The opinion of the court was delivered by: David N. Hurd, United States District Judge
ORDER and PRELIMINARY INJUNCTION
On April 23, 2003, an Order to Show Cause and Temporary Restraining Order issued ordering the defendants to show cause why a Preliminary Injunction should not be issued: (1) enjoining and restraining defendants from enforcing Sections 100.1, 100.2(A), 100.2(C), 100.3(B)(6), and 100.3(E)(1)(a)(i) of the New York State Code of Judicial Conduct*fn1 ("Code"); and (2) enjoining and restraining defendants from taking any action whatsoever with respect to the Formal Written Complaint dated March 4, 2002, brought against plaintiff John G. Connor ("Connor"), alleging violations of the Code. The Temporary Restraining Order enjoined and restrained defendants from enforcing those sections of the Code and from taking any action whatsoever with respect to the Complaint. The defendants filed opposing papers. The plaintiff filed reply papers.
Oral argument was heard on May 7, 2003, in Utica, New York. Decision was reserved. The Temporary Restraining Order was extended pending issuance of a written decision.
Connor is, and has been since 1982, a Justice of the New York State Supreme Court. The defendant New York State Commission on Judicial Conduct ("Commission") served a Complaint against him alleging violations of the above sections of the Code.
Specifically, in Charge 1, the Commission contends that he violated sections 100.1, 100.2(A), 100.2(C), and 100.3(B)(6) when, in a matrimonial action, he allegedly considered improper ex parte information (from a court-appointed law guardian), rendered a decision before the parties submitted proposed findings of fact and conclusions of law, and rendered his decision the same day that plaintiff's attorney became employed as a law clerk to another justice of the New York State Supreme Court.
Charge 2 asserts violations of sections 100.1, 100.2(A), 100.3(B)(6), and 100.3(E)(1)(a)(i), in that he allegedly considered ex parte information (from both a court-appointed law guardian and an attorney), failed to promptly disqualify himself from a matter, and disqualified himself on "spurious grounds" in the same matter. The factual details of the conduct upon which the charges are based are irrelevant to the analysis and therefore are not set forth.
Sections 100.1 and 100.2(A) were previously found to be unconstitutionally vague. See Spargo v. New York State Comm'n on Judicial Conduct, 244 F. Supp.2d 72, 92 (N.D.N.Y. 2003).
A. Preliminary Injunction
A preliminary injunction should issue only where the party seeking such relief shows "that it is likely to suffer irreparable injury if relief is denied [and] also that there is either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation, with a balance of hardships tipping decidedly in the [movant's] favor." Procter & Gamble Co. v. Chesebrough-Pond's Inc., 747 F.2d 114, 118 (2d Cir. 1984); Otokoyama Co. v. Wine of Japan Import, Inc., 175 F.3d 266, 270 (2d Cir. 1999); Eng v. Smith, 849 F.2d 80, 81-82 (2d Cir. 1988). Where "`a preliminary injunction seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the less rigorous fair-ground-for-litigation standard should not be applied.'" Brown v. Giuliani, 158 F.R.D. 251, 264 (E.D.N.Y. 1994) (quoting Sweeney v. Bane, 996 F.2d 1384, 1388 (2d Cir. 1993) (internal quotation omitted)).
Irreparable harm must be imminent, not remote or speculative. Id. at 264 (citing Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)). Where monetary damages cannot compensate for the injury, the harm is irreparable. Id. (citing Studebaker Corp. v. Gittlin, 360 F.2d 692, 298 (2d Cir. 1966)).
In order to establish a likelihood of success on the merits, movants must show that their chance of prevailing is greater than fifty percent. Eng, 849 F.2d at 82 (citing Abdul Wali, 754 F.2d 1015, 1025 (2d Cir. 1985)). "`There may remain ...