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Brief Opposing Judge Ee Hill Disqualification.Hill Remarks Were Neither Extrajudicial in Origin Nor So Egregious as to Manifest Pervasive Personal Bias Against Citizens Concerned About Nuclear Power.Certificate of Svc Encl
	ML20052H863
Person / Time
Site:	South Texas
Issue date:	05/20/1982
From:	Axelrad M; JOINT APPLICANTS - SOUTH TEXAS PROJECT, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	; NRC COMMISSION (OCM)
References
	ISSUANCES-OL, NUDOCS 8205240089
	Download: ML20052H863 (28)
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION T;

,c, zu P ' 27 BEFORE THE NU, CLEAR REGULATORY COMMISSION

f. ' I In the Matter of

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HOUSTON LIGHTING AND POWER

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Docket Nos. 50-498 OL COMPANY, ET AL.

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50-499 OL

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(South Texas Project, Units 1 )

and 2)

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APPLICANTS' BRIEF IN OPPOSITION TO THE DISQUALIFICATION OF JUDGE ERNEST E.

HILL Jack R. Newman Maurice Axelrad Alvin H.

Gutterman 1025 Connecticut Avenuew, N.W.

Washington, D.C.

20036 Finis E.

Cowan Thomas B.

Hudson, Jr.

3000 One Shell Plaza Houston, TX 77002 Dated:

May 20, 1982 Attorneys for HOUSTON LIGHTING

& POWER COMPANY, Project Manager LOWENSTEIN, NEWMAN, REIS of the South Texas Project act-

& AXELRAD ing herein on behalf of itself 1025 Connecticut Ave.,N.W.

and the other Applicants, THE Washington, D.C.

20036 CITY OF SAN ANTONIO, TEXAS, act-ing by and through the City BAKER & BOTTS Public Service Board of the City 3000 One Shell Plaza of San Antonio, CENTRAL POWER Houston, TX 77002 AND LIGHT COMPANY and CITY OF AUSTIN, TEXAS 09 Y

8205240089 820520 69l PDR ADOCK 05000498 c

PDR

D TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii I.

Introduction.

1 II.

The Appeal ~ Board Did Not Apply the correct Legal Standard.

4 III.

Judge Hill's Separate Statement Does Not Evidence Bias Or Prejudice Warranting 12 Disqualification.

IV.

Conclusion.

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TABLE OF AUTHORITIES Page(s)

Judicial Decisions:

Amos Treat & Co. v. SEC, 306 F.2d 260 (D.C. Cir. 1962) 8 Cinderella Career and Finishing Schools, Inc.

v. FTC, 425 F.2d 583 (D.C. Cir. 1970) g Davis v.

Bd. of School Comm'rs of Mobile County, 517 F.2d 1044 Tdtn Cir. 19 / 5 ), cert. denied, 425 7, 9, 17, U.S. 944 (1976) 19, 20 Duffield v. Charleston Area Medical Center,'Inc.,

503 F.2d 512 (4th Cir. 1974) 6 In re Corrugated Container Antitrust Litigation, 614 F.2d 958 (5th Cir.), cert. denied, 449,,,,,,,

9 U.S. 888 (1980)

In re International Business Machines Corp.,

618 F.2d 923 (2d Cir. 1980) 7, 9, 10, 17 In re J.

P.

Linahan, Inc., 138 F.2d 650 (2d Cir.

1943) 7 In re Murchison, 349 U.S. 133 (1955) 8 Johnson v. Trueblood, 629 F.2d 287 (3d Cir.),

cert. denied, 450 U.S.

999 (1980) 7, 17 Mirra v. United States, 379 F.2d 782 (2d Cir.)

cert. denied, 389 U.S.

1022 (1967) 7, 18 Molinaro v. Watkins-Johnson CEI Division, 359 F.Supp. 474 (D. Md. 1973) 7 Nicodemus v. Chrysler Corp., 596 F.2d 152 (6th Cir. 1979) 18 Smith v. Danyo, 441 F.Supp. 171 (M.

D. Pa.

20 1977)...........................................

