ML20082G594

Corrected Motion for Disqualification of Judge Hoyt. Certificate of Svc Encl

ML20082G594
Person / Time
Site:	Seabrook
Issue date:	11/28/1983
From:	Curran D, Jordan W HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20082G583	List: ML20082G581 ML20082G594
References
NUDOCS 8311300261
Download: ML20082G594 (33)

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November 28, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

Public Service Company of New )

Hampshire, ut al. ) Docket Nos.

) 50-443, -444 (Seabrook Station, Units 1 and 2) )

)

MOTION BY NEW ENGLAND COALITION ON NUCLEAR POLLUTION FOR DISQUALIFICATION OF JUDGE HOYT I. Introduction Pursuant to 10 C.F.R. 5 2.704(c), the New England Coalition on Nuclear Pollution moves that Administrative Law Judge Helen F. Hoyt disqualify herself from presiding over any further proceedings concerning the operating license for the Seabrook nuclear power plant. Judge Hoyt has, through illegal, intemperate and inappropriate conduct toward intervenors and local representatives in the proceeding, demonstrated a personal bias toward those parties. Even if Judge Hoyt considers that she does not feel that bias, her behavior has created an appearance of bias that would lead a reasonable person to question her ability to preside impartially over the operating license proceeding. Therefore, under Commission standards for disqualification, she must recuse herself from further participation in this proceeding.

8311300261 831128 PDR ADOCK 05000443 G PDR

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I Judge Hoyt has displayed biased behavior toward intervenors l

and local representatives in a number of forms, including refusals to allow those parties to place arguments or evidence on the record; inappropriate ex parte contact with a local

, ' governmen t; conduct of an ex parte discussion of substantive matters; and harassing and intimidating conduct toward intervenors and local representatives. The effect of Judge Hoyt's improper behavior has been to create an atmosphere and an expectation of. unfairness that pervades this entire proceeding. Regardless of Judge Hoyt's personal feelings or l

motivation with regard to NECNP and other intervenors, she must

. recuse herself in order to maintain the appearance of fairness that is essential to any administrative proceeding.

NECNP does not bring these charges lightly against Judge Hoyt. We are well aware of the discretion which the Commission invests in the Licensing Board to carry out its weighty responsibilities. We find, however, that Judge Hoyt has overstepped the bounds of that discretion so often and so egregiously that she has destroyed any semblance of fairness in this proceeding. Having created an appearance of unfairness and impropriety, it is Judge Hoyt's duty voluntarily to recuse herself from the proceeding. Commonwealth Edison Co . (LaSalle County Nuclear Power Station, Units 1 and 2), CLI-73-8, 6 AEC 169, 170 n. 4 (concurring remarks of Commissioner Ramey)

II. Standard for Recusal The Administrative Procedure Act, which governs NRC

i' -i licensing proceedings pursuant to 42 U.S.C. 5 2231, sets a broad standard for disqualification. An administrative law judge may be recused On the filing in good f aith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating employee . . .

5 U.S.C. S 556(b) (emphasis added) The standard for judicial conduct is especially high for administrative proceedings, "where many of the safeguards which have been thrown around court proceedings have, in the interest of expedition and a supposed administrative efficiency been relaxed." National Labor Relations Board v Phelps, 136 F.2d 562, 563 (5th Cir.

1943)

In Consumers Power Co. (Midland Plant, Units 1 and 2),

ALAB-101, 6 AEC 60, 65 (1973), the Appeal Board summarized the types of judicial conduct, derived from federal case law, that would call for disqualification under the Administrative Procedure Act: l

[A]n administrative trier of fact is subject to disqualification if he has a direct, personal, substantial pecuniary interest in a result; if he has a " personal bias" against a participant; if he has served in a prosecutive or investigative role with regard to the same facts as are in issue; if he has prejudged f actual -- as distinguished from legal or policy -- issues; or if he has engaged in conduct which gives the appearance of personal bias or prejudgment of factual issues.

The Appeal Board emphasized the importance of the criterion of appearance of prejudgment or bias, noting that:

[ Aln administrative hearing * *

• must be attended not only with every element of fairness but with the very appearance of complete fairness. Only thus can the tribunal conducting a quasi-adjudicatory proceeding meet the basic requirement of due process.

