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HOTEL & RESTAURANT EMPLES. INTL. UNION LOCAL 54 V.

April 12, 1982

HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION LOCAL 54 and Frank Gerace, Plaintiffs,
v.
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.

 I. LIKELIHOOD OF SUCCESS ON THE MERITS OF THE APPEAL

 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.

 II. IRREPARABLE HARM

 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 ...

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