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TABLE OF AUTHORITIES (Continued)

Page (s )

Texaco, Inc. v. FTC, 336 F.2d 754 (D.C. Cir. 1964), vacated and remanded on other grounds, 381 U.S. 739 (1965) 8 United States v. Azhocar, 581 F.2d 735 (9th Cir. 1978), cert. denied, 440 U.S. 907 (1979) 17 United States v. Bernstein, 533 F.2d 775 (2d Cir.), cert. denied, 429 U.S. 998 (1976) 7 United States v. Grinnell Corp., 384 U.S. 563 (1966) 6 United States v. Orbiz, 366 F.Supp. 628 (D. Puerto Rico 1973) 10, 14, 18 United States v. Shotwell Mfg.

Co.,

287 F.2d 667 (7th Cir. 1961) 7 United States v. Wolfson, 558 F.2d 59 (2d Cir. 1977) 9 Whitehurst v. Wright, 592 F.2d 834 9, 10 (5th Cir. 1979) o Administrative Decisions:

Commonwealth Edison Co. (LaSalle County Nuclear Power Station, Units 1 & 2),

8, 9, 11 CLI-73-8, 6 AEC 169 (1973)

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-101, 6 AEC 60 (1973) 5, 11, 20 Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ASLB Memorandum and 1,

12, 13 Order (April 13, 1982)

Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ASLAB Order 1, 2 (April 15, 1982) iii

TABLE OF AUTHORITIES (Continued)

Page (s)

Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), Memorandum 2, 5, 8, 10, ALAB-672 (April 21, 1982) 12, 14 Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), Commission Order (May 6, 1982) 2, 3 Statutes:

Judiciary and Judicial Procedure Act 28 U.S.C.

S 144 7

28 U.S.C.

S 455 (a) 7 f

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE NUCLEAR REGULATORY COMMISSION

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In the Matter of

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HOUSTON LIGHTING AND POWER

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Docket Nos. 50-498 OL E_T A L.

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50-499 OL

COMPANY, T

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(South Texas Project, Units 1 )

and 2)

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j APPLICANTS' BRIEF.TN OPPOSITION TO THE DISQUALIFICATION OF JUDGE ERNEST E. HILL I.

Introduction On March 9, 1982, Citizens Concerned About Nuclear Power (CCANP), an intervenor in this operating license proceeding, filed a motion requesting that Judge Ernest E.

Hill recuse himself from further participation on the presiding Atomic Safety and Licensing Board.b!

On April 13, 1982, the Licensing Board denied the CCANP Motion.

Memorandum and Order, April 13, 1982.

Attached to the Licensing Board's Memorandum and Order was a separate statement filed by Judge Hill in which he explained why he declined to recuse himself.

Id. at 9-12.

Pursuant to 10 CFR S 2.704(c), the Licensing Board there-after referred the Motion to the Atomic Safety and Licensing Appeal Board for a determination of the " sufficiency of the grounds alleged."

The Appeal Board, on April 15, 1982, issued a preliminary Order requiring Judge Hill's removal from the 1/

CCANP Motion For Judge Ernest Hill To Recuse Himself From Further Participation In This Proceeding, March 9, 1982.

. Licensing Board despite the absence of " sufficient cause" in the CCANP Motion and CCANP's untimely affidavits.

Order, April 15, 1982 at 2.

The Appeal Board determined that the comments set forth in J,udge Hill's separate statement gave rise to "a serious doubt respecting [his] present ability to judge CCANP dispassionately."

Id.

The Appeal Board also indicated that a full opinion would be forthcoming.

Id.

In view of the hearing sessions scheduled for the immediate future as well as the degree of importance with which Appli-cants view the issues raised by Judge Hill's disqualification, Applicants filed with the Commission a Petition for Review of the Appeal Board's Order before receiving its formal opinion.

Subsequently, the Appeal Board issued a Memorandum, setting forth the basis for its decision to remove Judge Hill.

Memo-randum, ALAB-672, April 21, 1982.

The matter is currently before the Commission by virtue of its Order, granting Appli-cants' request for review of the Appeal Board's determination.

Order, May 6, 1982.

As set forth by the Commission, the issues for review are:

(1) whether the Appeal Board applied "the correct legal standard in determining to disqualify Judge Hill.

"; and

-2/

Applicants' Petition for Review of Appeal Board's Order of April 15, 1982, April 20, 1982.

On the same day, Applicants also filed a Motien for Actions by the Commis-sion in Light of Appeal Board's Order of April 15, 1982 seeking, inter alia, a Commission order directing the Licensing Board to proceed with hearing sessions under the quorum rule while the matter is under Commission review.

The Commission has not acted upon this request.

(2) whether Judge Hill's separate statement " constitute [s]

evidence of bias or prejudice warranting disqualification."