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Id. at 65, quoting Amos Treat & Co. v. S.E.C., 306 F.2d 260, 267 (D.C. Cir. 1962) Thus,'an administrative judge may be disqualified forlthe appearance of prejudice, even where actual bias or prejudgment cannot be shown.

In its most recent disqualification decision, Houston Light and Power (South Texas Project, Units 1 and 2), CLI-82-9,15 NRC 1363, 1366 (1982), the Commission also invoked the statutory standard for disqualification of federal judges, 28

.U.S.C. S 455(a). Under that provision, Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

This provision was established by Congress in 1973 to promote the public's confidence in the impartiality and integrity of the judicial process by saying, in

effect, that if any reasonable factual basis for l doubting the judge's impartiality shall exist, the l judge "shall" disqualify himself and let another judge

preside.

i Potashnick v. Port City Construction Co. , 609 F .2d 1101,1111 l

l (5th Cir. 1980 ), citing 1974 U.S. Code Cong. & Admin. News. pp.

l l 6351, 6354-5 (judge involved in business dealings with plaintiff's attorney required to recuse himself) Section 455(a) replaced a former standard based upon a judge's

" introspective estimate of his own ability impartially to hear l

l a case" with an " objective" standard. Roberts v. Bailar, 625 F.2d 125, 129 (6th Cir. 1980) (judge's remarks on character of l

defendant required recusal "in order to preserve the indispensable semblance of fairness." 625 F.2d at 130.)

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In South Texas, the Commission stopped short of applying

'the substantive disqualification standard, however, on the ground that the conduct complained of was made "in the context of an adjudicatory hearing and was based solely on events which occurred during the proceeding, i.e., [the intervenor's] action-i' .and behavior during the proceeding." Id. at 13 66. In so ruling, the Commission applied a judicial gloss that has no support in the language of the statute or the legislative history. As the First Circuit has recognized, S 455(a) permits disqualification of judges even if alleged prejudice is a result of judicially acquired information, in contradistinction to the prior law that required a. judge to hear a case unless he had developed preconceptions by means of extrajudicial sources.

United States v. Cepeda Penes, 577 F.2d 754, 758 (1st Cir.

. 1978) Thus, judges have been disqualified for courtroom conduct without-regard to whether or not the conduct was "extrajudicial". See, e.g. Webbe v. McGhie Land Title Co., 549 LF.2d 1358 10th Cir. 1977) (judge recused from rehearing for courtroom remark on his view of defendant's position); Roberts

v. Bailar, supra, 625 F.2d 125.1 i

l I Moreover, the Commission strains the meaning of the j " extra-judicial" qualification that has been put on S 455(a) by o the federal. courts. The limitation to extra-judicial bias is l' intended'to distinguish between legitimate remarks or actions l by the court regarding the merits of a case and improper

. behavior resulting from personal prejudice. The requirement i that prejudice be " extra-judicial" thus goes to the source of the bias, not the location of the biased conduct. As the Third Circuit-defined it, extrajudicial bias is (footnote continued next page)

I i l The Commission recognized, however, that the courts have established an exception to the extra-judicial conduct requirement for " judicial conduct demonstrating such pervasive bias and prejudice as would constitute bias against a party."

15 NRC at 1366. See, e.g., U.S. v. Holland, 655 F.2d 44, 47 (5th Cir. 1981) (judge disqualified where remarks to defendant would lead reasonable person to question judge's impartiality).

The Administrative Procedure Act and the statutory standard for disqualification of federal judges thus require disqualification of a judge for the appearance of bias.

Although the NRC has adopted a doctrine requiring that bias to be extrajudicial in nature, it has recognized an exception for biased conduct that pervades a proceeding.

Even under the narrow standard for disqualification adopted by the Commission, Judge Hoyt must disqualify herself from this proceeding. Judge Hoyt's conduct has gone f ar beyond the

" stares, glares and scowls" and " occasional outbursts toward (footnote continued from previous page) bias that is not derived from the evidence or conduct of the parties that the judge observes in the course of the proceeding.

Johnson v. Trueblood, 629 F.2d 287, 291 (3rd Cir. 1980. For

example, in Phillips v. Joint Legislative Committee, 637 F.2d

! 1014, 1020 (5 th Cir. 19 81) , the court looked to the nature of l the comments alleged as basis for disqualification, not to the location where the comments were made.

