The opinion of the court was delivered by: David N. Hurd, United States District Judge
On March 7, 2003, defendants filed a Notice of Appeal regarding the Memorandum-Decision and Order filed on February 20, 2003, permanently enjoining defendants from enforcing certain sections of the New York State Code of Judicial Conduct ("Code"). Defendants now move for a stay of that permanent injunction pending a resolution of the appeal. Plaintiffs oppose. The motion was taken on submission of the papers without oral argument. Familiarity with the February 20, 2003, Memorandum-Decision and Order is assumed. See Spargo v. New York State Comm'n on Judicial Conduct, 244 F. Supp.2d 72 (N.D.N.Y. 2003).
Four factors must be considered in determining whether to issue a stay pending appeal. Mohammed v. Reno, 309 F.3d 95, 100 (2d Cir. 2002). The factors are "the likelihood of success on the merits, irreparable injury if a stay is denied, substantial injury to the party opposing a stay if one is issued, and the public interest." Id. (citing Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113 (1987)). The required degree of likelihood of success on the merits varies according to the assessment of the other three factors. Id. at 101. In other words, where there is lower quantum of irreparable injury to the movant if a stay is denied, then a higher showing of likelihood on the merits is required. See id. The inverse is also true. See id. Additionally, "mere repetition of arguments previously considered and rejected cannot be characterized as a `strong showing'" of success on the merits. Schwartz v. Dolan, 159 F.R.D. 380, 383 (N.D.N.Y. 1995), vacated in part, 86 F.3d 315, 318 (2d Cir. 1996) (noting that it also denied a stay pending appeal). Because the degree of the likelihood of success on the merits varies depending upon the other factors, it will be considered last.
1. Irreparable Injury to Defendants
Defendants argue that absent a stay pending appeal, the Commission is impeded from carrying out its mandate under the New York Constitution, and there is confusion and delay in its proceedings. However, as was previously made clear, the Commission is free to pursue misconduct proceedings pursuant to any Code provisions that were not challenged. See 244 F. Supp.2d at 92. Further, should the decision be reversed on appeal, the Commission could then proceed with any charges. The only possible injury is delay in Commission proceedings. Any delay would not constitute irreparable injury, because proceedings would recommence upon resolution of the appeal. Concern regarding delay pending appeal would better be resolved by requesting an expedited appeal rather than a stay. In sum, a delay in pursuing charges based upon the provisions found to be unconstitutional will result in no irreparable injury to defendants. Defendants further contend that irreparable injury results because no other Code provisions prohibit unlawful conduct. Again, the only harm from not proceeding with misconduct charges based upon unlawful activity would be delay, lasting only as long as the appeal is pending. In addition, as defendants point out, misconduct based upon unlawful conduct could be pursued while the appeal is pending based upon the state constitutional provision permitting removal of judges "for cause." Further, unlawful conduct should be addressed by a criminal prosecution. There is no irreparable injury to defendants if the stay is denied.
2. Substantial Injury to Plaintiffs
Permitting the Commission to proceed with misconduct charges based upon unconstitutional provisions of the Code would result in substantial injury to plaintiff Spargo. Defendants assert that any such harm can be avoided by continuing the injunction solely as to Spargo. Then the Commission could proceed with misconduct charges against other judges based upon the unconstitutional provisions of the Code. In effect, defendants argument is that harm to Spargo could be prevented, while permitting substantial injury to all those judges against whom charges are brought based upon unconstitutional Code provisions. In other words, remove the risk of harm as to Spargo — at the same time subjecting countless others to the same harm. This argument is rejected out of hand.
Defendants argue that the public interest weighs in favor of granting the stay. They argue that delays will occur absent a stay, and that lengthy delays would create havoc in the Commission's carrying out of its (state) constitutional mandate.
Defendants first assert that the significance of the public interest is demonstrated by the derivation of the Code from the American Bar Association provisions and the similarity to the code of conduct applicable to federal judges.*fn1 That similar provisions may apply to judges outside of the New York State judiciary does demonstrate that there is a significant public interest at stake. However, the public interest will not be served by permitting pursuit of misconduct charges, in New York, based upon unconstitutional Code provisions. Rather, the public interest of New Yorkers will be served by prohibiting the Commission from bringing misconduct proceedings that impinge upon constitutional rights, demonstrating that constitutional rights are of the highest import in New York. Similarly, the public interest of other jurisdictions would not be served by permitting ...