Id. at 1.

It is Applicants' position that the standard applied by the Appeal Board does not reflect all of the relevant considera-tions and that the governing precedents demonstrate that Judge Hill's statement does not warrant his disqualification.

For the reasons described below, Applicants request that the Commis-sion reverse the decision of the Appeal Board and reinstate Judge Hill as a member of the Licensing Board established to preside over this operating license proceeding.

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, c II.

The Appeal Board Did Not Apply An Adequate Legal Standard l

The discussion in this section of this brief shows that j

the standard enunciated by the Appeal Board is far too general-ized and fails to provide 'an objective benchmark for assessing I

Judge Hill's comments.

As we show below,.the case law dealing l

with the question of whether to disqualify judges, including 1

administrative judges, because their comments may evidence i

bias or prejudice against a party, draws careful distinctions j

between comments of extrajudicial origin and those based on the evidence and conduct of the parties and their counsel observed during the judicial proceeding.

Our analysis also reveals that where the judge's comments are of judicial origin, i

courts express an extreme reluctance to interpret them as l

evidence of disqualifying bias, and will only do so if the i

judge manifested a " pervasive" personal bias, which we show in' section III below is not the case here.

Finally our analysis l

reveals that in virtually every case, the significance of a judge's comments is not evaluated in the abstract, but rather l

is weighed in the totality of the surrounding circumstances.

We conclude from this analysis that the Appeal Board failed to recognize the distinction between statements reflecting l

extrajudicial bias and views based on the evidence and conduct j

of the parties and their counsel, failed to give suitable deference to a judge's comments of judicial origin, and failed 4

l to take into account the surrounding circumstances.

The legal f

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standard applied in this case was therefore inadequate.

The Appeal Board's April 21, 1982, Memorandum [ hereinafter cited as Memorandum] articulated the legal standard in the following manner:

"In sum.

an administrative trier of fact is subject'to disqualification.

if he has engaged in conduct which gives the appearance of personal bias or prejudgment of factual issues."

In other words, the question at hand was whether a disinterested observer could have reasonably inferred from Judge Hill's statement that he now has a personal animus against this intervenor which could affect his ability to pass judgment objectively upon its cause.

Memorandum at 6-7 (footnote omitted).-3/

The Appeal Board concluded that Judge Hill's separate statement had "affirma-tively created the impression that he harbors a deep-seated personal hostility towards CCANP and its representatives, which could be expected to affect materially his future determinations on matters of concern to that intervenor."

Id. at 10.

The standard enunciated by the Appeal Board does not give adequate consideration to the " judicial" -

"extrajudicial" distinction which the governing precedents make and to reali-ties which those precedents recognize.

During the course of a trial, particularly a lengthy one, an alert judge is con-stantly, and inevitably, forming impressions and views about

-3/

The Appeal Board excerpts from, and relies heavily upon, its decision in Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-101, 6 AEC 60 (1973) and several cases cited in Midland.

The Midland decision and the other cases are discussed at p.

8 and n.

6, infra.

. the parties and their representatives, their credibility, their character, their motives and their conduct in the proceed-ing.

Necessarily, these views are not always flattering, and from time to time judges express them in terms which are not flat or dispassionate.

But strong language addressed to a litigant, his conduct of the case, or his motives, based upon what the judge has perceived during the course of the trial is rarely interpreted as evidence that he will not do his duty and decide and conduct the case with basic fairness.

For that reason, such expressions are almost always distinguished from manifestations of personal bias or animus against a litigant which the judge carries into the courtroom from outside.

It would clearly be inappropriate for such outside factors to influence a judge's actions.

Consequently, comments are care-fully examined to determine whether they reflect a bias of "extrajudicial" origin or whether the comments are " judicial" o

in nature, i.e., represent the judge's perceptions developed during the course of the proceeding to date.

The classic arti-culation of this distinction was set forth by the Supreme Court in United States v. Grinnell Corp.:

l The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.

384 U.S. 563, 583 (1966). -4/

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The Grinnell case dealt with the standard for disqualifi-I cation of a federal judge.

The same standard is applied l

to presiding officers in administrative proceedings.

Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512 (4th Cir. 1974).

i

. EI In order for bias or the appearance thereof to be derived from an extrajudicial source, it must "arise by virtue of some factor which creates partiality arising outside of the events which occur in the trial itself."

