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A federal judge has cleared the way for an abortion clinic in Montgomery County, Pa., to pursue a claim that it was targeted for unconstitutional selective enforcement of a zoning ordinance that calls for all clinics to be situated on a lot of at least three acres. The ruling was a significant victory for the clinic, which argued that it had not been allowed to raise the selective enforcement issue in previous battles in other venues. In a 58-page opinion in Associates in Obstetrics & Gynecology v. Upper Merion Township, U.S. District Judge Michael M. Baylson of the Eastern District of Pennsylvaniarejected the township’s argument that the federal suit should be tossed out under the Rooker-Feldman doctrine due to a series of pending state court actions, including one in which a judge has enjoined the abortion clinic from operating. Instead, Baylson sided with the clinic and found that the Rooker-Feldman doctrine does not apply to its claim of unconstitutional selective enforcement of the zoning code, since that issue has never truly been litigated in the state courts. Under Rooker-Feldman, Baylson found, only the U.S. Supreme Court has the power to overturn a state court judgment, and the lower federal courts have no jurisdiction to hear claims that were actually litigated in state court or are “inextricably intertwined” with a state court adjudication. For Rooker-Feldman purposes, Baylson found, a federal claim and a state claim “are inextricably intertwined, where, if the federal claim succeeds, the state court judgment would be effectively voided.” Baylson found that when the abortion clinic attempted to raise the issue of selective enforcement in its appeal from a cease-and-desist order, it was unable to do so because the township objected. As a result, Baylson found, the clinic “could not develop an evidentiary record” on the selective enforcement issue in proceedings before the township zoning hearing board. The clinic’s lawyer, Nancy Demis, conceded that she never raised the selective enforcement issue when the case was appealed to the Montgomery County Court of Common Pleas but said she did so because the hearing board’s decision was not based on the fact that the clinic provides abortion services. As a result, Demis argued that her decision not to pursue the selective enforcement claim in the state courts could not be considered a waiver of that issue. In three other state court proceedings, Demis said, the clinic has attempted to argue selective enforcement, but no state court judge has yet decided the issue. Baylson agreed, finding that although the selective enforcement issue was repeatedly raised in the state court litigation, it was never litigated or decided. Instead, Baylson found that Montgomery County Judge Albert R. Subers “specifically refused to deal with the issue” in the hearing that led to an injunction barring the clinic from operating. According to court papers, Subers heard argument in February on the township’s complaint but refused to hear testimony on the clinic’s claim of selective enforcement. In the argument, lawyers for the township contended that the clinic was barred from raising the selective enforcement claim because of collateral estoppel or waiver. The clinic’s lawyer insisted that the “record will show that I raised this argument in front of every forum in which I had the opportunity” and urged Subers to read the briefs because they contained evidence that the selective enforcement claim had been raised and not waived. On March 11, Subers issued an order temporarily enjoining the clinic from operating and mandating that it immediately comply with the cease-and-desist order. Baylson found that Subers’ order “did not address … the merits of [the clinic's] claim of selective enforcement.” As a result, Baylson found it would be wrong to prohibit the clinic from pursuing the selective enforcement claim in federal court. “We are unwilling at this point to characterize the plaintiffs’ failure to specifically raise the selective enforcement issue in its first appeal from the zoning hearing board’s cease and desist order to the court of common pleas as a waiver of this issue,” Baylson wrote. “It is clear that plaintiffs attempted to raise the issue at the hearing before the zoning hearing board. Even assuming that plaintiffs had not strictly complied with the zoning hearing board regulations, or did not, under state procedural rules, have standing to assert the issue at that time … these state procedural rules cannot be effective to bar plaintiffs, for all time, from asserting their constitutional rights in state court.” Although the clinic’s federal civil rights suit survived the township’s Rooker-Feldman challenge, Baylson’s opinion also addressed the township’s arguments that he should abstain from hearing the clinic’s claims under either the Younger or Pullman doctrines. Baylson concluded that there was no need to abstain from hearing the clinic’s claim for damages but said he might later decide to abstain from hearing any claims for injunctive relief. The township was represented by attorney Julie Gabis.

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