City attorneys this week appealed recent rulings by a federal judge in the dispute involving a local Boy Scouts council’s occupation of a city-owned building.
Two notices of appeal were filed April 16 with the Third Circuit Court of Appeals.
The first document appeals last month’s ruling by U.S. District Judge Ronald L. Buckwalter upholding a jury verdict that the city violated the constitutional rights of the BSA Cradle of Liberty Council when trying to evict it from 231-251 N. 22nd St.
The second document appeals a separate ruling by Buckwalter, ordering the city to pay Cradle about $877,000 in legal fees.
The Center City law firm of Schnader Harrison Segal & Lewis is handling the appeals on a pro-bono basis, in collaboration with senior attorneys at the city Law Department.
The next major step in the litigation is for the court to issue a briefing schedule, specifying when the both sides are expected to file legal briefs supporting their respective positions.
The case will be heard by a panel of three appellate judges, who haven’t been named yet.
Mary Catherine Roper, senior staff attorney with the ACLU of Pennsylvania, said the city’s appeal raises issues of importance to the community.
“We think the core issue here is that the city gets to decide how it allocates its resources as long as it does so in an even-handed manner,” Roper told PGN.
The city has been involved in a protracted dispute with Cradle since 2000, when the Supreme Court ruled that the BSA can exclude gays from the organization.
While the city hasn’t challenged the Supreme Court ruling, it is against city policy to subsidize Cradle’s exclusionary membership policies by supplying it with a rent-free headquarters building on the Ben Franklin Parkway.
In 2007, Philadelphia City Council passed a resolution to evict Cradle after the BSA council refused to pay $200,000 annual rent.
The following year, Cradle filed a federal civil-rights lawsuit, claiming the city was violating its constitutional right to exclude gays.
In 2010, a federal jury ruled that the city placed an “unconstitutional condition” on Cradle by allegedly requiring it to repudiate the national BSA’s antigay policy to avoid eviction.
The city asked Buckwalter to overturn the verdict, maintaining in part that the questions posed to jurors allegedly didn’t give enough weight to the rental-payment option offered to the Scouts.
If the Scouts had paid fair-market rent, there would have been no expectation of a membership-policy change, according to the city’s court filings.
But Buckwalter upheld the jury verdict last month, stating that the city placed an “overly broad speech restriction” on Cradle during the eviction attempt.
At press time, Nutter spokesperson Mark McDonald had no comment on the appeal.
In response to the filing, Cradle of Liberty Council issued a statement: “We are disappointed the City has chosen at this time to appeal since the result will be more tax dollars being wasted instead of going to provide services to at-risk children from all walks of life from throughout Philadelphia.”
Earlier this month, the Mayor’s LGBT Advisory Board sent a letter to Nutter, reaffirming its position that the city should appeal Buckwalter’s ruling.
Tim Cwiek can be reached at [email protected].