Philly says Boy Scouts have to accept gays

[Zevico]

BK: please try to reason logically about this. There is a difference between what is fair and what is legal.

1. If an action for breach of contract existed, the scout's lawyers would have sued for it. It's fairly clear that no such action exists as it has not been sued upon.

2. Whether the city can rewrite an inconvenient contract "at will" is probably the matter in issue in this proceeding.

I can't speak as to American law, but as a matter of general principle, parliaments, being sovereign, can (a) override, rewrite or void a contract if they so choose, or confer a power on (i) the courts or (ii) a statutory body, like the city of Philadelphia (or for that matter a regulatory body, e.g. a consumer protection agency), to override, rewrite or void a contract. That power is likely limited, but there is no reason that it should not be, e.g., a power to void or render voidable a contract entered into between a statutory body and another person, where the statutory body is of the view that the person is engaging in conduct discriminating against a minority group.

By the same token the parliamentary body in question could grant the statutory body a power, e.g., to render contracts void if the other party is proven to have eaten a certain type of cheese at any point in their lifetime, or played golf. These are nonsense examples but in terms of legal theory there is no reason why they are invalid as such according to the doctrine of parliamentary sovereignty.

3. As to what is fair: I do think that it is "unfair", so far as the city and its citizens are concerned, to grant a nominal lease (rather than a lease on commercial terms) in perpetuity to anyone, in the general sense, unless the citizens think that granting the lease on nominal terms is otherwise in the public interest. For a time the citizens, and the city council, thought that granting a lease on nominal price terms to the scouts was in the public interest, which is an understandable decision. It is true to say that the scouts certainly relied on the existence of this understanding, that is, that it would continue in perpetuity. It is also true that they built a building on that property on the basis of that understanding. It would be fair to say that the scouts would be entitled to compensation if the council backed out, say, 1 year after the contract was entered into. But it's been almost 9 decades. The grant of a nominal lease for 9 decades more than makes up for the price the scouts paid in building the place initially and maintaining it over the years.

Perhaps you think the council is wrong to have taken away the building from the scouts. You're entitled to think so, but that's a different thing from saying that the council has been unfair towards them. It's decided to stop being generous. There's a difference.

[Asher]

Just like everything else, Ben just makes up legal opinion, makes up numbers, pulls stuff out of his ass, ignores reality, selectively quotes, and calls things facts.

None of his moronic opinions should surprise anybody.

I was shocked he picked sodomy via scalding hot rod vs sodomy via priest penis.

[MrFun]

[Ben Kenobi]

1. If an action for breach of contract existed, the scout's lawyers would have sued for it. It's fairly clear that no such action exists as it has not been sued upon.

That's an argument from silence.

2. Whether the city can rewrite an inconvenient contract "at will" is probably the matter in issue in this proceeding.

where the statutory body is of the view that the person is engaging in conduct discriminating against a minority group.

Right there that transforms a breach of contract issue into a constitutional one, and answers your own question.

3. As to what is fair: I do think that it is "unfair", so far as the city and its citizens are concerned, to grant a nominal lease (rather than a lease on commercial terms) in perpetuity to anyone, in the general sense, unless the citizens think that granting the lease on nominal terms is otherwise in the public interest.

Given the public benefit derived from the Scouts, I think they have a reasonable argument that they mitigate some public expenses.

The grant of a nominal lease for 9 decades more than makes up for the price the scouts paid in building the place initially and maintaining it over the years.

It's not so much the why, but the how. The city never came to them and asked to renegotiate the lease based on fiscal concerns. They first past the anti-discrimination bill, and then tried to kick the scouts out altogether. It seems motivated by an opposition to what the Boy Scouts have in their charter.

[Ben Kenobi]

You don't think Sotomayor, Ginsburg, et al. will be more sympathetic to a city government than to an organization fighting to exclude gays and atheists and still keep a government subsidy?

Scalia, Roberts, Alito, Thomas and Kennedy will do a repeat of 2000.