In re IBM, 618 F.2d 923, 927 (2d Cir. 1980) (emphasis added).

Thus,

[alny opinions formed for or against a party by reason of the evidence and observed conduct before a judge in a judicial proceed-ing, and the judge's expressions of such opinions, however vigorous, are not the per-sonal " bias and prejudice" required to disqualify a judge.

Mirra v.

United States, 379 F.2d 782, 787-88 (2d Cir.), cert.

denied, 389 U.S. 1022 (1967).

This principle has been applied uniformly in numerous cases.

See, e.g.

Johnson v. Trueblood, 629 F.2d 287 (3d Cir.), cert. denied, 450 U.S.

999 (1980);

United States v. Bernstein, 533 F.2d 775 (2d Cir.), cert.

denied 429 U.S.

998 (1976); United States v. Shotwell Mfg. Co.,

287 F.2d 667 (7th Cir. 1961); In re J.

P. Linahan, Inc.,

138 F.2d 650 (2d Cir. 1943); Molinaro v. Watkins-Johnson CEI Division, 359 F.Supp. 474 (D. Md. 1973).

-5/

Ivo separate statutes address disqualification of federal judges.

28 U.S.C.

S 144 (1976) and S 455(a) (1982),

l respectively, mandate disqualification for " personal bias or prejudice" and in circumstances where a judge's " impar-tiality might reasonably be questioned."

The principle that disqualifying bias must be extrajudicial in origin has been extended to decisions.under the latter statute, which addresses the appearance of personal bias.

Davis Board of School Comm'rs of Mobile County, 517 F.2d 1044 l

v.

(5th Cir. 1975), cert. denied, 425 U.S. 944 (1976).

See also Midland, supra, 6 AEC at 66.

Clearly then, the standard enunciated by the Appeal Board does not fully reflect the practice in the federal courts or Commission precedent.

In essence, it fails to take into account whether or not Judge Hill's remarks were derived from an extrajudicial source and, if they were not, whether they were so egregious as to manifest a " pervasive" bias against the intervenor.

Furthermore, the Appeal Board's evaluation of a

Judge Hill's remarks fails to consider either the context in which they were made or the circumstances which gave rise to them.

In our view, the correct standard, developed through sub-stantial judicial experience, is whether a disinterested observer, bearing in mind all pertinent circumstances, would conclude that Judge Hill had formed opinions on the basis of information other than that gleaned from the evidence and observed conduct of the parties in the proceeding or, if no extrajudicial influence is apparent, whether his comments were so egregious as to manifest a " pervasive" personal bias, jeopard-izing his ability to preside impartially over the proceeding.

This standard was not applied by the Appeal Board.

III.

Judge Hill's Separate Statement Does Not Evidence Bias Or Prejudice Warranting Disqualification When viewed in light of the proper legal standard, Judge Hill's separate statement does not warrant his disqualification from this proceeding.

We show below that his remarks provide no indication that he has formed any opinions on a basis other than his perceptions of the evidence and the conduct of the parties during the proceeding, and accordingly, no extrajudicial taint can be ascribed to his statement.

We further show that Judge Hill's comments are similar to comments of judges held by courts not to be disqualifying and that this case is not at all similar to those in which a judge has been disqualified based on evidence of pervasive personal bias of judicial origin.

We conclude that in the circumstances of this case Judge Hill's remarks constituted acceptable comment on the conduct of a

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party's representatives and do not evidence bias, let alone the pervasive bias that must be shown to justify disqualifica-tion based on purely judicial conduct.

Judge Hill began by describing CCANP's Motion as a "per-sonal and unwarranted attack on [his] professional and moral integrity."

Memorandum and Order at 9.

This remark merely represents the Judge's reaction to the merit and substance of the Motion itself and implies no extrajudicial influence.9/

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The Appeal Board observed that by virtue of this remark Judge Hill " laid bare the depth of his resentment respect-ing the motion and its content Memorandum at 7.

(footnote continued)

To explain the actions that CCANP alleged constitute evidence of bias he described his perception of the context in which he had acted:

that CCANP's representatives engaged in a variety of trial tact,ics he found to be improper; that he had argued to his fellow Board members that the trial tactics of CCANP representatives should not be permited to unduly delay the hearing or to inject into it irrelevant matters; and that he believed these arguments constituted the behavior to which CCANP objected.

