ML20082A619
| ML20082A619 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/15/1983 |
| From: | Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20082A622 | List: |
| References | |
| NUDOCS 8311180199 | |
| Download: ML20082A619 (17) | |
Text
4 a.
000KETED FILED:
N o v entt85.nC 15, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY CO.\\1 MISSION '83 ISV 17 P2:51 BEFORE THE ATOMIC SAFETY AND LICENS1NG BOARD
,t In the matter of:
PUBLIC SERVICE COMPANY OF Docket Nos.
50-443 OL NEW HAMPSHIRE, et al 50-444 OL (Seabrook Station, Units 1 and 2)
SAPL'S REPLY TO APPLICANTS' AND STAFF'S ANSWERS TO
' SAPLS ' S MOT ION FOR DISQUALI F ICATON OF JUDGE HOYT Pursuant to 10 C.F.R.
{2.730(c), SAPL respectfully moves for leave to respond to the Applicants' and Staff's Answers to SAPL's Motion for Disqualifi~ cation of Judge Hoyt.
I.
THE APPLICANTS' ANALYSIS OF THE APPLICABLE LEGAL STANDARD IS IN ERROR.
In their response the Applicants state unequivocally that:
"...the law of the Commission is that the source of an allegation of bias or prejudice must b_e extra judical, and judical reaction to a litigant's conduct in the cour t room does not suffice."
[ Emphasis added]
Citing Houston Lighting and Power Company (South Texas Project, Units 1 and 2), CL1-82-9, 15 NRC 1363 (1982).
The Applicants are wrong on the law.
Although as a general principal Houston Lighting requires bias sources to be " extra-judicial", it clearly allows f or disqualification based on judicial conduct in " extreme cases".
See Houston Lighting, infra, at 1366.
~
l First, this is indeed, an extreme case given the pervasive and continuing nature of Judge Hoyt's conduct 'toward intervenors in these l
proceedings.
(SAPL's
- Motion, pages 24-25.)
- Secondly, the Commission's general holding lied in the f ace of Congressional mandate and judicial precedent.
(See SAPL's Motion at pages 1-9.)
g1180199831115 ADOCK 05000443 g
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1 l
Appliants' counsel a.lleges that SAPL:
" Confuses a substantive standard by which judicial conduct is to be tested with a source of conduct challengable."
Applicants' Answer, page 10.
Such is not the case.
Several jurisdictions have rendered opinions since adoption of the Congressional Amendment (28 U.S.C.6455(a) holding that a judges judicial involvement in a case can-provide a factual basis for a finding of partiality.
Blizard v.
Frechette, (1st Cir. 1979) 601 F.2d at 1207, United States v.
Cepeda Penes, (1st Cir. 1978), 577 F.
2d at 754, United States, v.
Cowden, (1st Cir. 1976). 545 F. 2d at 257.
SAPL's postion that the objective recusal standard should be applied to " judicial" as well as "non-judicial" conduct in NRC proceedings does not i n any way suggest a " corrosive ef fect" as stated by the Applicants, but rather would lead.to an improved public' confidence i n the impartiality of the judicial process.
Such an objective is an appropriate one for this Commmission to foster in light of the Congressional intent in adopting 28 U.S.C.
6455(a)-as well as continued errosion of public confidence in this agency's ability to pass impartial judgment upon important safety concerns.
(See [1974] U.S. Code Cong. and Admin.
News at 6355, N. Y. Times ar t icle at tached to Mass A.G. 's Mot ion f or Disqualification-of Judge.Iloyt.).
Finally SAPL wishes to point out where the Applicants have confused the standard to be applied.
They asser t tha t SAPL's Mot ion must be denied on the basis that SAPL does not assert the Board's inablity to resolve factual disputes on the basis of evidence presented.
(Applicants' Answer, page 7.).
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First, SAPL's Motion is clearly directed at Chairman Hoyt, not t he en t i re Board.
