ML20078S109

Answer Opposing State of Ma Atty General Bellotti 831028 Motion to Disqualify Judge Hf Hoyt.Motion Untimely & Fails to Show Bias.Certificate of Svc Encl

ML20078S109
Person / Time
Site:	Seabrook
Issue date:	11/08/1983
From:	Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20078S107	List: ML20078S106 ML20078S109
References
ISSUANCES-OL, NUDOCS 8311150409
Download: ML20078S109 (18)

Text

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Filed: Novembar 8, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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PUBLIC SERVICE COMPANY OF NEW ) Docket Nos. 50-443 OL HAMPSHIRE, et al. ) 50-444 OL

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(Seabrook Station, Units 1 & 2) )

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APPLICANTS' ANSWER TO MASSACHUSETTS' ATTORNEY GENERAL'S MOTION TO DISQUALIFY JUDGE HELEN F. HOYT Pusuant to 10 CFR $$ 2.704, 2.730, the Applicants hereby answer the pleading served on them by mail under certificate dated October 28, 1983, and entitled

" Attorney General Francis X. Bellotti's Motion for Disqualification and Recusal of Judge Helen F. Hoyt and Motion for Reconsideration of Judge Hoyt's Ruling on Motion for Summary Disposition and Motion for Rehearing." (Hereinafter this document is referred to 8311150409 831108 gDRADOCK 05000443 PDR

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.'- l as the "MassAG Motion," the memorandum submitted with it is referred to as the "MassAG Meno," and the movant is referred to as "MassAG".)

. Introduction On October 7, 1983, another party (SAPL) filed a motion calling for'the recusal of Judge Hoyt, based on the ground that Judge Hoyt was personally biased against SAPL and others. (Hereinafter SAPL's motion for recusal is referred to as "SAPL Motion.") Answers to this motion were filed by the Applicants

(", Applicants' SAPL Reply") and by the Staff, both to the effect that the motion was without basis and ought to be denied. No other party filed an answer to this

, motion, including the Attorney General of the Commonwealth. Indeed, MassAG apparently made an election not to submit a timely respec3e to the SAPL Motion notwithstanding that SAPL's motion made the conduct'of one of the Attorney General's assistants its centerpiece and necessarily focussed attention on the propriety of that assistant's behavior in the courtroom.

On October 28, 1983, after the time for filing responses to SAPL's motion had elapsed and after having

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received at least the Applicants' response to SAPL's motion, the Attorney General of Massachusetts apparently determined for the first time that recusal of Judge Hoyt was required under the circumstances of this case, and he then filed his own motion. At least in part, MassAG states that his Motion was filed out of a desire to respond to the Applicants' SAPL Reply.

MassAG Motion at 3.1 This pleading is in response to that document.

Like the SAPL motion on which it is apparently modelled, the MassAG Motion is a shotgun blast consisting of a series of small incidents selected out of an already large record. Like the SAPL motion, it presents history in a distorted and out-of-context fashion.

1 The idea that a motion to recuse is an appropriate vehicle by which to file what is in reality a reply to a reply is bizarre on its face. Besides observing that NRC practice does not provide for replies to answers to motions absent leave, we point out that we have found nothing in the MassAG Memo that purports to respond to anything said in Applicants' SAPL Reply.

The Motion is Untimely The Motion is based on a series of events. Of these, the earliest occurred on May 6, 1983, which is more than 6 months ago. The most recent occurred on August'31, 1983, which was 68 days ago. MassAG was present during each of the events complained of, and thus had both notice and knowledge immediately. As a consequence MassAG waited for more than 60 days to file a motion after the last act of which it now complains occurred. Under the circumstances, the delay, besides severely calling into question'the bona fides of the Attorney General, requires denial of the motion on a peremptory basis, it being the rule in this agency as well as it'is the rule in the courts that a motion premised on so serious a matter as recusal of the judge must be filed as soon as the purported grounds are known. Northern Indiana Public Service Co. (Bailly Nuclear Generating Station, Nuclear-1), ALAB-224, 8 AEC 4

244, 247 (1974); Commonwealth Edison Co. (Zion Station, Units ~1 & 2), ALAB-226, 8 AEC 381, 384-86 (1974); Puget Sound Power Light Co. (Skagit Nuclear Power Project, Units 1 & 2), ALAB-SS6, 10 NRC 30, 32 n.6 (1979).