Thus the court distinguished between " gratuitous insults" made in the courtroom, demonstrating " overt hostility or the like,"

l which constitute grounds for recusal, and " final conclusions or l immediate reactions on points of fact or law in the case,"

which are not a basis for recusal.

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i i counsel during a long trial" that the Commission ruled insufficient to require recusal in South Texas 15 NEC at 1366.

Her improper conduct has been as severe as it is varied, including obstruction of the record, illegal ejc parte contacts, and attempts to intimidate intervenors and local r epr esentatives. Judge Hoyt's biased conduct has pervaded the Seabrook licensing proceeding, sparing virtually no intervenor or local representative. Her actions have left an impression upon NECNP and many members of the public (see newspaper articles, attached as Exhibit 1) , that she is determined to issue an operating license-without regard to the interests of the public that she is assigned to protect. In such a pervasive atmosphere of bias.against intervenors, no intervenor or other member of the public can be confident that Seabrook will receive a fair and impartial licensing decision from a panel led by Judge Hoyt.

III. Prejudice to NECNP Not only has NECNP been prejudiced by the pervasive atmosphere of bias created by Judge Hoyt, but her improper actions have directly affected NECNP's ability to participate effectively in the Seabrook licensing hearings by preventing NECNP from making objections or arguments on the record; by refusing to take evidence offered by local representatives that witnesses for Staff and Applicants were being coached during cross-examination on NECNP's contentions; and by attempting to intimidate other parties who share NECNP's interest in a full

I i and fair hearing that will assure the safe operation of the Seabrook plant. 2_

IV . Factual Basis for Recusal A. Blockage and Manipulation of the Record On numerous occasions, Judge Hoyt refused to allow counsel for intervenors or local representatives to state their objections and arguments or to place relevant factual information on the record. Moreover, the Board attempted to intimidate local representatives from raising certain relevant issues, and forbade them from bringing them up during the hearing on penalty of being ejected from the hearing. Finally, Judge Hoyt manipulated the record by ordering that statements not be recorded by the court reporter; and by issuing a post hoc order stating that an event had occurred during a hearing session that had never occurred at all. Judge Hoyt thus l prevented or circumvented the right of NECNP and other intervenors to preserve their objections and place evidence on j the record, or to have the events of the hearing accurately 2 I n her order of November 2, 1983, denying SAPL's motion for disqualification, Judge Hoyt cites Puget Sound Power and Light Co. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-556, 10 NRC 30, 32-3 (1979), in support of her conclusion that SAPL had i no standing to move for disqualification based on an invasion of the rights of others. In Puget Sound, however, the moving intervenors gave no indication that they had been injured by the Board's biased conduct toward another party. In contrast, Judge Hoyt's behavior toward other intervenors and representatives affects NECNP's interests in this proceeding, as documented throughout this pleading.

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, preserved for appeal.

LThe following examples demonstrate Judge Hoyt's illegal and improper conduct in preventing the establishment of a complete T

record in this proceeding:

1. At the third prehearing conference in Boston, the Licensing Board entertained comments from the parties on the proposed schedules for the emergency planning proceedings.

NECNP had submitted a schedule calling for a lengthier proceeding than that envisioned by the NRC Staff, and William S. Jordan, counsel for NECNP, attempted to identify the factors that made NECNP's plan different from the Staff's. When Mr.

Jordan identified as one of those factors'the lack of

'intervenor resources, including the Commission's decision not to. fund intervenors, the Judge silenced Mr. Jordan and refused to allow him either to clarify his own remark or to obtain clarification from the Board as to what part of his statement was objectionable.

( MR. JORDAN, continuing): I would remind the l Board as well that if we take into account reality and

! we take into account the fact that the various ,

2 Intervenors, including the towns, do not have the resources to be on this every day. The fact is that a hearing schedule of this sort is virtually unprecedented in any other sort of arena. Anything else this complex would take considerably longer than

! this, even the schedule I have proposed. Even with fully-funded parties, r That is not the case here, and it seems to me that while certainly it is clear that the Intervenors are not provided -- in f act, because Intervenors are not allowed to have support from the Commission, the Commission must take into account --

JUDGE HOYT: Mr. Jordan, I am going to stop you

$ l right at that point. I am not going to entertain on behalf of this Board any arguments of that nature, and I am going to only caution you the one time.

