Opinion
Civil Action No. 00-2237 SECTION "K"(4)
December 21, 2000
Before the Court is Defendants' Motion, Pursuant to F.R.C.P. Rule 62, For Stay of Preliminary Injunction (Doc. 16) which was set for November 11, 2000. Richard L. Stalder, Secretary of the Louisiana State Department of Public Safety and Corrections, and John Kennedy, Treasurer of the State of Louisiana have moved the Court to stay the effect of the order entered on August 29, 2000 granting a preliminary injunction in this matter and to suspend said preliminary injunction during the pendency of defendants' appeal therefrom. Having reviewed the pleadings, memoranda and the relevant law, the Court finds no merit in this motion.
In order to obtain a stay of an injunction pending appeal under Fed.R.Civ.P. 62, the moving party must show: (1) a likelihood of prevailing on the merits on appeal; (2) that it will suffer irreparable injury from the denial of th stay; (3) that other parties will not be substantially harmed; and (4) that granting the stay will serve the public interest.Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 23 (5th Cir. 1992). Additionally "the stay of an equitable order is an extraordinary device which should be granted sparingly." United States v. State of Louisiana, 815 F. Supp. 947, 948 (E.D.La. 1993) (quoting United States v. Texas, 523 F. Supp. 703, 723 (E.D.Tex. 1981).
Obviously this Court is not of the opinion that the defendants are likely to prevail on the merits. Defendants have failed to prevail on the merits for the reasons set forth in the Court's 22 page opinion on August 29, 2000. This Court found that the statute clearly violated the First Amendment and abridged the right of free speech as the statute is not viewpoint neutral.
The defendants' principle argument is that because the message on the license plate is the message of the State, the message is protected under the First Amendment. Again, for the reasons given in the original opinion, this argument is without merit. Additionally, the defendants mischaracterize this Court's opinion. Although clearly the State has embraced the "Choose Life" plate as its message, the speech at issue is that of private citizens expressing it through a forum for private speech created by the State which is undoubtedly not viewpoint neutral. In this case, the State is not "speaking" but it has created a forum for speech and is acting as a censor of speech by deciding which messages appear on license plates.
Additionally, the case was certainly ripe, again, as stated in the original opinion and which is punctuated by the State's strident proclamation that this message is the State's policy. Certainly it would then be futile for the plaintiffs to have to wait a year to convince an adamant State to change its position.
The Court is not convinced that the defendants will suffer irreparable injury or that other parties will not be substantially harmed if the stay is granted. It may be over a year before any monetary benefits would reach any organizations and certainly revenues could be raised through other programs that are not unconstitutional. The Court in essence found substantial harm when it granted the injunction and found a violation of plaintiffs' free speech rights.
Moreover the granting of this stay would not serve the public interest. In fact, it would be a disservice to the public interest to grant the stay as that action would be tantamount to perpetuating a Constitutional violation. Accordingly,
IT IS ORDERED that Defendants' Motion, Pursuant to F.R.C.P. Rule 62, For Stay of Preliminary Injunction is DENIED.