Judge Hill's remarks were apparently intended to show that his arguments to the other Licensing Board members consti-tuted advocacy of reasonable judicial positions on matters to be decided by the Licensing Board and did not manifest personal bias against CCANP.

The Appeal Board found that the CCANP motion and affidavits did not show that Judge Hill's conduct during the proceeding evidenced bias; nevertheless the Appeal Board concluded that there was appearance of bias 10/ in Judge Hill's articulation of his rationale for such conduct.

Applicants see no basis for that conclusion.

(footnoted continued)

The remark appears to be neither an irrational nor a particularly extreme reaction to what was indeed an attack on Judge Hill's personal integrity.

Indeed the members of the Licensing Board quorum also expressed resentment at CCANP's assertions.

Memorandum and Order at 7.

--10/

As discussed in footnote 5, the same legal standard is applicable to " appearance of bias" and " bias."

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The remarks of Judge Hill ci ed by the Appeal Board in its Memorandum are based on Judge Hill's observations of the evidence and the conduct of CCANP representatives during the hearing.

See Memorandum at 7-8.,There is no hint of an extrajudicial source for those remarks,,nor did the Appeal Board suggest that the remarks were extrajudicial.

While it is true that Judge Hill could have ruled on the motion without expressing his rationale in such strong terms, that fact hardly suggests an extrajudicial basis for the remarks.

While such comments, even if erroneous, are not disquali-fying (United States v. Orbiz, supra, 366 F.Supp. at 630), in this case they represent a reasonable comment on the course of this proceeding.

At the time Judge Hill issued his state-ment explaining the reasons for his decision not to recuse himself, the proceeding had been underway for about three years, and Judge Hill had observed the conduct of CCANP's representatives for over a year.

During that time over 10,000

(

pages of transcript and 280 exhibits were accumulated.

He was a member of the Board that presided over hearing sessions in which CCANP representatives cross-examined about 50 witnesses, I

including numerous senior officers of Houston Lighting &

Power Company and of its contractor, Brown & Root, Inc., as well as witnesses for the NRC Staff.

This experience clearly afforded Judge Hill an opportunity to form judgments of the l

. i sort expressed in his statement.bb!

Without attempting to provide an exhaustive list, it is not difficult to identify portions of the record reflecting actions by CCANP's repr,esentatives that could readily be des-cribed in the terms used by Judge Hill.

In addition to the recent example cited by Judge Hill, CCANP representatives were admonished by the Board Chairman on numerous other occasions to curtail cross-examination that was lengthy and unproductive;11!

it was a routine practice for CCANP representatives to continue to argue after the Board's ruling;b1! CCANP charges against Houston Lighting & Power Company, its officers and contractors

--11/

The fact that Judge Hill has observed the testimony of these witnesses is significant in another respect.

The issues here relate to the character and competence of HL&P and evaluation of the character of HL&P's officers and senior personnel must be an important factor in the ulti-mate decision.

It would detract from the decision-making process to remove a judge who has observed those key witnesses and substitute a judge who must rely primarily on a review of the cold record.

Although this factor would not be controlling if Judge Hill had demonstrated disqualifying bias, it does mean that he should not lightly be removed from this case.

--12/

While the bulk of CCANP cross-examination may be viewed as unduly long and unproductive, on a number of occasions the Board Chairman admonished CCANP counsel to stop wasting time on unproductive cross-examination (e.g. Tr. 2030-31, 2321-32, 9838, 9845, 9869, 9892, 9894-95); on several occa-sions the Board placed time limits on CCANP cross-examination to cut off the waste of time (e. g. Tr. 3988-3989, 3994, 6809, 6818, 9879-80, 9916-17), and the Board expressed concern about the repetitive nature of CCANP questions (e.g. Tr. 9495-98, 9898).

--13/

E.g.

Tr. 1357-58, 1490-91, 2030-31, 2041, 2315, 2358, 2380-82, TF76-77, 4035-39, 5530-32, 5721-22.

[

- have come in a steady stream since the outset of this proceeding,bS!

and CCANP has at times sought to inject political issues, includ-ing CCANP's anti-nuclear views, into this proceeding.bE!

The 14/

At the first prehearing conference Judge Hill attended, CCANP charges were discussed, and the stream of unsub-stantiated charges from CCANP has continued throughout.

