Legal papers filed in federal court last week signaled the resumption of litigation in the matter of a local Boy Scouts council headquartered on public property without paying any rent.
The papers, filed by attorneys for the BSA Cradle of Liberty Council, state that a tentative agreement to sell the property to the Scouts for $500,000 has fallen through, due to lack of support in City Council.
“On Jan. 19, 2012, the parties recognized that because City Council was unwilling to approve the settlement agreement to which the City Solicitor and Mayor Michael Nutter had already approved, this case was unlikely to settle,” the filing states.
The BSA council, headquartered at 231-251 N. 22nd St., refuses to accept participants who are gay, atheist or agnostic.
In 2008, the city tried to evict the council, but the dispute landed in federal court — where it’s been mired for almost four years.
If the Scouts purchase the parcel, they would be on private property and would be able to set their own membership standards without violating local antibias laws.
But the proposed sale sparked an outcry among LGBTs and their allies, despite a pledge from the Scouts to stop seeking about $960,000 in legal fees from the city.
Critics said the deal would have paved the way for other discriminators to lease or purchase city property at a reduced rate.
In June 2010, a federal jury ruled that city officials violated the Cradle’s constitutional rights by allegedly asking it to repudiate the national BSA’s antigay policy in order to avoid eviction.
The following month, attorneys for the city asked U.S. District Judge Ronald L. Buckwalter to set aside the jury verdict or, alternatively, to grant a new trial.
The city’s motion has been pending for about 19 months, as both sides pursued an out-of-court settlement.
Last month, the ACLU of Greater Philadelphia and Lambda Legal sent letters to city officials advocating a sale of the property through competitive bidding, as a way of ending the Scouts’ subsidy.
Mark McDonald, a spokesperson for Nutter, had no comment on the letters, nor on any other aspect of the dispute. “This matter is in litigation, and I am unable to comment,” he said.
Mel Heifetz, a local businessman, has offered to purchase the property for up to $2 million and donate it to a nonprofit group that doesn’t discriminate.
William H. Ewing, Heifetz’s attorney, expressed guarded optimism because City Solicitor Shelley R. Smith didn’t immediately reject Heifetz’s latest offer, sent Jan. 17.
If Heifetz can purchase the property for $1 million, he’ll assume responsibility for all of the Scouts’ legal fees assessed against the city up to Jan. 17, Ewing said.
But Heifetz must have control over litigation directly involving those fees, Ewing added.
Ewing also expressed hope that the city will take prompt steps to ensure that all of its tenants have signed leases containing comprehensive antibias provisions.
In court papers, the Scouts have asserted that other city tenants allegedly have exclusionary membership policies that aren’t being scrutinized by city officials.
The Scouts are represented by pro-bono attorneys at the Center City law firm of Drinker Biddle & Reath LLP.
To date, the firm is seeking $1,038,664.07 in attorneys’ fees from the city — of which $75,089 allegedly has been incurred since July 2010, when both sides began settlement talks.
On Jan. 27, Drinker Biddle attorneys filed an exhibit listing the time they’ve spent on post-trial litigation and on efforts to settle the case. The exhibit has entries such as “settlement issues…$697.50,” and “analyze settlement issues…$372.”
John M. Byrne, a spokesperson for Drinker Biddle, declined to comment on whether anyone at the firm contacted City Council members to determine if a reduced-rate property sale to the Scouts was plausible.
In another exhibit, Drinker Biddle noted that $1,454.50 was deducted from the attorneys’ fees for time spent on media coverage.
Advocates for the LGBT community say the city won’t be liable for any of the Scouts’ attorneys’ fees — including fees allegedly incurred trying to settle — if the city ultimately prevails in the case.
Scouts spokesperson Kera Armstrong had no comment on whether the Scouts would meet with members of the LGBT community to explore other settlement options — without attorneys present, to minimize fees.
Armstrong also declined to comment on the status of an appeal by a Life Scout who was ousted from the BSA council in 2003 after he came out.
Almost nine years later, Greg Lattera’s reinstatement case is still pending, according to court records.
David M. Rosenblum, legal director of Mazzoni Center, said the center remains active in the Lattera matter.
“Mazzoni Center is looking into Greg Lattera’s appeal for reinstatement to the Cradle of Liberty Council, which has been pending since 2003,” Rosenblum told PGN.
Rosenblum declined additional comment.
In court papers, the Scouts maintain they have a right to exclude gays from the property due to a 2000 Supreme Court decision permitting the Scouts to set their own membership standards.
Advocates for the LGBT community, however, point to a 2010 Supreme Court decision reaffirming the right of governments to condition subsidies on compliance with antibias rules.
Tim Cwiek can be reached at [email protected].