Second, the Applicants completely missed the point of the objective recusal standard; subjective bias on the part of the Judge in question is irrelevant.
It i s the " appearance of bias" to a reasonable person which is the standard this agency has adopted.
Consumers Power Co. (Midland Plant, Uni t s 1 and 2) ALAB-101, 6 AEC 60, 63 (1973), United States v. Ritter, (CA 10, 1976) 540 F.2d at 459, United States v. Baker, (DC Tenn. 1977) 441 F. Supp. at 612, United States [.Boffa, (DC Del. 1981) 513 F.
Supp. at 505, and Fong v.
American Airlines, (DC Cal. 1977) 431 F. Supp. 1334.
11.
APPLICANTS' AND STAFF'S CHARACTERIZATION OF INTERVENOR (X)UNSEL AND MUNICIPAL REPRESENTATIVE BEHAVIOR IS DISTORTED AND UNSUPPORTED BY THE RECORD.
In their
- Answer, the Applicants run on about unprovoked
" challenges to judicial authority",
" insubordination",
and an assertion that by the afternoon of August 18, 1983, deportment in the cour troom had indeed "got ten out of hand."
(Applicants' Answer, pages 9,
30.)
It is apparent from the record and pleadings filed that neither SAPL, the Mass A.
G.,
NRC Staff, nor the municipal representatives from the Town of Rye agree with the Applicants' characterization of behavior in the proceedings to the point of the sidebar conference.
For example, At tor ney Backus, counsel f or SAPL, stated that:,
4 "Ma'am, I
respectfully disagree with the Chair's characterization of the conduct of counsel in this proceeding.
I think counsel has been at all times considerate and polite.
(Sidebar Conference, T_r.
8.)
Counsel for Mass A.G. has madc similar observations with respect to its review of the record.
(See Memorandum in Suppor t of Mass A.G. 's Motion for Disqualification of Judge Hoyt, page 33.)
Also supporting SAPL's position in this regard is the formal objection filed by the " representatives for the Town of Rye with respect to Judge Hoyt's dismissal of Mr. Guy Chichester f rom f urther participation in the proceedings.
...f rom our conversations wi th several resident s and non-resi4nts of Rye, who v'e r e in attendance during these sessions giving rise to this inci ant, we are hard pressed to find any conduct on the part of Mr. Chichester that would warrant such a
severe action' as dismissal."
(Objection of Representatives for the Town of Rye, filed September 26, 1983.)
Finally, it is important to note that even Staff Counsel, who are on record as opposing SAPL's Motion, stated on the record at the Sidebar Conference that "I don't believe this situation has really been that bad."
(Sidebar Conference, Tr. at 12.)
It is clear from the record that the only parties agreeing with Judge Hoyt's dubious view of the attorneys' conduct are the Applicants.
Virtually all other parties that have entered statements on the record with respect to general conduct in the proceedings clearly indicate that "all trappings of civilized behavior" had not erroded to any extent.
A further examination of the f ew record citations stated as supportive of -Applicants characterization reveals they are both weak and unsupportive. The A'pplicants are unable to provide a single ref erence to any point in the proceeding where counsel for intervenors or the municipal representative engaged in a
" challenge to judicial 4
authority".
What those parties did do is to note objections to adverse rulings by the Judge in a manner entirely consistent with dignified, professional courtroom behavior.
The record speaks for itself'.
1II.
03NTEXT OF STATEMENTS (A
The Applicants also make much of the " context" in which Judge s
doyt's actons were taken.
SAPL would like to address this issue of context specifically with ' regard to Judge Hoyt's reading of x,
confidential cross-examination plans.
On October'26, 1983 Attorney General Billotti filed a Motion for Correction of Transcript, a portion of which reads:
"Page 1063, Line 17 -- Line should be corrected to read
'I believe we're into adverse weather effects....'"
This change points out the true context of the Judge's revelation
' of LAttor ney Shotwell's Cross Examination Plan.
