Attorneys for a local Boy Scouts of America council say they vindicated the group’s constitutional right to exclude gays from a city-owned building, and now they want nearly $1 million in legal fees from the city.
Citing a federal law allowing a victorious party in a civil-rights dispute to seek legal fees from the losing party, the Center City law firm Drinker Biddle & Reath is seeking $963,575.07 from the city.
At press time, the city hadn’t responded to the firm’s request for compensation. In prior filings, however, city attorneys content the BSA Cradle of Liberty Council lost most of its case, and they want a judge to toss out the portion it won as meritless.
The city also wants the troupe out of 231-251 N. 22nd St. because it won’t permit gay participants or, in the alternative, pay fair-market rent.
Council officials say the city colluded with LGBT activists to target them for punishment because they disagreed with the BSA’s antigay leadership policy.
Jurors rejected much of that scenario, ruling that the city didn’t commit viewpoint discrimination against the council, nor did it violate the council’s equal-protection rights.
But jurors also ruled that the city placed an “unconstitutional condition” on the council by requiring it to stop discriminating inside the building if it wanted to remain there rent-free.
A brief history
In 2008, the city decided to evict the council by filing an action in state court, but before it could do that, the council filed a federal lawsuit, alleging a variety of constitutional violations by the city.
“Drinker Biddle achieved everything that Cradle of Liberty sought when it first filed this lawsuit,” the firm stated in its July 28 filing. “The court should grant every penny of this modest request.”
Jason P. Gosselin, a Drinker Biddle attorney, requested compensation at the rate of $465 an hour. Because, he said, he worked on the case for 434 hours, he wants $201,949 from the city.
William M. McSwain, another Drinker Biddle attorney, requested compensation at the rate of $495 per hour. Because he worked on the case for 299 hours, he said he wants $148,203 from the city.
Other Drinker Biddle attorneys and legal assistants also requested compensation from the city, but at lower amounts, according to the court filing.
The council declined to comment about its attorneys’ request for payment.
But it issued this statement to PGN on Aug. 10: “On the day of the trial verdict the Cradle of Liberty Council said we would reach out to the city to resolve this matter. We did that. We are hopeful a resolution will be reached soon.”
The payment request cites a 1976 federal law permitting attorneys who vindicate the civil rights of their clients to receive payment from the losing party for reasonable attorneys fees and other expenses.
U.S. District Judge Ronald L. Buckwalter hasn’t yet determined whether the city should pay the Drinker Biddle attorneys any money. Buckwalter has no deadline to make that determination.
The council wasn’t a paying client of Drinker Biddle, but that doesn’t prevent the firm from seeking payment from the city, according to the firm’s court filing.
Drinker Biddle excluded from its payment request the hours its attorneys claim they spent on news-media issues — at a savings of about $7,036 for the city — because “such time is not compensable,” the filing states.
The law firm of Schnader Harrison Segal & Lewis has been representing the city in the matter since January 2010. Thus far, it has invoiced the city for $14,593 in compensation, according to records.
Additionally, the city has been invoiced $6,275 by Reeves C. Lukens Co., which presented expert testimony about the building’s fair-market rental value at a court proceeding in March.
Trial strategies
The Scouts’ attorneys spent much time during the eight-day trial trying to prove that LGBT advocates focused on harming the Scouts, rather than ensuring equal opportunity within city facilities.
Scouts’ attorneys examined the leases of many city tenants, seeking to determine whether comparable discrimination was taking place in other facilities that LGBT advocates ignored.
The Scouts’ attorneys also spent time scrutinizing the correspondence and writings of LGBT advocates.
During the trial, the Scouts’ attorneys displayed an e-mail written by LGBT advocate Arthur Kaplan to a city official, emphasizing the need to end antigay bias within the 22nd Street building.
The e-mail was sent during the Hurricane Katrina crisis, and the Scouts’ attorneys insinuated that Kaplan was more interested in “destroying” the Scouts than in helping Katrina victims.
In closing arguments, city attorneys urged jurors to reject such insinuations, alleging the council was exhibiting antigay conduct by “demonizing” the good-faith efforts of LGBT advocates such as Kaplan.
The Scouts built the structure in 1928 on city-owned land. Under the terms of an 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.
Last month, Buckwalter, the presiding judge, ruled that the city can begin a new eviction effort against the council, provided its does so in a constitutional manner. But city attorneys want Buckwalter to also dismiss the council’s “unconstitutional condition” claim as meritless.
City attorneys say there’s no evidence to support the claim that the council has a right to discriminate against gays inside a city-owned building. However, a question posed to jurors allegedly assumed that right.
Additionally, city attorneys said several questions posed to jurors unfairly implied that the Scouts own the building — an implication the city said is “contrary to the facts.”
Buckwalter said the council has until Aug. 23 to respond to the city’s request that he dismiss the “unconstitutional condition” claim.
Tim Cwiek can be reached at (215) 625-8501 ext. 208.