James D. Schneller, co-founder of Philadelphia Metro Task Force, wants Common Pleas Judge Bernard A. Moore to invalidate the ordinance, claiming it’s harmful to children, fosters the spread of diseases and infringes on protected religious freedoms.
But Michael J. Savona, the borough solicitor for Conshohocken, said Schneller’s complaint should be dismissed without delay because it’s meritless.
Both men delivered their arguments during an hour-long hearing Feb. 17 at the Montgomery County Court House in Norristown.
Borough council members enacted the ordinance, which forbids discrimination against LGBTs in the areas of employment, housing, public accommodations and public education, in April 2011.
Discriminators face up to 90 days in jail and a $500 fine for each violation.
Schneller alleges that Conshohocken exceeded its authority in enacting the ordinance, because it added LGBT protections not included in the state Human Relations Act.
“We shouldn’t be second-guessing the state,” Schneller said.
But Savona said court cases in Pennsylvania have already settled that issue by ruling in favor of municipalities that have added local LGBT protections.
“There is nothing wrong with these ordinances,” Savona said. “They’re perfectly legal and appropriate. Conshohocken borough absolutely has the police powers to adopt this ordinance.”
But Schneller noted that one of the cases cited by Savona relied on the existence of statewide LGBT hate-crimes protections — which were later invalidated by the state Supreme Court.
Savona said the former hate-crimes protections weren’t a key factor in that case, which upheld the right of Allentown to enact an LGBT antibias ordinance.
“Nothing about the state hate-crimes law was essential to the court’s holding in the Allentown case,” he said.
Schneller is representing himself pro se in the Conshohocken litigation. He also named Philadelphia Metro Task Force as a co-plaintiff.
Savona said Schneller may represent himself, but he cannot represent another plaintiff because he isn’t an attorney.
Schneller offered to amend his complaint so that other members of his group can be listed as pro-se plaintiffs.
He said the group has about 75 members representing 20 municipalities in the state.
Schneller also alleges the borough didn’t provide ample opportunity for public comment prior to enacting the ordinance. ”There was very short notice,” he said. “It looked like a racing train.”
Savona said the borough followed all procedural requirements when enacting the ordinance.
Additionally, Savona said Schneller isn’t in a position to raise procedural issues, because he allegedly missed the Aug. 19, 2011, deadline to do so.
“His complaint was filed beyond the jurisdictional time limit for him to challenge the procedural issues,” Savona told the judge.
Savona said Schneller’s complaint wasn’t docketed by the prothonotary’s office until Sept. 14, 2011.
Schneller said he filed within the Aug. 19 deadline, but didn’t pay the filing fee at that time because he was in the process of seeking permission from the court to proceed as a pauper, which was granted Sept. 14.
Savona said Schneller should have sought permission to proceed as a pauper sooner, noting the ordinance was passed in April.
Savona also said Schneller lacks standing to challenge the ordinance because he hasn’t demonstrated any direct harm from it. He urged the judge to throw out the complaint on that basis as well.
“General allegations of harm aren’t sufficient to show standing,” Savona said. “Standing is governed by whether a party is directly and immediately aggrieved by the actions. And Mr. Schneller hasn’t been able to show that.”
Savona also noted that no member of Schneller’s group has been prosecuted under the ordinance.
Schneller offered to amend his complaint to document what he calls the ordinance’s damaging effects more specifically.
Schneller also asked the judge to disqualify Savona from the case, alleging the solicitor is biased in favor of the ordinance and hasn’t fairly represented the interests of those with a different viewpoint.
“Mr. Savona gave a totally one-sided presentation to the borough council,” Schneller told PGN after the hearing. “He isn’t supposed to act that way.”
For his part, Savona said: “I’m the appointed solicitor to the borough of Conshohocken. The borough council asked me to draft an ordinance to provide this protection. I did my job. They approved it. There’s nothing else to say.”
After both men made their presentations, the judge said he would take the matter under advisement and issue a ruling in due time.
Savona expressed optimism that Schneller’s complaint would be dismissed.
“Nobody has deprived Mr. Schneller of his rights,” Savona said. “He still has the same rights as any other citizen. What we stopped sanctioning is the idea that his rights are superior to anyone else’s.”
Timothy Cwiek can be reached at firstname.lastname@example.org.