There was every-iridica t ion t ha t Judge licy t intended to describe the plan in f ar more detail than her reference to " adverse weather effect".. That would
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certainly have occurred had Attorney Shotwell not objected quickly x
to prevent damage to her cross examination.
The context of Judge Hoyt 's improper conduct is therefore distorted by the Applicants and Staff.
Further with respect to this
- incident, Staff Counsel characterizes Attorney Shotwell's objection as " yelling".
(The i'
S t a f f 's fles pons e, page 10. ) SAPL respect fully disagrees with Staf f's characterization of Attorney Shotwell's objection based on its own observations and conversations with other persons present at the hearing. It is our position that Ms. Shotwell's objection was stated,
1
I in a manner consi stent wl th proper Courtroom behavior under the circumstances.
SAPL again points out the Judge Hoyt's continued demands for an apology f rom Massachuset t s counsel for the substance of her objection were made after time for recess and reflection on the Judge's par t. Thus, this action harcly f alls within the wide " margin of error" Applicants assert is app opriate f or situations where the Judge must respond quckly without the benefit of time for reflection.
(Applicants' Answer at 9. Tr. 1089.)
It is significant that Attorney Shotwell willingly apologized for the tone of her objection, if it was in fact offensive to the T
Board.
(Tr. 1080.)
Judge Hoyt's decision to "welcome counsel back to the proceedings" absent an apology for the substance of the objection amounts to an admission by,the Judge that her " contempt" sanction was indeedextremeandW{thout legal basis.
(Tr. 1090.)
The Judge's ruling on the record.also runs' contrary to Applicants' assertion that the " phraseology" of the objection warranted " swift judicial reaction".
( Appl i ca n t's '. pnswer,
page 16.)
Attorney Shotwell's " phraseology" went direct'ly to the substance of the objection, and reflects no challenge to the Board's authority whatsoever.
(Tr. 1063.)
IV.
STANDING Both the Applicants and Staff assert that SAPL has no standing to base its disqualificaton motion upon prejudical events ef f ecting other intervenors and municipal repr'esenta:ives.
As support for s
'their position, both parties cite the Appeal Board Decision in Puget
-Sound Power and Light Company (Skagit Nuclear Power Project, Units.
4 m moi a
1 and 2)',
ALAB-5 5 6, 10 NitC 3 0, 32, 33 (1979).
In Puget Sound the AppealLBoard ruled that "For a party to have standing to move for disqualification of a Board Member, an invasion of its rights must
'be present."
Puget Sound, infra, 30.
First, SAPL includes as a basis for its Motion Judge Hoyt's treatment of SAPL's counsel.
(SAPL's Motion, 12 g sic.)
More importanly, SAPL had premised its entire Motion on the Judge's prejudical conduct with respect to intervenors and municipal representatives as a class.
(See SAPL's Motion, pages 24-25.)
It is established precedent within this Agency that demonstrated appearances of bias against Intervenors as a group are grounds for disqualification.
In the matter of Commonwealth Edison Co., (Zion Station), ALAB-226, 8 AEC 381 (September 5,
1974).
Although the Commmonwealth Edison Board denied the Motion based on the fact that no bias claims were raised prior to the Licensing Board's Final Order, it did make the valid point that:
"Whenever a non-obj ective tribunal sets f oot on the stage, immediate prjudice results to all who are involved in the proceeding."
Commmonwealth Edison, infra. at 382.
This holding is entirely consistent with SAPL's position in its Motion.
To the extent that Judge Hoyt has demonstrated a clear
-appearance of partiality with respect to Intervenor parties generally, SAPL's rights to have this proceeding reflect not only every element of f airness but the very appearance of complete f airness has been violated. Amos Tr eat & Co. v. SEC, (D.C. Ci r 19 7 2 ), 3 0 6 F. 2 d at 260, 267.
Finally, the opposing parties suggest that SAPL's standing to move for a disqualification has somehow been neutralized because 4
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Judge Hoyt's'" Order" of sanction against.. torney Shotwell was not immediately appealed.
