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December 21, 1979

ANN KLEIN, Commissioner, Department of Human Services; MICHAIL ROTOV, M.D., Director of the Division of Mental Health and Hospitals; MAX PEPERNICK, M.D., Acting Medical Director at Ancora Psychiatric Hospital; ROBERT WALLIS, Chief Executive Officer at Ancora Psychiatric Hospital; ENGRACIO BALITA, CONSUELO SANTOS, VICTOR IVANOV, GERALD ABRAHAM, Assistant Medical Directors at Ancora Psychiatric Hospital, Defendants.

The opinion of the court was delivered by: BROTMAN

This is a motion to stay the enforcement of the court's order of September 14, 1979 in the above-captioned case, reported at 476 F. Supp. 1294 (D.N.J.1979), pending appeal of the court's decision to the Court of Appeals for the Third Circuit. This court is authorized to hear this motion by Fed.R.Civ.P. 62(c), and a party is normally required to apply to the district court first before he may apply to the court of appeals or an individual circuit judge for a stay pending appeal. Fed.R.App.P. 8(a).

This case has a long history, which is amply discussed in the court's prior opinions, 476 F. Supp. 1294 (1979) and 462 F. Supp. 1131 (D.N.J.1978). Therefore, instead of restating the entire procedural history of this case, the court will focus upon the facts relevant to this particular motion.

 On July 13, 1979, plaintiff and intervenors filed a motion for a preliminary injunction against the defendants. The court held hearings on this motion for several days, concluding them on August 9, 1979. Before issuing its ruling on the motion for a preliminary injunction, the court advised the litigants of its intended action and sought their comments on its proposed order. It explained the considerations which shaped the order in its September 14, 1979 opinion:

The court has attempted to closely tailor its order in this case to the clear violations of privacy and due process engendered by the policies of defendants. The order is designed to interfere with hospital operation as little as possible while still guaranteeing a realistic opportunity for patients to exercise their qualified right to refuse treatment. The court has also tried to include in its decree those ideas discussed by defendants themselves, but never fully implemented, which, when put into full effect, would satisfy constitutional requirements.

 In its September 14, 1979 opinion, the court made the following analysis of the merits of the motion for a preliminary injunction:

Four factors are considered in the application for a preliminary injunction: (1) whether the moving party has shown that it is likely to prevail on the merits, (2) whether the movant has demonstrated that he would be irreparably harmed if the preliminary injunction is denied, (3) whether the grant of the injunction would harm other interested parties to a greater extent than it would benefit movant, and (4) whether the public interest would be served. A. O. Smith Corp. v. F.T.C., 530 F.2d 515, 525 (3rd Cir. 1976).
After 17 days of hearings, the plaintiffs have clearly demonstrated a likelihood of prevailing on the merits on the recertified classes. It is also clear that if defendants are not enjoined plaintiffs will be irreparably harmed by the transient discomfort and permanent injury caused by medication. The court finds that prevention of these harms outweighs the additional administrative costs the order may impose on the state. Finally, protection of plaintiff's constitutional rights is indisputably in the public interest.


 The defendants' present motion asks this court to evaluate similar factors in determining whether to stay the enforcement of the order pending appeal. An application for a stay pending appeal is governed by Fed.R.Civ.P. 62(c), which provides in pertinent part:

When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms . . . as it considers proper for the security of the rights of the adverse party.

 The court's resolution of a Rule 62(c) motion is guided by four basic factors. Although different courts have not used completely identical language, they have agreed upon the list of factors, which were recently described by a district court in this circuit in Evans v. Buchanan, 435 F. Supp. 832, 841 (D.Del.1977):

A motion for a stay is addressed to the sound discretion of the Court. Coppedge v. Franklin County Board of Education, 293 F. Supp. 356, 362 (E.D.N.C.1968). The burden of (the moving parties) is to make: (1) a showing that they will suffer irreparable injury if the stay is denied; (2) a strong showing they likely will succeed on the merits of their appeal; (3) a showing the plaintiffs will not be substantially harmed by the stay; and (4) a showing no harm will be done to the public interest. Reserve Mining Co. v. United States, 498 F.2d 1073, 1076-1077 (8th Cir.), Application to vacate stay denied, 419 U.S. 802, 95 S. Ct. 287, 42 L. Ed. 2d 33 (1974).

 In view of the similarity of the standards governing decisions to issue preliminary injunctions and to stay their enforcement pending appeal, the defendants' motion to stay pending appeal seems to be defective in certain crucial ...

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