You know that this Board has no control over those matters, and-indeed, this Commission does not.

MR. JORDAN: I don' t think I was at all suggesting that this Board --

JUDGE HOYT: I merely caution you the one time, sir. I suggest that you move along.

MR. JORDAN: I would be glad to, if I am clear --

JUDGE HOYT: Just move along, sir.

MR. JORDAN: I am sorry, I didn' t understand what you said to me, Your Honor. I attemptedEto ask you for a clarification and I was denied that opportunity. I think I am finished. Thank you.

JUDGE HOYT: Counsel, I am not going to warn you again.

Is that all you have on your plan?

MR. JORDAN: Yes ma'am.

JUDGE HOYT: Thank you.

Prehearing Conference, April 8,1982, Tr. at 907-908.

Apparently, Judge Hoyt perceived that Mr. Jordan was making a request for funding. As the transcript reveals, this perception was not correct. Mr. Jordan was merely citing the lack of financial support for impecunious intervenors as a factor affecting their ability to meet the Board's tight hearing schedule.3 This was a legitimate issue, directly relevant to the Board's request for the parties' views on what 3The transcript also refutes Applicants' claim that Mr. l Jordan was making a " critique of the Commission's policy on intervenor funding." See Applicants' Response to SAPL's Motion j for Disqualification of Judge Hoyt, October 24, 1983.

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the hearing schedule should be.

By refusing to allow Mr. Jordan to complete his argument, the Board prevented him from fully stating the reasons supporting his position on the time needed to conduct a full and fair licensing proceeding for Seabrook. The Board thus not only limited the record to be considered in its own scheduling determination, but prevented the completion of a record for appeal.

2. During cross-examination of Applicants' witness on NECNP Contention III.12/13 by Jo Ann Shotwell, counsel for the Commonwealth of Massachusetts, Judge Hoyt read from a portion of the Commonwealth's cross-examination plan, which had been submitted to the Board in confidence. Ms. Shotwell objected strenuously to Judge Hoyt's action. Tr. at 1063. When Judge Hoyt demanded an apology for the substance as well as the tone of the objection, Ms. Shotwell refused to withdraw the substance of the objection. The Board then ruled that she would "not be able to continue to participate" in the proceeding. Tr . a t 10 66. When Ms. Shotwell attempted to s tate completely her objection to this ruling, Judge Hoyt countered loudly, so as to prevent Ms. Shotwell's remarks from being heard and recorded by the court reporter:

MS . SH OT WE LL: We will be taking an interlocutory appeal to that decision.

JUDGE HOYT: You may take whatever is lawful to provide --

MS. SHOTWELL: The record will reflect --

? i JUDGE HOYT: The record will not reflect -- the

-record will not reflect -- counsel will not participate any further if they do not wish to.

Tr . at 10 65-10 66.4

3. During the hearing on August 19, 1983, local representatives Guy Chichester of Rye, New Hampshire, and Roberta Pevear of Hampton Falls, New Hampshire, informed the Board that they had observed signalling of witnesses by counsel for Applicants during cross-examination by counsel for NECNP on NECNP contention III.l. Tr. at 1512 - 13. After listening to statements oy counsel for Applicants and NRC Staff counsel and questioning Applicants' witnesses, Judge Hoyt lectured Mr.

Chichester on the seriousness of his allegations, and told him that she questioned his ability to represent the town of Rye.

Tr . at 15 39. Finally, Judge Hoyt forbade Mr. Chichester from raising the issue again, informing him that "the Town of Rye i will remain in this case just so long as that sort of l accusation is the first, last and only one you will make on l

this record." Tr . a t 1541.

l 4During this discussion, the court bailiff approached Ms.

l Shotwell and stood on the opposite side of the counsel table l until she left the room.

l The Board later cured its error by allowing Ms. Shotwell to reenter-the proceeding after she apologized for the tone of the objection. However, the instance exemplifies Judge Hoyt's numerous efforts to manipulate the record by directing the court reporter not to record remarks by intervenors; by speaking loudly above the voices of the parties so that their l remarks would not be heard by the court reporter; or by attempting to intimidate parties into withdrawing their objections from the record.

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Mr..Chichester was not permitted to respond to Judge Hoyt's r uling. . Tr. at 1541-42.

