The trial of the Upper Merion 5

Columnist : Albert Paschall

The Upper Merion 5 are as unlikely a bunch to engage in a conspiracy to violate anybody’s civil rights that you’ll ever meet. They include a mother, a software development specialist, an insurance executive, an attorney and a somewhat outspoken retired builder. For the time they put in every year they are paid about $1 an hour to be the Supervisors of Montgomery County’s Upper Merion Township.

Dr. Steven C. Brigham is no stranger to court rooms. As a principal in American Women’s Services he has lost legal battles in the Lehigh Valley, Centre County, Erie and two other states. While Dr. Brigham’s attorney says that he offers a variety of gynecological services his 24 square inch ad in the local yellow pages only advertises one: abortion.

In early 2001 American Women’s Services rented part of a 4-story office building on busy Route 202 in Upper Merion. The building also hosts a bank, real estate agency, an internet company, a law office and other businesses. Immediately after American Women’s Services began their advertising campaign noisy pro-life demonstrators launched a very vocal, graphic and constant protest on the sidewalks around the building. Intimidated by the demonstrators, customers of the other businesses in the building complained and the township zoning officer was called in to review American Women’s Services practices.

Pennsylvania’s Municipal Planning Code, the governing doctrine for zoning in the state, draws a broad distinction between a clinic and a medical practice. A clinic can perform minor surgical procedures. Patients are generally in a clinic longer than an ordinary doctor’s office and that requires more parking spaces in a multi-tenant building. Since even minor surgical procedures can have unexpected problems enough space is required to bring in emergency vehicles if it becomes necessary to transport patients to a hospital. For these reasons Upper Merion’s zoning code states that a clinic can only occupy space in a building that is on 3 or more acres. The building that American Women’s Services rented space in doesn’t qualify, it isn’t big enough.

When Upper Merion’s zoning officer rendered the opinion that American Women’s Services was a clinic the township’s zoning board held 7 long hearings before upholding his decision to close the clinic as a non-conforming use. A Montgomery County judge agreed with the zoners. American Women’s Services, now closed in Upper Merion, is appealing the zoning decision in Commonwealth Court and has every right to go on to the State Supreme Court if it loses but it’s a process that could take years.

In a maneuver designed to circumvent the legal process for zoning appeals that everyone else in Pennsylvania has to follow, Dr. Brigham has filed a Federal Suit naming the Upper Merion Board of Supervisors, personally and individually, as defendants. His lawyers allege that the supervisors, members of the zoning hearing board as well as the township manager and zoning officer are all co-conspirators organized to deprive the doctor of his civil rights.

Earlier this month U.S. District Judge Michael M. Baylson turned down the township’s request to dismiss the charges. The Upper Merion 5 are likely to face a Federal jury trial in the next year. Having been named personally in the suit they face years of litigation, potentially enormous legal fees and loss of time at work. If they are found guilty of enforcing the township’s code they could face huge judgments.

It’s not the first time a Federal Judge who wanted to be a footnote in law journals did so at the expense of an entire system or good people. This transparent attempt to intimidate local officials is working. Just last week two of Upper Merion’s Supervisors discussed settling the case by allowing the clinic to re-open. Who can blame them? There’s no potential justice when a Federal Judge unleashes a jury to investigate civil rights violations in safety codes. More importantly the trial of the Upper Merion 5 raises the chilling specter that someday all of Pennsylvania’s municipal zoning codes could be aborted in Federal Court.

Albert Paschall
Senior Commentator
The Lincoln Institute of Public Opinion Research, Inc.
[email protected]