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Specific Responses Like the SAPL motion of like tenor, the Motion is a collection of unrelated events, spread over a long period of time and arranged out of chronological order.

We respond to each in the order in which they are set forth in the Motion.

1. The Shotwell Affair of August 18, 1983. This same matter was advanced in the SAPL Motion. After pointing out SAPL's want of standing to pursue the point, the Applicants' responded on the " merits."

Applicants' SAPL Reply at 12-16. MassAG now raises the same arguments, presumably to aid SAPL in its standing difficulties.2 The Applicants rely upon what they said earlier.8

2. Treatment of the Representatives of Interested Municipalities. Under this rubric MassAG raises again 2

Though apparently MassAG did not believe the matter worthy of a motion for recusal prior to the time that SAPL's lack of standing was pointed out.

aApplicants also rely upon the matters set forth in the " Introduction" to their SAPL Reply (pp. 1-9), which apply with equal force to the MassAG motion.

the matter of the assertions of witness signaling.

Singularly absent from the discussion is any assertion of any bias directed against MassAG. For this reason, MassAG is without standing to assert the motion in this respect. Puget Sound Power & Light Company (Skagit Nuclear Power Project, Units 1 and 2), ALAB-556, 10 NRC 30, 33 (1979). The Commission's requirement of standing having already been pointed out in a document that MassAG acknowledges having received and considered (see Applicants' SAPL Reply at 12), this aspect of MassAG's motion is frivolous.

Should the " merits" of these assertions be considered, the Applicants rely upon their prior response. See Applicants' SAPL Reply at 17-28.

3. The Right to Make a Speech. Under this subheading, MassAG discusses a transgression of which it believes itself to have been one of several victims.

As noted above, MassAG's standing is limited to matters in which it was involved.

Only one paragraph of this 8-plus page section refers to MassAG. In context, what occurred was that counsel for MassAG was determined to have comported herself in a fashion that fell beneath the standards

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f, required by, inter alia, the Commission's regulations, and counsel had been told that further participation was conditioned upon an apology. Counsel, in response, had stated in no uncertain terms her refusal to apologize for her outburst. In defiance of the stated condition, however, she attempted to persist in laying -

remarks upon the record.

The MassAG Motion contains no discussion of how the Chair's pretermission of counsel's speech supposedly represents bias. It was, in fact, nothing more than an attempt to enforce an order. In any event, given the correctness of the Chair ruling on the quality of counsel's conduct, and given the Chair's clear discretion to control the making of remarks on the record (see Applicants' SAPL Reply at 22-24), MassAG's complaint on this score is singularly without merit.

4. The Sidebar Conference of August 18, 1983.

Following SAPL's lead, MassAG next discusses the Board's calling of a sidebar conference on August 18, 1983, for the purpose of pleading for order and decorum in the balance of the hearings. Stripped of references to supposed transgressions committed against other parties, this-section comes down to a single phrase,

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" Judge Hoyt, criticized Assistant Attorney General Jo Ann Shotwell . . . ." MassAG Memo at 32. If-Ms.

Shotwell was criticized, however, it was only for her curious notions about the relationship between lawyer

.and judge, and her notion'that the obligations of-respect for the Court and proper comportment are somehow conditional.' This section of the MassAG motion, insofar as it discusses anything of which 1

'MassAG has standing to complain, misses the mark of e

bias by a large margin.

• The entire exchange between the Chair end Ms.