Judge Hoyt's order forbidding Mr. Chichester ever again to raise observations he might make of signalling to witnesses by

. counsel was an extraordinary sanction without legal basis.

Such observations would be highly relevant to the fairness of the e' tire proceeding. The Board-had the opportunity to take evidence from the parties and rule on the merits of the allegations. This would have been an adequate response to the charges.5 Instead, Judge Hoyt took the unnecessary, unfair, and highly intimidating step of threatening to remove local representatives who brought up the issue again. See Tr. at 1541, 1750.

The Board's ruling that the local representatives must never again report to the Board any observations of witness coaching also directly prejudiced NECNP, whose contentions constituted the major subject matter being litigated in the August hearings. Again, Judge Hoyt attempted to manipulate the record by forbidding the placement on the record of information 5 In f act, Judge-Hoyt rejected a motion by SAPL for an evidentiary hearing on the subject Tr. at 1685. NECNP would have supported this motion but was not given an opportunity to speak. See discussion at l5, infra.

NECNP has not taken a position on the question of whether signalling to witnesses took place, since counsel for NECNP was seated throughout the hearing with her back to counsel for Applicants and Staff. However, we don't believe the Board permitted the establishment of an adequate record to support its determination that no such signalling took place.

? s' that could be relevant to the fairness of NECNP's opportunity to litigate its contentions.

4. On August 23, Hampton Falls representative Roberta Pevear attempted to introduce a statement regarding her observations of witness coaching on August 19. Judge Hoyt remarked that the information in her statement was the same as she had presented the day before. When Ms. Pevear noted that the last paragraph of her memorandum contained new information, Judge Hoyt nevertheless refused to allow her to speak. Tr. at 1681 - 82.6 Thus, Ms. Pevear was prevented from placing on the record factual information relevant to the issue of whether NECNP had been given a full and f air opportunity to litigate Contention III.l. Not only was NECNP deprived of a fair examination of the issue at the hearing level, but the Board's ruling resulted in an incomplete record for purposes of appeal.

! 5. On August 23, local representatives from South Hampton and Kensington, New Hampshire, reported to the Board that they had observed signalling of witnesses by counsel for Applicants t

l and Staff. Tr. at 1680, 1683. After taking statements from Applicant and Staff counsel and witnesses (excluding an absent l

l NRC witness, who was directed through NRC Staff counsel to l

6Later, ME Pevear made another attempt to correct Judge Hoyt's account of her previous observations. Judge Hoyt refused to allow her to speak, and directed the court reporter not to record her remarks. Tr. at 1747.

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produce an affidavit), Judge Hoyt reprimanded the representatives in scathing language, and threatened to remove them from the proceeding if they raised the issue again. (See discussion at 23-24, infra.)

6. Having .f orbidden local representatives from raising the issue of witness signalling again, Judge Hoyt gave the NRC Staff an additional opportunity to address the matter. At a meeting with the Massachusetts Civil Defense Director on August 31, Judge Hoyt allowed Roy Lessy, counsel to the NRC Staff, to testify and make arguments concerning the witness coaching allegations, in addition to the statements he had already made

~during the hearing. Tr. of August 31 meeting at 1681-87.

Thus, although Judge Hoyt had foreclosed any further discussion by intervenors and local representatives, she did not apply this order equally to all parties.

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7. When counsel for NECNP and SAPL attempted to object to the Board's handling of the allegations of witness coaching, they were prevented by Judge Hoyt from speaking, and the Judge directed the court reporter not to record their remarks.

MR. BACKUS: With your indulgence, ma'am.

JUDGE HOYT: No sir, Mr. Backus. Please be seated, l

sir.

MR. BACKUS: I would like to state on the record, Madam -

JUDGE HOYT: Mr. Backus, be seated, sir.

MR. BACKUS: Madam, I would just -

JUDGE HOYT: Sir, I have asked you please to be seated.

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I s' MR. BACKUS: I would like to make one more statement on the record.

JUDGE HOYT: Sir, please be seated. The record will not reflect any additional statements by you. I request sir, kindly, that you please be seated.

Ms. Curran, please be seated.

MR. BACKUS: I suggest error in that ruling to -

MS. CURRAN: I have something to add.

