Judge: Scouts must post bond

Judge: Scouts must post bond

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The local Boy Scouts of America chapter must post a bond to protect the city’s financial interests if it wants to continue occupying a municipal building rent-free, a federal judge ruled last week.

In his seven-page ruling, U.S. District Judge Ronald L. Buckwalter said the bond could help indemnify the city if it’s ultimately determined that the Cradle of Liberty Council has wrongfully occupied 231-251 N. 22nd St.

City officials have been trying to evict the Scouts from that location for almost two years because the Scouts won’t permit gay participants, nor will they pay the annual fair-market rent of $200,000.

But Buckwalter blocked the eviction effort in November 2009 when he granted a preliminary injunction, stating more litigation was needed before a Common Pleas Court judge could rule on the city’s eviction request.

The Scouts claim to be victims of “viewpoint discrimination” by the city, and they filed a federal lawsuit in May 2008. Since that time, the back-rent total has approached $400,000, and could reach $1 million before all appeals are exhausted.

If the Scouts ultimately lose their case, the bond would be instrumental in collecting a portion of the back rent that’s accrued since the preliminary injunction went into effect in November 2009, according to court records.

A hearing to determine the exact amount of the bond has been scheduled for 10 a.m. March 30 in Courtroom 14A of the U.S. Courthouse, 601 Market St.

In his March 5 ruling, Buckwalter rejected the Scouts’ assertion that requiring them to post a bond would impose a financial hardship on the organization.

“Cradle of Liberty is a financially solvent organization with a well-paid executive director and a substantial wealth of assets,” Buckwalter wrote.

The judge also rejected the Scouts’ claim that a bond would constitute an “undue restraint” on their constitutional rights to exclude gays from the organization.

“While the court agrees that [the Scouts’ lawsuit] at least in part seeks to enforce important federal rights, the court finds that the mere requirement of a bond will not necessarily place an undue restriction upon Cradle of Liberty’s constitutional rights,” the ruling states.

Additionally, the judge wrote the bond will serve to focus attention on the financial risk taken on by the Scouts by pursuing the litigation.

“The court recognizes that a bond requirement would help ensure the efficient resolution of this case by informing the parties of the stakes involved in the preliminary injunction and in continuing this course of litigation.”

In last week’s ruling, Buckwalter acknowledged that he made a “clear error” by failing to consider the possibility of imposing a bond requirement on the Scouts when he granted the preliminary injunction.

In his ruling, Buckwalter also addressed the challenges faced by city officials regarding long-range planning for the building due to the ongoing litigation.

“Any potential delay in the resolution of this case as the result of Cradle of Liberty’s filing of a preliminary injunction increases the period of uncertainty for the city as to whether it may charge back-rent or reapportion use of the [building],” he wrote.

But Buckwalter also promised to “carefully consider” any unfair limitation or restriction the Scouts might experience if required to post a substantial bond.

“At the subsequent hearing to determine the amount of the bond, the court will carefully consider any potential undue restriction on Cradle of Liberty’s constitutional rights,” Buckwalter noted in his ruling.

Courtroom observers have speculated that the amount of the bond could range anywhere from a nominal $1 to a substantial $1 million.

Typically, litigants who are required to post preliminary-injunction bonds contract with a bond company, and pay only a small percentage of the bond’s value to the bond company.

Margaret A. Downey, president and founder of The Freethought Society, which is based in Pocopson, said a $1-million bond for the Scouts would be appropriate.

“I think the Scouts should appreciate a bond of $1 million, considering all the back rent, interest and inflationary rates at issue,” Downey told PGN.

City officials have denied trying to impose a pro-gay viewpoint onto any city tenant, including the Scouts. To the contrary, city officials note that tenants may hold a wide range of views on homosexuality.

But delivery of services must be provided regardless of a recipient’s sexual orientation, and the Scouts refuse to bring their use of the building into conformance with city anti-bias codes, according to court papers filed by the city.

In prior motions, the Scouts have repeatedly cited a 2000 U.S. Supreme Court decision permitting the Scouts to exclude openly gay adult leaders.

But city attorneys have minimized the relevance of that decision, noting that it doesn’t address the issue of municipal subsidies for the Scouts, nor does it address the issue of openly gay youth members.

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

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