckwalter to overturn an unfavorable portion of last month’s jury verdict, which invalidates the city’s prior effort to evict the Cradle of Liberty Council.
The city has been trying to evict the council from a city-owned facility for four years because the council won’t permit openly gay participants, or, in the alternative, pay fair-market rent.
Last month, a federal jury said the city was “reasonable” in wanting to evict the council, but it wasn’t “reasonable” when it asked the council to “repudiate” BSA’s anti-gay policy to remain in the building rent-free.
That alleged request placed an “unconstitutional condition” on the council’s right to occupy the building rent-free, jurors said.
On July 14, Buckwalter entered judgment on the verdict by invalidating the city’s prior eviction effort and denying the city’s request for $333,000 in back rent from the council.
But Buckwalter also ruled the city may begin eviction proceedings against the council once again, “provided it does so in a manner which does not violate the constitutional rights of [the council].”
Buckwalter’s two-page order revises his November 2009 preliminary injunction that blocked the council’s eviction. The injunction is now permanent, and specifically acknowledges the city’s right to evict the council if it’s done constitutionally.
Despite this acknowledgment, city attorneys want Buckwalter to overturn the unfavorable portion without a new trial or hold a new trial on that issue.
“As a matter of law, the government has a right to condition subsidies on nondiscriminatory conduct,” city attorneys stated in a July 21 filing.
In prior court briefs, the Scouts maintained that the city impermissibly conditioned its rental subsidy on the relinquishment of the council’s constitutional right to exclude openly gay participants.
In their July 21 brief, city attorneys said a recent Supreme Court ruling makes clear that the club had no constitutional right to a city subsidy; thus, any or no reason given for the withdrawal of a city subsidy couldn’t be deemed an “unconstitutional condition.”
That ruling, Christian Legal Society vs. University of California’s Hastings College of the Law, was handed down five days after the jury’s “flawed” verdict in the local dispute, city attorneys said.
The 5-4 Supreme Court ruling upheld the right of a California university to deny a subsidy to an antigay student group because its subsidy policy was reasonable and viewpoint-neutral.
The jury in the local case determined that the city’s subsidy policy was reasonable and viewpoint-neutral. Therefore, “it makes no sense” for the jury to invalidate that determination by also declaring that the policy placed an “unconstitutional condition” on the council, city attorneys noted.
Even without the CLS ruling, the attorneys stated, the “unconstitutional condition” verdict should be overturned because there’s no evidence to support the claim.
The city was within its rights to ask the council to comply with its anti-bias rules, and didn’t expect the council to “repudiate” BSA’s antigay policy as a condition of remaining in the building, city attorneys said.
“Just as a sign on a shop window or on a lunch counter or rest-room door that members of a race, religion or ethnic group may not enter, the Cradle of Liberty’s press releases [and] adoption of BSA policy statements and employment application are conduct subject to the city’s nondiscrimination laws and policies,” city attorneys stated.
On May 5, both sides informed Buckwalter that the CLS decision would be handed down by the end of June, and would have a “likely impact” on the Philadelphia dispute, city attorneys maintained.
Despite this information, Buckwalter ordered the jury trial to begin on June 14 — just two weeks before the CLS decision was handed down.
The city has alleged numerous errors in the structure of the trial, the instructions given to jurors and the verdict form utilized by jurors.
According to city attorneys, six questions on the verdict form implied that the council owns the building — an implication that was “misleading and contrary to the facts.”
“The record evidence is undisputed that the city owns the property,” city attorneys noted in their July 21 filing.
Additionally, the attorneys are trying to convince Buckwalter that the council has the financial means to either pay fair-market rent for the building — or relocate to another building — without experiencing an undue hardship.
They pointed to the club’s recent IRS filings, which indicate $26 million in assets, of which $14 million are in cash and securities.
In a statement issued July 27, the council said its total assets are $22,951,545. Most of that money is earmarked for the council’s camp properties and its permanent-endowment fund.
Other funds are restricted to operations related to the National Scouts Jamboree and summer camp, council officials stated.
“The only unrestricted dollars available for capital expenses as of June 30 are $80,472, most of which is required to pay the final costs of a renovation project at the [council]-operated camp, Resica Falls,” the council said.
Also in the statement, the council said it’s “looking into” the expulsion of Greg Lattera, a gay Life Scout who was ousted from the club in 2003 after coming out.
“The [council] is looking into Mr. Lattera’s appeal in an effort to answer his questions,” the BSA contingent stated, without elaborating.
At press time, Maura Kennedy, a spokesperson for Mayor Nutter, had no comment on whether the city would initiate a new eviction action against the council while the federal litigation remains pending.
The Scouts built the structure in question, at 231-251 N. 22nd St., in 1928 on city-owned land. Under the terms of a city ordinance that same year, the city owns the building and the council is permitted to occupy it rent-free unless given one-year’s notice by the city to vacate.
At press time, the council hadn’t filed a reply brief to the city’s July 21 motion. It has until Aug. 2 to file a reply with Buckwalter.
In prior filings, the council stated that the jury’s verdict is supported by the facts and should remain undisturbed. It challenged the relevancy of the CLS ruling, noting that the council has received a city subsidy for more than 80 years, while CLS never received a government subsidy.
In his order, Buckwalter said he would decide whether to award any legal costs and attorneys’ fees if and when a petition requesting such fees and costs is presented to him.
At press time, neither side had presented such a petition.
Tim Cwiek can be reached at (215) 625-8501 ext. 208.