JUDGE HOYT: No, ma'am. You will not add anything to this record. The reporter is directed that these remarks will not be recorded. . You will please be seated.

Tr . a t 1686-8 7. During this discussion, court bailiffs approached Ms. Curran and: Mr. Backus and stood on the opposite side of the counsel table from them until they sat down.

The objection NECNP had attempted to state was that the Board had not fully permitted the local representatives to

! place their_ observations upon the record. NECNP would further r

have requested an evidentiary hearing on the-question of whether witnesses were coached during cross-examination on NECNP 's contentions. If the alleged coaching had occurred, it could have seriously prejudiced NECNP's ability to conduct effective cross-examination, and thus its right to a full and L fair hearing on the issues.

By preventing intervenors from objecting to Board rulings, Judge Hoyt obstructed the parties' essential right to state their objections to her decisions and thereby preserve the issues for appeal. Thus, NECNP and other intervenors and local i representatives were deprived of their fundamental right to

I make objections and "present an effective presentation" in the proceeding. Appalachian Powers Co. v. EP A, 477 F .2d 495, 502-3 (4th Cir. 1973)

B. - Ex Parte Contact with Local Government On August 29, 1983, by telephone, Judge Hoyt contacted Mr.

J.P Nadeau, Chairman of the Rye, New Hampshire, Board of Selectmen. This conference was unrecorded, and no other party was included in the discussion.

There is no record of the discussion that took place. It is apparent from correspondence between Judge Hoyt and the Town of Rye (letters from Rye Selectmen to Judge Hoyt of August 31, 1983, and September 26, 1983, attached as Exhibits 2 and 3, respectively), that Judge Hoyt called to complain about the behavior during the hearings of Guy Chichester, the town's official. representative in the licensing proceedings, and to j suggest that Rye replace him. As a result of the conversation, the Board of Selectmen later wrote to Judge Hoyt, extending an apology for any " breach of decorum" by its representative, and withdrawing a recusal motion submitted by Mr. Chichester on Rye's behalf. (Letter from Rye Selectman to Judge Hoyt, dated j August 31, 1983, Exhibit 2) i i The August 31 letter from the Rye selectmen leaves the impression that this wholly improper contact served to intimidate the town of Rye into disciplining its representative and withdrawing a substantive pleading that might have had an adverse effect on Judge Hoyt's continued participation in the L

> 'l proceeding.

Equally disturbing is Judge Hoyt's later representation, in an order of September 8, that she had dismissed Mr. Chichester from the licensing proceeding on August 26. (attached as Exhibit 4). The transcript of the August 26 hearing shows only that Judge Hoyt ordered Mr. Chichester to remove himself from the hearing room.7 This does not amount to a dismissal from the proceeding. And, according to the Rye Board of Selectmen, Mr. Chichester's dismissal from the proceeding was never

, conveyed to Mr. Nadeau in the telephone conversation of August

29. Letter from Rye Selectmen to Judge Hoyt, dated September 26, 1983, attached as Exhibit 3) These circumstances create the appearance that in the telephone conversation of August 26, l Judge Hoyt attempted to persuade the Rye Board of Selectmen to remove Mr. Chichester as their representative in the licensing proceeding. When that attempt failed, Judge Hoyt made an unsupported, post hoc announcement that she had removed Mr.

Chichester from the proceeding earlier.8 7 Judge Hoyt's exact language was:

The representative of the town of Rye will remove himself from this hearing room. We have put up with enough behavior from you, sir.

Tr . a t 1810 .

8 The date of Mr. Chichester's dismissal from the hearings is crucial to a determination of the unfairness and impropriety of Judge Hoyt's jg( parte conversation with l Rye Selectman Nadeau. Had Mr. Chichester already been

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The question of Judge Hoyt's actual motivation in taking-this strange action is irrelevant. It is the appearance of impropriety and unfairness created by her acts that requires her to recuse herself from this proceeding. A reasonable i

person, viewing these circumstances, would not believe that the public is receiving fair treatment in this proceeding.

C. Ex Parte Discussion On August 23, 1983, counsel for NECNP received a telegram notice that the Licensing Board intended to hold a meeting with the Director of the Massachusetts Civil Defense Agency on l

August 31, 1983. The stated purpose of the meeting was to:

discuss the status of the emergency plans for Massachusetts and the Massachusetts towns, in order to l

give the Board an idea as to the timing of the remainder of the proceedings.

