City asks for 'substantial' Scouts bond

City asks for 'substantial' Scouts bond

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City officials want the local Boy Scouts to post a “substantial” bond to protect the city’s financial interests while litigation to evict them continues in federal court.

The city’s Jan. 22 motion, made to U.S. District Judge Ronald L. Buckwalter, notes that the Scouts haven’t paid any rent on a city-owned building since June 2008, after City Council, the mayor and the Fairmount Park Commission ordered them to begin paying fair-market rent or comply with the city’s antidiscrimination policy.

To date, the Scouts are in rental arrears of about $300,000, and that figure could reach $1 million before all appeals are concluded in the matter, according to court documents.

A substantial bond would be instrumental in securing past-due rent from the Scouts if the city ultimately succeeds in evicting them from 231-251 N. 22nd St.

“The risk of financial harm to the city is inarguable,” the city’s motion states. “There can be no disagreement that the fair-market rent is substantial, and the Boy Scouts have refused to pay it for more than a year.”

City officials also want Buckwalter to take into account the harm caused by the Scouts, who refuse to comply with Philadelphia’s antibias codes.

“In addition to the financial harm of lost rental income, the city is harmed as well by its inability to enforce its antidiscrimination policies in the public’s interest, and by the damage to its antidiscrimination efforts by a forced subsidy to an organization that practices discrimination,” the city’s motion states. “That harm cannot be overstated.”

The Scouts also filed a motion on Jan. 22, asking Buckwalter not to impose any bond requirement.

“To require Cradle of Liberty to post a security bond would subject it to greater financial hardship and constitute an undue restraint upon Cradle of Liberty’s exercise of its constitutional rights,” the Scouts’ motion states. “Accordingly, the Court should decline to require Cradle of Liberty to post a security bond in connection with the preliminary injunction issued against the city.”

Buckwalter issued the injunction on Nov. 18, which effectively prevents a Common Pleas judge from evicting the Scouts at this stage of the litigation.

The 22nd Street site is the only municipally owned building in the country that serves exclusively as a headquarters for a Scouts council.

City officials want to evict the Scouts because they won’t permit openly gay participants, nor will they pay fair-market rent of $200,000 annually.

In their attempt to remain in the building, the Scouts filed a federal lawsuit in May 2008, alleging discrimination by city officials for exercising their constitutional right to ban gays.

The lawsuit relies largely on a 2000 Supreme Court decision, which asserts that the Boy Scouts of America isn’t a public accommodation and is thus not required to comply with local civil-rights laws protecting gays.

The city responded by noting that the Scouts are free to associate with whomever they please, but aren’t entitled to subsidies to facilitate discriminatory practices.

In prior rulings, Buckwalter stated the injunction is necessary until it can be determined whether the Scouts’ constitutional rights would be violated by the eviction.

At press time, Buckwalter hadn’t issued a ruling on the bond.

In their Jan. 22 motion, the Scouts compared their cause to “important federal rights or public interests,” such as labor-union rights, Medicaid-reimbursement benefits and pension guarantees for longterm workers.

Those causes involved litigation where preliminary injunctions were granted without substantial bond requirements, the Scouts’ motion notes.

The Scouts also pointed out city attorneys have filed a counterclaim with Buckwalter, seeking back rent from the Scouts if and when they’re evicted.

“If the city prevails, it will be entitled to a judgment for possession of the property and payment of holdover rent by Cradle of Liberty,” the Scouts’ motion states.

But city attorneys said the counter-claim doesn’t absolve the Scouts of the bond requirement.

“The existence of a counter-claim for some of the same damages that could result from imposition of a preliminary injunction doesn’t excuse the requirement of a bond,” the city’s motion states.

City attorneys also noted there is no evidence that the Cradle of Liberty Council would have financial difficulty obtaining the bond.

“The Boy Scouts have not asserted — let alone demonstrated — that they are on the brink of financial ruin,” the motion states, adding that the Council’s executive director receives about $300,000 annually in compensation, while the Council’s total assets exceed $20 million.

In their Jan. 22 motion, the Scouts renewed their belief that the city is attempting to enforce its gay-rights ordinances in an unconstitutional manner.

“The city seeks to accomplish indirectly what it is prohibited from doing directly — to suppress Cradle of Liberty’s right to expressive association and to be treated the same as similarly situated organizations,” the Scouts’ motion contends.

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

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