A local Boy Scouts of America council is asking a federal judge to uphold a jury verdict affirming the club has a right to exclude gays from the building it continues to occupy.
“The jury has spoken, and its verdict should be respected and upheld,” the Cradle of Liberty Council states in court papers filed with U.S. District Judge Ronald L. Buckwalter on Aug. 23.
Meanwhile, the City of Philadelphia maintains the council should be ousted from 231-251 N. 22nd St. because it still won’t permit gay participants or, in the alternative, pay fair-market rent.
But, as they’ve held all along, council officials say they have a First Amendment right to associate with whomever they please, and now are asserting that a jury verdict supporting that position should remain in place.
In June, after an eight-day trial, federal jurors said the city has a right to set anti-bias rules for the building, but that it placed an “unconstitutional condition” on the Scouts when it asked them to comply with the rules.
However, city attorneys say the jury verdict is too flawed to be upheld.
The city is asking Buckwalter to overturn the unconstitutional-condition finding or order a new trial.
In their Aug. 23 reply brief, the Scouts called the city’s request “nothing more than sour grapes over an outcome that the city dislikes. That is no reason to overturn the result in this case.”
The Scouts contend numerous violations allegedly committed by the city — apart from asking the council to stop excluding gays — support the jury’s unconstitutional-condition finding.
Those alleged violations include the city’s failure to notify the Scouts about key city meetings where eviction decisions were made; city officials’ use of “talking points” and editorial suggestions from LGBT activists; and the city’s overlooking of bias by other tenants, the Scouts’ brief outlines.
“In many ways, the trial played out like a political corruption case, as the evidence showed a group of activists who, through threats and manipulation, convinced the city solicitor to do their bidding,” the brief states.
The Scouts’ brief characterizes the eight-year eviction process as “unseemly,” and replete with “behind-the-scenes maneuvering.”
Quoting from the jury foreperson, the Scouts’ brief states: “The trial record is replete with evidence showing that the city ‘could have gone about it with a better process’ and was thus unreasonable in imposing a condition upon Cradle of Liberty.”
But city officials say the Scouts are in no position to complain about due-process violations.
In prior court filings, city attorneys said the Scouts were given ample opportunity to present their case during the eviction process. Instead, the Scouts distanced themselves, then later claimed an unfair exclusion.
City attorneys also noted that the council afforded no meaningful due-process rights to Greg Lattera, an openly gay Scout who was ousted from the council in 2003 after coming out.
City attorneys called the appellate process offered Lattera a “hoax,” pointing out that his appeal for reinstatement remains pending seven years after it was filed.
Additionally, city attorneys said the council’s “homophobic rant of a closing argument” at the June trial was so inflammatory, it “offended fundamental fairness and violated due process.”
When questioned by PGN this week, the council had no comment about the status of Lattera’s appeal.
The council also declined to comment about the possibility of opening the 22nd Street building to LGBT groups for special events, as it has for other outside groups.
Nor would council officials comment on the possibility of limiting the club’s activities in the building to Learning for Life — an educational and vocational program the council claims is open to gays.
City attorneys also contend that a recent Supreme Court decision clarifies that First Amendment rights aren’t violated when a government entity puts conditions for benefits on compliance with anti-bias rules.
Therefore, there is no legal or factual support for the unconstitutional-condition finding of the jury according to city attorneys.
That decision, known as “Christian Legal Services vs. University of California’s Hastings College of the Law,” upheld the right of the university to condition receipt of a university benefit upon compliance with the university’s anti-bias rules.
But in its reply brief, the council said the decision doesn’t apply, mainly because the council has a favorable unconstitutional-condition finding, and the Christian group that was denied a benefit from the university has no such favorable finding.
In a related development, the city filed a motion on Aug. 26 asking that the city be required to pay, at most, $268,583 in legal fees to the council — if the portion of the verdict unfavorable to the city is upheld.
Drinker Biddle & Reath, the Center City law firm representing the council, wants $963,575.07 in legal fees and costs from the city.
“In addition to the duplicative work of the junior associates, the overall hours claimed must be reduced to account for the instances of double-billing, duplicative work among the more senior attorneys, excessive hours and over-staffing,” the city’s motion states.
In a reply brief filed Aug. 30, Drinker Biddle claimed that it “cut the city a break,” and could have requested $978,545.07 — an additional $14,970 — from the city if the firm hadn’t reduced its hourly rates.
The law firm of Schnader Harrison Segal & Lewis has been representing the city in the matter since January. So far, it’s billed the city for $14,593 in compensation, according to city records.
Additionally, Reeves C. Lukens Co. has invoiced the city $6,275 for presenting testimony about the building’s fair-market rental value at a court proceeding in March.
Buckwalter has no deadline to respond to the council’s request that he uphold the jury’s unconstitutional-condition finding nor does he have a deadline to rule on the compensation request from Drinker Biddle, according to federal rules of civil procedure.
Tim Cwiek can be reached at (215) 625-8501 ext. 208.