NECNP had also been informed by David Lewis, Law Clerk to the 1.

l Board, that the~ Board would be-discussing the timing of the submission of the Massachusetts plans, and would not be discussing matters substantively affecting NECNP in the

! proceeding. With the understanding that the meeting was for l

information gathering purposes only, NECNP decided not to attend.

(footnote continued from previous page) dismissed, Judge Hoyt's ex parte contact might have been excused as a reasonable attempt to determine how the town of l Rye wished to proceed. Absent a ruling of dismissal, however, the contact was not only improper for its ex parte nature, but because the Judge circumvented the officiaT representative of the town, Mr. Chichester, to conduct a substantive discussion with the party he represented regarding his own representation. This behavior is inexcusable.

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.i The meeting, - however, ,was not restricted to its stated purpose.. After being briefed by the Massachusetts Civil Defense Director on the timing of the Massachusetts emergency planning submissions, Judge Hoyt sought " suggestions" from 9

counsel present at the meeting regarding the " effectiveness" of cutting the schedule for filing contentions and discovery which had been set by an earlier order. Tr. at 1837-38. The Board then entertained arguments by counsel, including recommendations by counsel for the Applicants of " slashing down" the periods for filing contentions and interrogatories, and placing no time constraints other than those imposed by NRC rules of practice on summary disposition motions. Tr. at 1844. Judge Hoyt then announced that "we are going to look at cutting all of the three periods at the very minimum in half,"

noting that "unless counsel can give me some reason here today, I can't see why there is going to be any great difficulty in formulating contentions." Tr . a t 18 45.10 (emphasis added) 9The meeting was attended by counsel for NRC Staf f, Applicants, the State of New Hampshire, the Commonwealth of Massachusetts, and local representative Roberta Pevear of Hampton Falls. Counsel for NECNP and SAPL, and other local representatives were not present.

10L ater, Judge Hoyt stated that she would give all parties an opportunity to brief the scheduling issue. NECNP filed an objection to the Board's ex parte discussion and presented its

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own view that the schedule established by the earlier order is the minimum necessary for effective participation in the proceeding.

(footnote continued next page)

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Judge Hoyt's willingness to entertain arguments by counsel for Applicants on the the issue of whether the alrec3y-tight schedule for filing' pleadings should be cut drastically demonstrates the degree of her bias towards Applicants and against intervenors. Moreover, her announcement that unless anyone could show her otherwise on that day, she was determined to cut the schedule substantially, shows a prejudgment of the issue without regard to the views of other parties who were not present.

At the August 31 meeting, Judge Hoyt also held a conference with attorneys in chambers from which local representatives Roberta Pevear and Guy Chichester were excluded. (See Town of Hampton Falls Opinion in Motion to Disqualify Judge Hoyt, dated November 7, 1983). In an apparent attempt to avoid convening the meeting-with Mr. Chichester present, the Board remained in chambers until Mr. Chichester had left the hearing room, and then commenced the meeting. (See affidavit of Jo Ann Shotwell (footnote continued from previous page)

NECNP also objected that the Board's determination to cut procedural rights in order to adhere to a strict schedule is unnecessary, since the NRC Staff is predicting a fuel loading date of early.1986 (Applicants continue to state that the plant will be completed in late 1984). Therefore, NECNP requected i

that a hearing on the expected plant completion date be l conducted by an independent tribunal. NECNP also asked that, considering the prejudice accrued to it by ~ the ex parte meeting, all-further decisions regarding scheduling of pleadings and hearings on offsite planning be made by the independent tribunal. (NECNP Objection to Improper Board Conduct, Response to Applicants' Position as to Scheduling of Emergency Planning Issues, and Request for Hearing on Licensing Schedule, filed October 6,1983)

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in support of Attorney General Francis X. Belloti's Motion for Disqualification and Recusal of Judge Helen F. Hoyt, dated October 28, 1983.) At that time, Judge Hoyt had made no written or oral statement that Mr. Chichester was officially dismissed from the licensing proceeding. Thus, there was no .

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basis for the prejudicial treatment of either Ms. Pevear or Mr.