[Ben Kenobi]

Asher still hasn't answered the damn question.

[Asher]

What question?

[C0ckney]

fair play to ben, he's the best troll on the forum by miles.

why oh why are you people still bothering, are you that bored?

[Solomwi]

No, because the issue is different than it was in 2000. They're more likely to recognize the city's right to decide who and what it subsidizes.

By the way, the "argument from silence" holds water here. Not claiming breach of the initial K, but filing suit on other grounds, means they lose the breach of initial K claim. After everything else fails, they can't go back and sue again on the same factual nucleus. Leaving out a legitimate claim is also a potential ground for malpractice, and adding one more count to a complaint is cheap and easy. People with a lot more knowledge of the case than you or anyone else in this thread and plenty of incentive to plead every claim they thought had even a chance of surviving decided that the claim you think is a slam dunk was not worth pursuing. Their silence speaks volumes.

[Ben Kenobi]

If the government were to expropriate your apartment, sell it to someone else, and gave you a cheque in the mail, would the cheque be considered a subsidy?

Yes or no, Asher.

[Asher]

I don't understand the question.

[Ben Kenobi]

By the way, the "argument from silence" holds water here. Not claiming breach of the initial K, but filing suit on other grounds, means they lose the breach of initial K claim. After everything else fails, they can't go back and sue again on the same factual nucleus.

If Philly is claiming that they have a right to breach contracts based on wrongful discrimination, this is an equal protection claim on the part of Philly. It assumes breach of contract exists. It also makes sense to take up the constitutional argument if this is where they are going.

Leaving out a legitimate claim is also a potential ground for malpractice, and adding one more count to a complaint is cheap and easy. People with a lot more knowledge of the case than you or anyone else in this thread and plenty of incentive to plead every claim they thought had even a chance of surviving decided that the claim you think is a slam dunk was not worth pursuing. Their silence speaks volumes.

It's still an argument. Their legal strategy isn't something we are privy to. Malpractice is one suggestion. Breach of contract has in fact been a strategy that has come up in other legal commentary, some of which I posted here in the thread. Just because they've chosen to go a different route says nothing about the actual status of breach of contract.

[Ben Kenobi]

Government compensation for property expropriation. Is it or is it not a form of government subsidy?

[Asher]

I think it's the vowels. There's too many vowels. Could you rephrase with more consonants?

[Solomwi]

If Philly is claiming that they have a right to breach contracts based on wrongful discrimination, this is an equal protection claim on the part of Philly. It assumes breach of contract exists. It also makes sense to take up the constitutional argument if this is where they are going.

No. An equal protection claim may exist, but not the one you're describing here.

It's still an argument. Their legal strategy isn't something we are privy to. Malpractice is one suggestion. Breach of contract has in fact been a strategy that has come up in other legal commentary, some of which I posted here in the thread. Just because they've chosen to go a different route says nothing about the actual status of breach of contract.

It says everything about it, because you don't have to choose among routes in a lawsuit, and the lawyers for the Scouts have strong incentives to include every viable claim. You throw in every theory of relief you possibly can, even when they conflict with one another. The lawyers here actually did that, by suing both for breach of K and unjust enrichment. Yet they didn't sue for breach of the initial K, even though failure to do so, if there was a claim there, would open them up to liability for the entire amount of damages the Scouts lost out on. It's safe to assume they assessed the claim and found it not worth even including in the complaint. Given that they did include two state law claims that were dismissed very early, and that breach of initial K is an obvious claim to consider, there can't have been much to the initial K claim at all. If there were, it would have been included.

By the way, malpractice isn't a strategy, and we're privy to a good bit of their strategy, as it was revealed in the complaint.

The only legal commentary I've seen you post is the Leonard Link blog post that I caught you selectively quoting, which doesn't talk about breach of the initial K at all. Even if it or others did, you still have the problem that the commenters are also working with far less information about the case than the lawyers who filed the suit.