The argument is flawed.
SAPL i s not in a position to directly appeal sanctions imposed on other parties, primarily due to resource limitations. To suggest that appellate review is necessary for every unfair, biased action of a judge before recusal is merited is to' ignore the existence, purpose, and function of the recusal statutes-
- and case law.(See the SAPL Motion of applicable legal standards generally.)
Taken to its logical conclusion, the Applicants' arguments suggest no need whatsoever f or any recusal standards since appropriate remedial relief for any biased judicial actions can be obtained through appellate channels.
V.
' TREATMENT OF MUNICIPAL REPRESENTATIVES Both the Appl: cants and Staf f have chosen to defend Judge Hoyt's verbal abuse and attack on the integr ity of municipal representatives.
(Applicants' Answer, pages 16 through 30, Staff's Response, pages
' 21 g seq.')
The opposing parties' explanation for the Judge's threat to eject from the proceedings any municipal representatives lodging further. complaints of improper courtroom behavior is entirely unconvincing.
Both parties argue that the " problem of improper signaling" was merely a product of the municipal representatives' 4
" lack of legal training and f amiliarity with the proceedings."
(See
' Applicants Answer, at 19, Staff's Response at 22, 23.)
Presumably this argument is based on Attorney Dignan's explanation that:
0-.
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- _,. - ~ -
...' f o r t h e - i n f o rma t i'o n o f t h e Boa r d, I do recall shaking
-my-head at that juncture which was when the examination was buing completed, and it was in response to an inquiry which I don' t normally bother to' tell: people, because I am at.the counsel table, f rom my par t ner, Mr. Gad, as to
'whether he should ask a certain question on redirect, to which 1 replied, 'Are you~sure you know what the answer is?--to which he replied he wasn't.
And I said, ' Don't ask it.'
And I shook my head.
That is the facts.
- 1. don't like the accusation."
Tr.-1534.
To suggest that " legal training" i s. required to determine the
~vi sual di f f erence between _ conversat ions among counsel and signaling to a wit' ness is absurd.
As indicated i n the written observations which Representative Roberta Pevear attempted, albeit without successl, to place on the record, she observed that Attorney Dignan's
-co-counsel Mr. Gad _ was not carrying on a conversat ion with Mr. Dignan at the time of the alleged signaling.
(See Mass A.G.'s
- Motion, Exhibit B.)
The Appli6 ants _' Answer to SAPL's Motion unequivocally attacks the integr_ity of the municipal represenatives in this proceeding, and' suggests-that the charges were so " intrinsically incredible" that Judge Hoyt's threats and reptemands were therefore justified.
(Applicants' Answer, page 19, note 14.)
The fact is that all these arguments are of little relevance to.the harsh and unprecedented threats made by Judge Hoyt against
~
municiple representatives.
Tr. 1541.
To threaten that any future charges of courtroom impropriety would bring rapid ejectment is to 1.
The Representative from Hampica Falls, Roberta Pevear attempted to read a memorandum concerning her observations of witness signaling into the record on Tuesday, August 23, 1983.
After reviewing the memorandum, Judge Hoyt refused to allow it in.
The text of the memorandum is at tached to Memorandum in Suppor t of Mass A.G. 's Mot ion for Disqualificaton as Appendix B.
_9 A
prejudge their
- validity, and to serious intimidate the representatives and their rights to receive f air and impartial rulings and t reatment.by~ t he Judge. A further example of behavior indicating Judge lloyt's prejudgement of witness coaching charges is her rul.ng To n the validity of some of those charges even before review of Eny sf fidavits procured and filed by the NRC staf f. Tr. pages 1634 to 1686.
Contrary to the Applicant's assertion, the question here focuses on the appearance of bias to a reasonable person, not its subjective existence in the eyes of a reasonable lawyer.