Shotwell appears at Tr. 4-6 of the Sidebar Conference of August 18, 1983. With no criticism articulated, the Chair called upon Ms. Shotwell to lead off a round-robin of assurances from counsel that decorum would.be '

restored. 'Ms. Shotwell not only declined'to give the assurance requested, but she delivered a speech the

' theme of.which was her view that she need only be respectful of the Court if she is satisfied that the Court has been adequately respectful of her: ,

"I believe I can respond in kind. . . . If I am spoken to in a respectful manner, I respond in a respectful manner."

The judge responded with an observation that Ms. 1 Shotwell's view of the applicable rules of courtroom behavior was erroneous. If this is the " criticism" to

-which AG Memo refers, it was criticism that was particularly apt and plainly warranted.

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5. The Chichester Ejection. Under its next heading, the MassAG motion discusses what it believes to be the similar treatment afforded Ms. Shotwell and the lay representative for the Town of Rye. The Shotwell-related matter, however, is nothing but a reference back to the Chair's having imposed a condition upon counsel's further participation in the proceedings of an apology for unprofessional and disrespectful conduct.

The Chichester matter, however, was very different, and frankly we are astounded to find MassAG either defending Mr. Chichester's behavior or equating his behavior with that of Ms. Shotwell. Prescinding from MassAG's lack of standing to complain about what happened to Mr. Chichester, the fact of the matter is that Mr. Chichester was ejected from the proceedings because of his deliberate, disruptive and contemptuous further episodes of cheering during and following Limited Appearance Statements made by members of the public. Tr. 1806, 1810. To describe Mr. Chichester's shouts of "Well said!" and boisterous applause (in which he was quite alone), rendered from seat within the bar reserved for counsel and participants, as g 9 y-e ,y-,-wi ,-1 -+e,t.

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" comments of approval made to two witnesses" (MassAG Motion at 35) is to distort the facts. To assert further that Mr. Chichester was ejected because he attempted to deliver an' oral motion is to ignore the facts altogether; at that point in time, Mr. Chichester had already been ordered to leave, had refused, and was engaged in a. struggle with the court officers when he made the outburst that apparently was intended to refer Lto some motion. Tr. 1812, 1814.

We submit that there is not a court anywhere in the United States that would not have ejected Mr.

Chichester under the sam'e circumstances. We are surprised that the Attorney General of the Commonwealth of Massachusetts should condone th'e outbursts and criticize the attempt to maintain order.

6. Judge Hoyt's Communication with the Selectmen of Rye. .MassAG next complains about the Board's having' communicated directly and promptly with the responsible officials of the Town of Rye following the expulsion of Mr. Chichester. Prescinding from MassAG' lack of standing._with respect to this matter, and prescinding from.the lack of any connection apparent or asserted between the fact of the communication and " bias"

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exhibited toward the Commonwealth, MassAG is again engaged in a d2;tortion. What MassAG omits to set forth in its Motion is the content of the communication, or the fact that it was promptly reported by the Board to the partics.

The' facts are that, as was reported to all of the parties by the Board, promptly following the expulsion of Mr. Chichester, the Board sought to notify the chief executive officials of the Town to apprise them of what had occurred so that they could appoint a successor representative in time for the next session of the proceedings (five days hence). The Board's concern, as expressed to all parties, was that the Town not be deprived of representation because of the consequences of Mr. Chichester's behavior. Under the circumstances, not only was there nothing improper in the communication, but rather the very communication of which MassAG complains demonstrates the Board's solicitude for the rights and interests of the Town of Rye.

7. The Delayed Commencement of Hearings on August 31, 1983. MassAG next complains about the Board'ss declining to reconvene hearings on August 31, 1983, unless and until Mr. Chichester, who had been previously expelled from the hearings and who was at that very moment defying a directive to vacate the seating within the bar reserved for participant <. left the jury box. The Board, however, was faced with only three alternatives: (i) to surrender its duty and authority in the face of Mr. Chichester's' defiance, (ii) to have Mr. Chichester physically expelled, or (iii)-to " wait him out." MassAG doesn't indicate which it would prefer and we hesitate to speculate. In any event, the first option was clearly unacceptable and the Board deserves credit rather than opprobrium for eschewing the second.