Examples of these charges include "the FBI has found extensive evidence of false documentation of cadweld inspections [at the South Texas Project]" (Tr. 499-505);

"a climate of fear exists at the construction site" (Tr. 507-08, 564); project employees " refused to provide information for fear of losing [their] job" (Tr. 509, 565); there have been " extensive, pervasive and willfull violations of 10 CFR 50 [at STP]" (Tr. 511-12); an HL&P Vice President, Mr. J.

H.

Goldberg, was involved in vio-lations of NRC regulations by his prior employer (Tr. 2339);

HL&P's award of a contract to Brown & Root, Inc. involved some sort of conflict of interest (Tr. 3983); HL&P legal representativ?s attempted to intimidate the Texas Attorney General (Tr. 2626-31); HL&P pressured Intervenor witnesses not to testify (Tr. 4121-22); HL&P's public information director attempted to intimidate a journalist (Tr. 2648); HL&P attempted to keep a union from funding intervenors (Tr. 5219-20); Mr. Richard A.

Frazar, then HL&P's Quality Assurance Department Manager, made statements to NRC investigators which were "not credible" (Citizens Concerned About Nuclear Power Motion,

to File Additional Contentions

. dated November 21, 1981 at 28); there is a " serious question about HL&P management's commitment to comply with NRC regulations" (Id. ) ; the credibility of the testimony of an NRC inspec-tor to the effect that HL&P management has good character was subject to question because he had ordered his office sound proofed (Tr. 10,116-17).

This is just a sampling of a great variety of endless unsupported charges, many of little or no relevance to the issues, which have been l

made by CCANP against principals in this case.

The l

charges against Judge Hill and the " supporting" affidavits, which both the Licensing Board and the Appeal Board found insufficient to demonstrate bias, similarly fall in the category of unsupported charges.

i 15/

E.g., Tr. 9137-41 (arguing that the Licensing Board should consider a contention regarding political attitudes in Austin and San Antonio toward the South Texas Project and Houston Lighting & Power Company); Tr. 6742-43 (argu-ing that decisions on location of hearings would affect (footnote continued) l l

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hearing record thus supplies ample support for Judge Hill's comments; indeed they constitute a rational appraisal of the conduct of CCANP's representatives and of their motives for filing the recusal motion.

There can thus be no doubt that Judge Hill's remarks are not of extrajudicial origin.

Since Judge Hill's comments were not of extrajudicial origin they are to be judged under the standard applicable to judicial remarks, i.e. whether they manifest "a pervasive bias and prejudice."

Davis v. Bd. of School Comm'rs of Mobile County, supra, 517 F.2d at 1051.

Whether or not one agrees with Judge Hill's assessment of the conduct of CCANP's repre-sentatives, his remarks clearly fall within the ambit of language found by the courts not to evidence disquali"ying bias.

There are numerous cases in which the courts have refused to dis-qualify a judge even though the judge used language which was

" intemperate," "ill-advised," or otherwise "not condoned."

(footnote continued) an imminent Austin referendum) ; Tr. 6442-48 (arguing that hearings should be held in San Antonio because of alleged greater public interest) ; Tr. 9842-45 (attempted cross-examination on the dangers of nuclear power); and Tr. 787-91 (opening statement of CCANP comparing South Texas Project to Three Mile Island Unit 2 and citing a recent Scientific American article regarding the dispersal of the radioactive plume during a hypothetical nuclear accident).

--16/

For example, courts have refused to disqualify a trial judge for stating that he would not believe anything the defendant said, United States v. Azhocar, 581 F.2d 735, 739 (9th Cir. 1978), cert. denied, 440 U.S.

907 (1979);

for questioning the plaintiff's motives in bringing suit, Johnson v. Trueblood, suora, 629 F.2d at 291; for stating that he was " baited" by counsel, In re IBM, supra, 618 F.2d at 931-32; for stating that the petitioner's conduct was

" outrageous" and "' designed to provoke a mistrial or (footnote continued)

. The kind of remarks that demonstrate disqualifying bias are found in Nicodemus v.

Chrysler Corp., 596 F.2d 152 (6th Cir. 1979).

There the trial judge accused the defendant of

"' blatant attempt [s] to, intimidate witnesses and parties.

indicated that he would not believe "'anything that anybody from Chrysler [ told him]

.;'" and characterized defendant as "'a bunch of villains interested only in feathering their own nests The trial judge also opined that Chrysler had engaged in a "' deliberate and calculated attempt to inflict damage on the plaintiff.