See Consumer's Power Co.,
(Midland Plant, Units 1 and 2)
ALAB-101, 6 AEC 60, 63 (1973),
United States v. Ritter, infra, and other cases cited above.
VI.
RIGHTS OF CDUNSEL TO ESTABLISH A REASONABLE, ACCURATE RECORD OF THEIR CLIENT'S POSITION:
As stated by'SAPL in its original motion, as well as the recent Mot ion f or Di squali f icat ion filed by Mass A.G., the record is filled with instances where Judge Hoyt has cut' counsel off, prevented statements to be made on the record, and in several cases given instructions-to the reporter not to record statements made.
(Tr.
1681-1682, 1747, 1541-1542, 1686-1687, 1066, Sidebar Conference Tr.
7-8, 1300-1301, 1750, and others.)
One issue presented.here is whether af ter an evidentiary hearing has been ordered, counsel representing Intevenors should be allowed to make reasonable statements on the record bearing directly on mat ters at issue bef ore the Board and directly af f ecting the inter.ests of their clients.
The overriding question is whether Judge Hoyt's conduct throughout these proceedings has created the appearance of partiality to a reasonable person.
Consumer's Power, infra.
The.
latter is' sue supersedes th'e merits of any separate, individual " cut off" or Qrder which might or might not be overturned upon appellate review.
A strong basis for SAPL's Motion is the frequency with which Judge hoyt-prevents counsel for Intervenors~from noting objections in the record.
Another basis.is that on more than one occasion, Judge Hoyt instructed the reporter not. to record statements made by Intervenor counse..
Notwithstanding the Applicants' and Staff's attempts' to justify Judge Hoyt's actions SAPL maintains that such responses establish a clear appearance of bias.
First, we again point out the incident with Mr. Jordan.
(Tr.
908.)
Applicants and Staff assert that Judge Hoyt was right in cutting Mr. Jordan off because he was somehow seeking relief which was beyond the jurisdiction and control of the Board.
(Applicants' Answer, page 33, Staff's Response, page 28.)
The context in which Mr. Jordan made reference to his client's resource limitations is plain on the record.
Mr. Jordan was not interested in a " debate" over Intervenor f unding, nor was he engt ged in " criticisms of the legal system" on matters " simply beyond the issue at hand".
(Applicants' Answer at 33.)
What Mr. Jordan was doing was arguing in f avor of a more extended schedule'for litigation of some arduous ard complex issues.
He simply stated that: _
"Anything else this complex would take considerably longer than this, even the schedule I have proposed.
Even.vith
. fully funded parties."
Tr. 907 His arguments were directed at scheduling, not funding.
He stated as a matter of accepted fact the lack of funding faced by Intervenor parties, and suggested it be taken into consideration in establishing a schedule appropriate f or adoption in the proceeding.
Neither the Applicants nor Staff are able to justify Judge Hoyt's continued refusal to allow Mr. Jordan to speak, even when he merely requested a clarification as to the Board's position.
(Tr. 908.)
With regard to the objecting parties' justification of Judge Hoyt's attack on Mr. Bisbee, SAPL suggests that a mere rcading of the record serves to point out that Judge Hoyt's comments were not as reasonable or innocent as opposing parties suggest.
(Tr. 923.
See SAPL's Motion, page 22, Tr. 923.)
Both the Applicants and Staf f also come to the def ense of Judge iloy t 's ref usal to allcw Mr. Backus ' obj eet ions. The primary argument fostered by the Applicants is that Mr. Backus was not making an objection, but rather was engaged in " speech making".
(Applicants' Answer, at 22.)
As supor t for this conclusion they cite Mr. Backus' Af fidavit to the ef f ect tha t he was "not making accusat ions".
(Id.),
Citing Backus Aff. at paragraph 4.
Applicants argue that because Mr. Backus was making a " speech" or at least " oral argument", Chairman Hoyt had every reason to prevent his statements f rom being recorded.
Id.
In response SAPL states first that Mr.