As the waiting progressed, the Board asked the court officers to request each of the attorneys in the 5

MassAG fails to point out that Dr. Harbour was present during and concurred fully with the procedural handling of matters of August 31, 1983.

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courtroom to repair to the lobby. There, in the presence of all, the Board informed us cf what was causing the delay and its decision in the ma'cter, invited suggestions of alternative courses (no one, including counsel for MassAG, had any to advance), and invited anyone who thought they might have influence over Mr. Chichester to urge him to stand down into the public section of the courtroom. The only person not invited into the judge's lobby was the lay representative from the Town of Hampton Falls (who was at that moment in deep conversation with Mr.

Chichester). Under the circumstances we believe that the Board acted well within its rights, with laudable circumspection, and displayed bias toward nore,

8. " Ridiculing Remarks". MassAG closes with a miscellany of eight selected remarks that, as it perceives things, demonstrated ridicule toward certain persons. Two of the selections don't involve MassAG.

With one that does we have already dealt (see

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Applicants' SAPL Reply at 16 n.11). 'The balance are sufficiently trivial as to require no reply in depth.s sone, however, deserves comment, for it reveals the attitude that MassAG imported into the courtroom.

Previously the Board had received and ruled upon motions for summary disposition, including one dealing with NECNP Contentions III.12 and .13. MassAG took no part in the litigation of that issue and it did not oppose the motion. The motion was allowed in part by the Board, and the Board's order limited the scope of the issue that would remain for factual hearings.

When MassAG later proffer testimony addressing issues that the Board had already granted summary jusgment on, and objections were made, MassAG took the astounding position that it was somehow not bound by the Board's ruling:

[MS. SHOTWELL: ] The inicial point is that we are participating in this proceeding at this point as an interested state. In my view and reading of the rules and the case law that I am familiar with under it, I do-not know of anything that would restrict us on the basis of what happened to us on the basis of what happened to NECNP's contentions on the basis of our motion for summary disposition on those contentions.

My reading of the rules is that we are to be provided a reasonable opportunity to participate and to introduce evidence and advise the Commission, without being required to take a position with respect to any issue.

I cannot see, therefore, how we are bound by what happened with recpect to a motion for summary judgment on NECNP's~ contention.

If need be, this testimony can be viewed as our presentation as an interested state of the 4

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Conclusion For the foregoing reasons, the Motion should be denied.

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L. K. Gad III' 'N Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 Telephone: . 423-6100 Dated: November 8, 1983 matters on whi.n we are concerned within the general scope of this proceeding.

JUDGE HOYT: The matter that is before the Board, Ms. Shotwell, is what was,_left of NECNP's contention. It is on that basis that you may participate as an interested state without going through the ritual of filing the contentions.

Am I *1nderstanding you to interpret the term

' interested state'- as giving you free reign to hot-dog it through this record?

I hate to use that term; but it's a gocd skiing term, so why not?

MS. SHOTWELL: Let me be clear that I feel that even if the formal limitation does apply, that our

! testimony remains admissible. I feel it is l admissible, given the Board's order, NECNP's contentions. I'm simply making an additional point here, which is that it's my understanding, as an interested state, we are not required to submit y- 7 - ~ , ,_--7y.ww - . m . ,.wo.~.e n-,y.. ,, y ,.y- ,,_,w7ym. ,,,,,,,,.73 ,.--,y,y..-,,e +- --ww v t e r r- - u- e-m W -se -w +rv*e

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CERTIFICATE OF SERVICE I, Robert K. Gad III, one of the attorneys for the Applicants herein, hereby certify that on November 8, 1983, I made service of the within APPLICANTS' ANSWER TO MASSACHUSETTS'~ ATTORNEY GENERAL'S MOTION TO DISQUALIIfY JUDGE HELEN F. HOYT by mailing copies thereof, postage prepaid, to:

Helen Hoyt, Chairperson Diana P. Randall Atomic Safety and Licensing 70 Collins Street Board Panel Seabrook, NH 03874

.U.S. Nuclear Regulatory Commission

. Washington, DC 20555 contentions.