.'" and that it had

"' willfully'" and "' obstinately'" attempted "'to defy the Court and to hurt the other parties.

Id. at 155-57.

The court also cited other instances of " alleged judicial overbearing," stating that taken alone they would appear proper,

"[b]ut when the above cited instances are considered in con-junction with the district court's vilification of appellant the scales are tipped perceptively.

Id. at 155 n.

8.

In addition the court noted that the judge had used intemperate language in another case.

Id. at 156 n. 9.

The distinction between the judge's scathing remarks and overbearing conduct toward Chrysler in Nicodemus and Judge Hill's remarks in the present case is clear.

In the former 1

(footnote continued) terrorize this jury or the court,'" Mirra v. United States, 255 F.Supp. 570, 583-84 (S.D. N.Y.

1966), aff'd 379 F.2d 782 (2d Cir. 1967); for stating that the defendant was trying to delay trial, United States v. Orbiz, supra, 366 F.Supp. at 630-31.

. case, the severity of those remarks, coupled with direct references to the defendant itself and other pervasive conduct, left the court little choice but to conclude that the trial judge could no longer impartially preside over the proceeding.

To the contrary, in the instant case Judge Hill's comments were not couched in inflammatory terms, no instances of over-bearing or other improper conduct exist, and the statement related only to the conduct of CCANP's representatives at the hearing, not to CCANP or the merits of its position.

A case much more closely analogous to the one at issue, but still representing comments more extreme than those of Judge Hill, is Davis v.

Bd. of School Comm'rs of Mobile County, supra, 517 F.2d at 1050 n.

7, where plaintiff's counsel cited as grounds for disqualification the trial judge's accusation that he had engaged in "a not too veiled effort to circumvent this Court's ruling [s]

The court continued that o

"[s]uch subterfuge borders on the edges of contempt."

Id.

In addition, in an earlier decision the judge had suggested that counsel had been guilty of " barratry and champerty."

(

Id. at 1049.

After determining that the controversy with l

plaintiff's counsel was not extrajudicial in origin, the court concluded that there had been an insufficient showing to warrant a finding of pervasive bias.17/

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The Davit decision is important in the present context for two additional reasons.

First, the remarks i

question, appear to have been embodied in written, judicial orders, I

as are Judge Hill's comments here.

Although many of the (footnote continued) l l

l l

20 -

Although the Appeal Board referred to Judge Hill's remarks as " intemperate" and cast in " extremely pejorative terms," such characterization hardly seems warranted by the actual tone and content of the remarks.,

In any event, the authorities show that the comments should not be held disqualifying; they were neither so harsh nor unjustified as to reflect a personal ani-mosity toward CCANP.

Viewed by the standards applied by courts to the statements of judges, who presumably have received training in legal or judicial expression, Judge Hill's remarks would fall well within the ambit of acceptable comment.18/

(footnote continued) decisions on point involve oral statements, the fact that the written remarks in Davis were subjected to the same legal standard set forth in the other decisions, casts doubt upon the Appeal Board's unsupported implication that written state-ments should be scrutinized more carefully than oral comments.

Memorandum at 9.

Secondly, in Davis as well as the present case, the Judge's remarks concerned the conduct of the representatives of the litigating party, rather than the party itself.

B6th the federal statutes and the NRC precedent appear to require or involve a showing of personal bias against a party rather than its counsel.

Davis v. Bd. of School Comm'rs of Mobile County, supra; Smith v. Danyo, 441 F.Supp. 171

(,M.D. Pa. 1977);

Midland, supra.

In fact, the Appeal Board's own pronouncement of the applicable legal standard notes that a personal animus against "this intervenor" must be demonstrated.

Memorandum at 7.

The court in Davis concluded that "an appellate court, in passing on questions of disqualification of the type here presented, should determine the disqualification on the basis of conduct which shows bias or prejudice.

. by focusing on a party rather than counsel.

. Here we have judicial activity toward lawyers without more and the result is that we find no error [in the judge's refusal to disqualify himself]."

517 F.2d at 1052.

18/

It could be argued that even greater latitude in expression j

should be accorded technical members of licensing boards since they are selected for their expertise in a technical field, not their experience in legal draftsmanship.

IV.

Conclusion A careful examination of Judge Hill's remarks reveals that they were neither extrajudicial in origin nor so egregious as to manifest a pervasive personal bias against CCANP.

There is no reason to believe that Judge Hill has formed opinions on any basis other than the evidence to date and the observed conduct of the parties to the proceeding.

