Judge plans to continue case against Scouts

By Timothy Cwiek
PGN Writer-at-Large
© 2008 Philadelphia Gay News

In a surprise move, a Philadelphia judge said he’s unlikely to postpone the eviction case against the local Boy Scouts chapter, even though both sides in the dispute want him to do so.

During an Aug. 1 hearing, Common Pleas Judge Mark I. Bernstein said he probably will not grant an indefinite postponement of the eviction proceedings against the Scouts, even though a similar case is moving forward in federal court.

Attorneys for the city and the Scouts filed a joint motion with Bernstein, asking that he postpone the eviction case indefinitely, until the federal suit could be resolved.

But Bernstein said resolution of the federal case could take up to six years.

When questioned by Bernstein, Jason P. Gosselin, an attorney for the Scouts, acknowledged that he plans to take the federal case all the way to the U.S. Supreme Court if necessary.

Bernstein noted that such an appeal could be time consuming, and he wishes to “compress” the time it takes to resolve the eviction proceeding.

In May, the Scouts filed their federal lawsuit, claiming their constitutional rights were being violated by the city’s threat to evict them from a city-owned building because they won’t pay rent or allow openly gay participants.

City attorney James P. Cousounis said he joined with the Scouts in requesting the indefinite postponement to avoid conflicts with the federal lawsuit.

But Bernstein said he was capable of coordinating his duties on the state level with those of U.S. District Judge Ronald L. Buckwalter, who’s handling the federal suit.

“I’ve never interfered with a federal court,” Bernstein said. “I have no intention of inadvertently ruling on a matter more properly ruled on in federal court.”

Gosselin, the Scouts’ attorney, told Bernstein that he wants the indefinite postponement so the dispute doesn’t move forward on a “parallel track,” in state and federal courts.

But Bernstein responded that he’s handled several cases that overlapped in federal court — cases more complicated and with more litigants than the Scouts’ dispute, he said.

Bernstein also persuaded Cousounis and Gosselin to agree that any items produced during the discovery phase of the eviction proceeding can be used in the federal case — and vice versa.

Bernstein also told both attorneys that he intends to issue an order soon specifying a time frame for the discovery phase of the eviction proceeding to be completed.

After the hearing, Cousounis said he accepts that Bernstein probably won’t grant the stay.

“Judge Bernstein apparently was not of the mindset or inclination to grant the motion for stay,” Cousounis said. “We intend to pursue our ejectment complaint against the Scouts as expeditiously as we can. The Scouts will probably have to file an answer [with Bernstein] to the ejectment complaint by Aug. 27.”

Cousounis also told PGN he hopes Buckwalter will dismiss the Scouts’ federal lawsuit as soon as possible because the matter belongs in state court before Bernstein.

Arthur M. Kaplan, an LGBT activist, expressed optimism that the city will move forward with the eviction in a timely manner.

“A stay might have delayed the process interminably,” Kaplan noted. “The Scouts have been openly discriminating against gays for many years, and I’m hoping city officials will keep that in mind as they move forward with this litigation.”

The Scouts’ Cradle of Liberty Council is headquartered in a city-owned building at 22nd and Winter streets, near the Ben Franklin Parkway. But the city’s Fair Practices Ordinance, as amended in 1982, bans antigay bias in a variety of venues, including city-owned buildings.

After years of pressure from LGBT activists, including Kaplan, city attorneys filed eviction papers against the Scouts on June 2 — 10 days after the Scouts had filed their federal lawsuit.

Timothy Cwiek can be reached at (215) 625-8501 ext. 208.