4 JUDGE HOYT: That's correct.

MS. SHOTWELL: We are required to notify the Board or other parties of the areas of concern to us.

The-Board ruled that we had done so by submitting l

-contentions'of off-site emergency planning, which included ~ concerns about evacuation, time estimates, and specifically these concerns, adverse weather and simultaneous beach evacuations.

JUDGE HOYT: And you muy participate on this basis, Ms.

Shotwell, as an interested state. But what I'm reading into your remarks is that you feel that you have a right to make cross-examination beyond what a party could do.

MS. SHOTWELL: All_I'm suggesting is that I don't believe we are bound by'what transpired in the~ context of a motion'for summary disposition on NECNP's contentions. If we're allowed to participate on the two issues, adverse weather, simultaneous beach evacuation, I do not believe that the argument can be mada that

something that didn't happen in the context of that motion for summary disposition binds us. It's a much narrower point that we have free reign."

Tr. 1143-45.

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' Dr . Emmeth A. Ltebke William S. Jordan, III, Esquire Atomic Safety and Licensing Harmon & Weiss Board Panel 1725 I Street, N.W.

U'.S. Nuclear Regulatory Suite 506 Commission Washington, DC 20006 Washington, DC 20555 Dr. Jerry Harbour G. Dana Bisbee, Esquire Atomic Safety and Licensing Assistant Attorney General Board Panel Office of the Attorney Ceneral U.S. Nuclear Regulatory- 208 State House Annex Commission Concord, NH 03301 J

Washington,:DC 20555- -

Atomic Safety and Licensing Roy P. Lessy, Jr., Esquire Board Panel. Office of the Executive Legal U.S. Nuclear Regulatory Director-Commission- U.S. Nuclear Regulatory

, Washington, DC 20555 Commission Washington, DC 20555 Atomic Safety and Licensing Robert'A. Backus, Esquire Appeal. Board Panel 116 Lowell Street U.S. Nuclear Regulatory P.O. Box 516 Commission Manchester, NH 03105 Washington,-DC 20555 Philip Ahrens, Esquire Anne /erge, Chairperson Assistant Attorney General Board of Selectmen

' Department of the Attorney Town = Hall

' General _

South Hampton, NH Augusta, ME 04333 David ~R. Lewis, Esquire Jo Ann Shotwell, Esquire 1 Atomic Safety and Licensing Assistant Attorney General Board-Panel Environmental Protection Bureau U.S.. Nuclear Regulatory Department of the Attorney General Commission One Ashburton Pl.ce, 19th Floor

-Em. E/W-439 .

Boston, MA 02108 Washington, DC;20555 Charles Cross, Esquire Ms. Olive L. Tash Shaines, Madrigan.& McEachern Designated Representative of 25 Maplewood' Avenue the. Town of Brentwood P. O. Box.366 R.F.D. 1, Dalton Road 7

Portsmouth, NH 03842 Brentwood, NH 03833

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Ms. Roberta C. Pevear Mr. Patrick J.'McKeon

. Designated Representative of Selectmen's Office the Town of Hampton Falls 10 Central Road Drinkwater Road Rye, NH 03870 Hampton Falls, NH 03844 Mrs. Sandra Gavutis Mr. Calvin A. Canney Designated Representative of City Manager the Town of Kensington City Hall RED 1 126 Daniel Street East Kingsten, NH 03827 Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S. Senate Chairman of the Washington, D.C. 20510 Board of Selectmen (Attn: Tom Burack) Town of Newbury Newbury, MA 01950

-Senator Gordon J. Humphrey Mr. Richard E. Sullivan 1 Pillsbury Street Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950

< Mr. Donald E. Chick Town Manager's Office Town Manager Town Hall Town of Exeter Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 Brian P. Cassidy, Esquire Brentwood Board of Selectmen Regional Counsel RED Dalton Road

-Federal Emergency Management Brentwood, M3 03833

, Agency - Region I 442 POCH Boston, MA 02109 N,

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