Furthermore, the Appeal Board's basic premise appears to be that the statements " speak for themselves," Memorandum at 8, and can be evaluated in a vacuum.

This approach fails to comport with the practice uniformly followed by the federal courts and specifically adopted by the Commission in LaSalle.

A careful review of Judge Hill's remarks in light of all per-tinent circumstances mandates a conclusion that his disquali-fication was unwarranted and that he should be reinstated as a member of the Licensing Board.

Respectfully submitted, l

t l

Jack R.

Newman

(

\\

Maurice Axelrad Alvin H. Gutterman 1025 Connecticut Avenue, N.W.

Washington, D.C.

20036 Finis E.

Cowan Thomas B. Hudson, Jr.

3000 One Shell Plaza Houston, TX 77002 Dated:

May 20, 1982 Attorneys for HOUSTON LIGHTING OWER COMPANY, Projegt Manager LOWENSTEIN, NEWMAN, REIS of the South Texas Project act-1025 Co ticut Ave., N.W.

ing herein on behalf of itself Washington, D.C.

20036 and the other Applicants, THE CITY OF SAN ANTONIO, TEXAS, act-BAKER & BOTTS ing by and through the City 3000 One Shell Plaza Public Service Board of the City Houston, TX 77002 of San Antonio, CENTRAL POWER AND LIGHT COMPANY and CITY OF AUSTIN, TEXAS I

l

~

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

E2 ic.i 20 i 27 In the Matter of

)

HOUSTON LIGHTING AND POWER

)

Docket Nos.iS0-498;TOL OL.

' 5~0 ;4.9 9 -

COMPANY, ET AL.

)

(South Texas Project, Units 1

)

and 2)

)

CERTIFICATE OF SERVICE I hereby certify that copies of Applicants' Brief In Opposition To The Disqualification Of Judge Ernest E. Hill dated May 20, 1982, have been served on the following individuals and entities by deposit in the United States mail first class, postage prepaid, or by arrang-ing for delivery as indicated by asterisk, on this 20th day of May, 1982.

Chairman Nunzio J.

Palladino*

Christine N.

Kohl U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C.

20555 Atomic Safety and Licensing Appeal Board Commissioner Victor Gilinsky*

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Washington, D.C.

20555 Dr. John H. Buck Commissioner John F. Ahearne*

Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.

20555 Appeal Board U.S. Nuclear Regulatory Commission Commissioner Thomas M. Roberts

Washington, D.C.

20555 U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Charles Bechhoefer, Esq.

Chairman, Administrative Judge Commissioner James K. Asselstine*

Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington, D.C.

20555 U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Alan S.

Rosenthal Chairman, Administrative Judge Dr. James C.

Lamb, III Atomic Safety and Licensing Appeal Administrative Judge Board 313 Woodhaven Road U.S. Nuclear Regulatory Commission Chapel Hill, North Carolina 27514 Washington, D.C.

20555 Ernest E. Hill Administrative Judge Lawrence Livermore Laboratory University of California P.O. Box 808, L-46 Livermore, California 94550

a

- Mrs. Peggy Buchorn**

Jay M.

Gutierrez, Esq.*

Executive Director Office of the Executive Legal Citizens for Equitable Utilities, Director Inc.

U.S. Nuclear Regulatory Commission Route 1, Box 1684 Washington, D.C.

20555 Brazoria, Texas 77422 Atomic Safety and Licensing Appeal Brian Berwick, Esq.

Board Assistant Attorney General for the U.S. Nuclear Regulatory Commission State of Texas Washington, D.C.

20555 Environmental Protection Division Austin, Texas 78711 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission William S. Jordan, III, Esq.*

Washington, D.C.

20555 Harmon & Weiss 1725 I Street, N.W.

Docketing and Service Section*

Washington, D.C.

20006 Office of the Secretary U.S. Nuclear Regulatory Commission Kim Eastman, Co-coordinator Washington, D.C.

20555 Barbara A.

Miller Pat Coy Citizens Concerned About Nuclear Power 5106 Casa Oro San Antonio, Texas 78233 Lanny Sinkin**

2207 D-Nueces Austin, Texas 78705 Lanny Sinkin***

839 East Magnolia Avenue San Antonio, Texas 78212

[~= ~

Hand delivery

- Express Mail

- - Federal Express l

l

.

ML20052H863

Text

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