(4) that the public interest will be served by granting the stay.
A moment's consideration will suggest that in this case the most important issue to be addressed is the first -- whether the Board "will likely prevail on the merits of the appeal." Thus, if we address the second issue, it is indisputable that the Board will suffer "irreparable injury" if (a) I now deny a stay, thereby forcing the Board to divulge the transcript relating to the investigation of Justice Larsen, and (b) in the fullness of time the Court of Appeals finds that I was in error on the merits.
This means that the likelihood that "irreparable injury" will ensue from denial of a stay is directly proportioned to the likelihood that the defendant will "prevail on the merits of the appeal." Similarly, the harm accruing to the plaintiffs from the grant of a stay -- the third issue -- is real if the Order entered on February 22 is affirmed on appeal but non-existent if the Order is set aside. In the same way, the public interest -- the fourth issue -- will be served by the grant of a stay if the February 22 Order is erroneous; otherwise, the grant of a stay will in some measure disserve the public interest.
I return, then, to the first of the four factors. How likely is it that defendant will prevail on appeal? I agree with defendant's submission that the Order of February 22 rests on an essentially untested constitutional analysis. In the relevant case law, as developed in my opinion of February 1, I can point to no single authoritative decision mandating (a) the holding I announced in my opinion and (b) the resultant Order. On the other hand, I have found no single authoritative decision precluding that holding and the resultant Order. If the question is whether I think that the balance of probability is that I was wrong and that my Order will be set aside on appeal, that is not my view. If that were my assessment I would not have decided the merits as I did.
I do not, however, think that whether a stay should be granted must depend on my concluding that I was probably in error. If I am satisfied that there is a reasonable possibility -- albeit not a probability -- that I was in error, it seems to me that the equities would then shift strongly towards granting a stay. For my Order purports to overturn a policy and a process which the people of the Commonwealth set sufficient store by to incorporate into the Commonwealth's Constitution. If there is a significant possibility that it is I who am in error and the Pennsylvania Constitution which is on sound federal constitutional ground, I think it is a sound exercise of my discretion as a federal judge sitting at first instance to give the Commonwealth's policy and process some breathing room -- unless to do so might seriously compromise important entitlements of the plaintiffs.
It is my judgment that being forced to await for a few more months the public disclosure of the Larsen transcript is not a serious imposition on plaintiffs. I believe this as a general matter. And I believe it in particular for the reason that the imposition is one which, evidently, plaintiffs have it within their own power to take steps to mitigate. Newspapers which are members of the plaintiff First Amendment Coalition published materials in May of 1983 which purported to be excerpted from the Larsen transcript. Presumably, those newspapers can still find in their files and share with their fellow Coalition members -- and even with the public, whose First Amendment interests they seek to vindicate -- more excerpts, or even the entirety of the transcript. Against, this background, the Coalition is less than persuasive in insisting that interim judicial intervention -- at the possible cost of undercutting the Pennsylvania Constitution without federal constitutional warrant -- is the required mode of public release of the transcript.
Wherefore, in an accompanying Order, defendant's motion for a stay pending appeal will be granted.
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that defendant's motion for a stay pending appeal is GRANTED.