Backus' comments constituted a legal, timely and wholly proper objection to the manner in which Judge lloyt had prejudged the accusations made by Ms. Randall.
1 12-
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br e
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It is a reasonable and well established legal principal that attorneys have an ethical obligation to zealously represent tne interests of their clients. Moreover, cour t s have held t ha t at torneys have the right to an opportunity to present their theory of the case on any' occasion where.'in their-j udgment, the exigency of the pending point. requires or l justifies it.
A Judge's power to silence an at torney - does not begin until such reasonable opportunity for appropriate obj ection or other indicated advocacy has been af f orded.
State vs. Pokini, 521 P.2d 668 (1974).
It is entirely proper for a lawyer to seek respectfully to impres's upon a court, even though the cour t may not wish to hear him at that time, an objection or other contention which he deems necessary to the interests of his client, since it is the lawyers duty to at all t imes protect and advance the client's interests.
Hooper v.
Superior Cour t of Los Angeles County, 359 P.2d a t 27 4 (19 61), People
- v. Kurtz, l '4 2 N. W. 2d 594 (1971).
The Applicants repeatedly cite the f act that Mr. Backus did not sit down when initially ordered to by Judge Hoyt.
Mr. Backus' decision to remain standing was, in fact, an expression of his complete respect for courtroom procedure as it is well accepted that at torneys should stand while voicing objections.
Judge Hoyt's order for Mr. Backus to. sit down was, therefore, an order to cease the making of a proper objection. Ex parte Crenshaw, 259 S.W. 587 (1924).
The' Staff argues that Judge Hoyt's handling of the matter was in accord with the Commission's observation that " Petitions of this sort which raise questions about the ethics and reputation of another member of the bar should only be filed after careful research and.
deliberation."- Cinneinnati Gas and Electric Company, (William H.
Zimmer Nuclear Power Station, Unite 1 ), CLI-8 2-3 6,16 NRC 1512,1513 n.1. (1982).
The Zimmer standard does not apply in this instance.
Mr..Backus was not making formal petition for disqualification or even censure of any counsel in these proceedings.
H e wa s ', o n b e h a l f of his client, requesting an opportunity to explore on the record the validity of charges made by other parties. Backus, Af f. Paragraph-L To suggest, as the Applicants do, that " Counsel for SAPL had no basis at. all for his intervention in the first place" is also incorrect:
It was during Mr. Backus' cross-examination that this alleged signaling occurred.
Mr. Backus' insistance in noting his objection 'to the affidavit remedy and Judge Hoyt's apparent
-prejudgment of the matter was a prudent objection to preserve his right s on appeal. Had he not objected to the Judge's def acto dismissal of the charges, he would certainly have waived appellate remedies concerning the incident.
The fact of the matter is that at no time did Attorney Backus engage in " speech making", and neither the Applicants nor the Staf f are able to cite a single meaningful example of it.
Any comments made by Mr. Backus went directly to the heart of the matter at hand and constituted an objection.
Virtually all of th'e cases cited by the Applicants for the proposition that there is no_ constitutional right to oral argument in an administrative proceeding are also inapplicable here.
(See cases ci ted in Applicant s ' Answer, page 23.)
F i r s t, mo s t if not all of those cases stand for the proposition that there is no constitutional right to a hearing on each and every issue which comes.
w
.o.
bef ore. Federal admini s t rat ive agencies. That issue has no-relevance
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to this proceeding as an administrative hearing was in f act ordered tc. allow cross-examination of witnesses with respect to issues in this case. What is relevant here is the f act that the charges voiced by Ms. Randall ultimately have potential repercussions concerning SAPL's cross-examination.
Consequently, Mr. Backus' objection was
~directly on point.
Also, this is not a matter-of discretionary " oral argument" as App l i ca n't s a n d S t a f f ' a s s e r t.
(See Applicant's Answer, page 23, and Staff Response, page 24.)
Unlike the situation in Vermont Yankee.
Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI 14, 4 NRC 163, 167-68 (1976), there was no forme.1 motion pending at the time of. the incident in question.
Again, the bottom line issue is not whether, ultimately, Judge H oy t '. s refusal to call the witness back should'be overturned on appe&l. The i ssue is whether, by cut t ing Mr.'Backus of f and preventing his complete-obj ection, the Judge exhibited hostile behavior towards SAPL as an Intervenor party.
The answer is clearly, yes.
The Applicants and Staff refer, wrongly, to the commonality of " speeches" made by Mr. Backus.
It is ' interesting to note that not once during the proceedings did Judge Hoyt cut those counsel off in their noting of objections on the record.
Indeed, as stated in our original motion, the record is entirely devoid of hostile treatment rendered by Judge Hoyt with respect to counsel for either the Staff or the Applicants.
This she reseerved solely for.intervenors, Massachusetts, and the town representatives. t-
1 1.
Finally, SAPL wishes"to respond to the Applicants' support of the' Judge's _ arbi t rary r_ight to order. the reporter not to record statements made by intervenor counsel.
(See Applicants' Answer, page. 24.)
It is interesting ~ to note that tne very case cited by Applicants for the proposition that the transcript "does not require the perpetuation and a type written record of everything that lawyers say".also states flatly that such orders as those given by Judge c
" ~
Hoyt are suf ficient grounds for a showing of bias. NLRB vs. Condenser 5
' Corporation (3rd.Cir. 1942) 128 F.2d 67, 79.
It should be pointed out that the Condenser _ case did not involve a motion to disqualify I
for-bias, bu't rather alleged the Judge's f ailure to meet appropriate due process requirements under the U.S. Constitution.
Id.
- lt is also of relevance'her,e that the Federal Court Reporter Act requires mandatory, verbatim recording of (1) all criminal cases held in open court; (2) all proceedings in'other cases held'in open cour t unless_the parties, with the approval of the Judge, shall agree i
specifically to the contrary; and (3) such cther proceedings as a Judge of the 'Cour t may direct or as may be required by rule or order of court.or as.iay be requested by any party to the proceeding.
28 U.S.C.
liS3-(emphasis added).
'SAPL believes _ that this standard is clearly applicable to proceedings bef o. t this agency, and that it is a reasonable standard designed to preserve the appellate rights of all parties.
As a Federal judicial standard it is no less appropriate for applicaton to ASLB hearings than is the Federal standard 6455(a) for disqualification of judges.
'16-
i It i s SAPL's po s i t ion, t ha t regardless of the verbatim accuracy of the Phase I hearing transcripts'or any prejudice resulting from lack thereof, Judge Hoyt's repeated, at-will orders as to which statements by'intervenor counsel should and should not be recorded exhibits every manner of bias to a reasonable person.
Vi1.
CONCLUSION SAPL maintains its earlier stated position that Judge Hoyt has exhibited the worst appearances of continued and pervasive bias against Jntervenor counsel and municipal represent tives.
Although the Applicants and Staf f have chosen to justify Judge L7yt's actions with respect to individual incidents, the responses tail to address the critical issue in.this case, namely, whether the Judge's conduct has created the appearance of bias to a reasonable person.
This is reflected in the fact that neither response refers to the newspaper articles appended to SAPL's Motion indicating the public's overriding
. perception of continued _ bias on the part of Judge lioyt.
For the reasons stated above, SAPL continues to urg.e that Judge lloyt recuse herself in accordance with the applicable standards in order to further Congressional intent in maintaining the utmost appearances of fairness in these adjudicatory proceedings.
Respectfully submitted, Seacoast Anti-Pollution League By its attorneys, BACKUS, SHEA & MEYER By:
[
-pf[
fotA!ir t A.
Ba clfu( '
116 Lowell St.,
Box 516 Manchester, N.H.
03105 Tel:
(603) 668-7272 November 15, 1983 -
. -.