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April 12, 1982

Martin DANZINGER, Acting Chairman, Donald Thomas, Commissioner, Madeline McWhinney, Commissioner, Carl Zeitz, Commissioner, Casino Control Commission and G. Michael Brown, Director, Department of Law and Public Safety, Division of Gaming Enforcement and Department of Law and Public Safety, Division of Gaming Enforcement and Thomas H. Kean, Governor, Defendants

The opinion of the court was delivered by: BROTMAN


Hotel and Restaurant Employees and Bartenders International Union Local 54 (hereinafter "Local 54"), and its president, Frank Gerace, filed this action seeking a declaration that certain provisions of New Jersey's Casino Control Act, L.1977, c. 110, § 1 et seq., as amended by L.1978, c. 7, § 1 et seq., N.J.Stat.Ann. § 5:12-1 et seq. (West Supp.1981), may not constitutionally be enforced against them. Plaintiffs also seek relief in the form of damages and an injunction. Plaintiffs have invoked 28 U.S.C.A. §§ 1331, 1337, 1343 (West Supp.1981) as sources of this court's jurisdiction. Plaintiffs sought to have this court enjoin hearings scheduled by the defendant Casino Control Commission pendente lite, and the court denied plaintiffs' motion for preliminary injunction on March 22, 1982. (See Opinion and Order, March 22, 1982).

 The matter is currently before the court on the motion of plaintiffs for a temporary injunction pending appeal, which the court has authority to grant under Rule 62(c), Fed.R.Civ.P. That rule reads in 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." Id. Plaintiffs have filed a notice of appeal from the decision of March 22, 1982, purportedly under the provisions of 28 U.S.C.A. § 1292(a) (West 1966). The court has been informed that the defendant Casino Control Commission has scheduled hearings pursuant to § 93 of the Casino Control Act. N.J.Stat.Ann. 5:12-93 (West Supp.1981), to begin on April 26, 1982.

 On a motion for an injunction authorized by Rule 62, Fed.R.Civ.P., it is well established that the court must evaluate the extent to which the moving party has made a showing as to the following four factors:


(1) the likelihood of the moving party's success on the merits of its appeal;


(2) the likelihood of irreparable injury to the moving party if the injunction is denied;


(3) the extent to which the opposing parties will be harmed if the injunction sought is issued; and


(4) the likelihood that there will be no substantial harm to the public interest if the injunction sought is issued.

 Long v. Robinson, 432 F.2d 977 (4th Cir. 1970); Philadelphia Council of Neighborhood Organizations v. Adams, 451 F. Supp. 114 (E.D.Pa.1978); Evans v. Buchanan, 435 F. Supp. 832 (D.Del.1977); Resident Advisory Board v. Rizzo, 429 F. Supp. 222 (E.D.Pa.1977). Of course, no single factor is controlling, and the court must balance the strength of the plaintiffs' showing on each of these four factors as part of its exercise of discretion in considering the motion. Phila. Council of Neighborhood Organizations, supra, 451 F. Supp., at 116, citing, Evans v. Buchanan, 424 F. Supp. 875, 879 (D.Del.1976). The court will discuss each of these four factors below.


 Plaintiffs have not filed a motion for reconsideration, nor have they treated the instant motion as one. It has been recognized that there is an almost insurmountable burden in requiring a party to satisfy a court that its decision on a matter which it has considered extensively was erroneous. Yet, this is what is required if a party is to show the court that it is likely to succeed on appeal. See Evans v. Buchanan, 435 F. Supp. 832, 835, 843 (D.Del.1977). The court does not take plaintiffs' efforts to show this court that it was in error as an affront. Nevertheless, the court feels that the arguments are best left unanswered when the other factors which the court is required to consider can determine the outcome of the motion. Plaintiffs stated at oral argument that the posture of the instant case is different from that of a case on which the court is said to have placed "primary reliance." The court feels that the opinion of March 22 should speak for itself, and that it should not indulge in discussions of which precedents were more persuasive than others if such discussion is not necessary. For this reason, the court will turn to the other factors which plaintiffs are required to show.


 The court is not satisfied that plaintiffs will suffer irreparable harm during the pendency of the appeal if the Casino Control Commission's hearings are not enjoined. Plaintiff argues that the publicity which will likely result from the hearings which are scheduled to begin on April 26 will have an impact on the elections scheduled for June, 1982, in which the members of plaintiff Local 54 will choose their leaders. Reference by plaintiffs is made to page 332 of the opinion of March 22, where it was stated:


We may not find that there is irreparable harm simply because the hearings might lead to bad publicity about the union and its leaders, as they argue. In the case of Cab Operating Corp. v. City of New York, 243 F. Supp. 550 (S.D.N.Y.1965), it was held that irreparable harm could be found where a representation election required by a municipal ordinance would interfere with a later federally sanctioned representation election. It was said in that case that the publication of the results of the first election would likely affect the outcome of the second election. It has not been shown that an election involving Local 54 is impending in the immediate future, and we do not decide whether Cab Operating Corp., supra, would be applicable here if such an election were so scheduled.

 In Cab Operating Corp., supra, the court enjoined the release of the results of a municipally sanctioned election for union representation where a federally sanctioned election was likely to follow closely on its heels under different conditions and rules. It was held that these circumstances brought the case within those which prohibited "... activities of officers or bodies purporting to act under the sanction of state or local law to coerce parties to a controversy or to force its resolution through the pressure of molded public opinion in derogation of federally granted rights." Id., at 556 (citations omitted). It is clear that the Casino Control Commission's hearings do not rise to the level of direct interference with federally sanctioned activities which was present in the Cab Operating Corp. case. Nor do the state's activities sink to the nadir of illegitimacy which the court faced in that case. Publicity about union activities is a product of a free and vigorous press, and so long as it is not engineered by state action for the purpose of undermining federally sanctioned activities, the court is not free to interfere.

 Plaintiffs also assert that irreparable harm will befall them if an injunction is not entered because certain of the issues which they raised in their motion for a preliminary injunction may be mooted during the pendency of their appeal. In their brief, at page 9, it is stated:


This entire case and the issues on Appeal revolve around proposed state activity which is now threatened to occur in its entirety pending appeal. There can be little doubt that the Commission hearings will be held in full before the merits of the Plaintiffs' Appeal are finally determined by the Third Circuit. Given that the focus of the Plaintiffs' Appeal is to obtain an injunction of the Commission hearings, if the hearings are allowed to run their course pending Appeal, the practical import of the relief sought by the Plaintiffs will be mooted. If the Plaintiffs are victorious on Appeal, such a victory will be academic. Accordingly, for this reason it is further appropriate to grant interim relief. J. Weingarten, Inc. v. Potter, 233 F. Supp. 833 (S.D.Tex.1964).

 Plaintiffs have informed this court that they have moved or will soon move for an expedited determination of their appeal. The question of whether the appeal may be determined before the Casino Control Commission takes any action which might render moot some of the issues raised by plaintiffs is solely within the control of the appellate panel. Any determination of this question by this court would be based on nothing more than mere speculation.


 This court is required to consider the extent to which an injunction might harm the interests of the defendants and of the public. Consideration of these factors on the motion for a preliminary injunction led this court to the conclusion that the state's regulatory mechanism should be allowed "to run its course, with the defendants left to their effort to apply the statute in a constitutionally permissible manner as they see fit." Opinion of March 22, at page 332. The court is reaching the same conclusion on the instant motion.


 For the reasons stated above, the plaintiffs' motion for an injunction pending appeal will be denied. The court will enter an appropriate order.


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