Chichester by Judge Hoyt.

i Judge Hoyt's mistreatment of the local representatives in 1

this instance also prejudiced the interests of NECNP. NECNP shares many of the same interests and goals in this proceeding '

as the local representatives, namely the assurance that offsite planning provides the best possible protection for the residents of the Seabrook area. As our resources are limited, we depend on the ability of all public representatives to participate freely and effectively in this proceeding for the l -protection of our own interests. In this particular instance, l

NECNP was all the more prejudiced by the Board's entertainment of arguments from Applicants out of the presence of most of the intervenors and local representatives. Thus, the public l

perspective on the scheduling needs regarding offsite planning was poorly represented, and the Board may have formed opinions I at the session that can' t be changed by later opportunities for l

i comment or argument.

C. Attempts to Intimidate Intervenors and Local Representatives Not only did Judge Hoyt attempt to prevent intervenors and l

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local representatives from making a full record in the hearing, but she also severely reprimanded them for doing so, attempting to intimidate-them from raising important issues. This had a chilling effect on the parties' ability to participate freely and' effectively in the proceeding. The following are examples of this . improper conduct:

1. Twice during the hearing local representatives reported

.to the Board that they had observed coaching of witnesses by attorneys for Applicants and Staff. The Board responded by seeking statements from the attorneys; questioning Applicants' witnesses; and asking for an affidavit from the NRC Staff witness, who had left-the' state. The Board refused, however, to allow the local- representatives to completely state their

( views and place relevant information on the record, and then L severely chastised them for having raised the issue at all, threatening to remove them from the proceeding if they raised it-again:

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JUDGE HOYT: Now we have called these witnesses. I want:to explain something-to the town representatives because you ladies are not members of the legal

! profession and you are not in this case as such.

However, when you play baseball, you play by baseball rules. When you play football, you play by football rules. And when you play in this hearing room, or participate in this hearing room -- which is a 'much better way of putting it -- you .will observe the rules of conduct of a legal proceeding. If you

, place yourself in -that role, then your conduct must

! meet the rule in which you have elected to participate.

Now, at expense and certainly at inconvenience because of what you think you may have seen, this Board has compelled the Applicant to call from Concord, Massachusetts a witness who had been here l

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last week. Now I don't expect to have to go through

this ritual with you ladies ever again.

If you have some problem with the attorneys in this case, then I suggest that you contact the bar associations of this state or the bar associations to which counsel may be members. This Board will not tolerate unprofessional conduct, allegations of a juvenile nature to be ever again alleged against the honorable members of the profession that appear in this hearing room, regardless of which side they may be representing, be it the Applicant, be it the counsel for the NRC or the attorney generals of the Commonwealth of Massachusetts or the attorney general of the State of New Hampshire, or to Ms. Curran or to Mr. Backus, who are members of the bars of respectively, I guess, of D.C. , Ms. Curran, and of the state of New Hampshire.

Now I don' t know whether your [ sic] realize the j seriousness with which this Board views your actions, l but I can assure you that if again such frivolous l allegations are made in this hearing room, serious i consideration will be given to the removal of such j representatives from this hearing room.

We'do not wish to impose sanctions upon anyone who represents the town. As a matter of fact, we welcome your participation. But that is the last time  ;

this Board intends to hav e to go through this ritual. j There is only one more matter that needs to be ,

settled, and that is the affidavit from Dr. Urbanik, i because I do not intend to order that witness back )

from Texas to please what appears to be a juvenile i v' whim of the representatives of the towns now before l the hearing. This will end the battle. There will be no further comment.

Ms. Curran, there's no further comment, you may l be seated.

Tr . a t :174 9-5 0. 11 l 2.. Similarly, Judge Hoyt reprimanded Diane Curran, counsel l for NECNP , for attempting to place on the record an order, made

- llsimilarly, Judge Hoyt told Rye representative Guy  !

Chichester that he could remain in the proceeding only so ,

long as he refrained from bringing up the issue of witness  !

2 coaching. Tr. at 1541. Mr. Chichester was later expelled from the proceeding. j l

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in a previous unrecorded discussion, that NECNP would not be )

allowed to send nonlawyer representatives on a site tour with Judge Harbour. Tr . a t 12 97-12 99.12 12L ater, at a side-bar conference from which Judge Hoyt had expelled the public and reporters, the Judge revealed that in berating Ms. Curran for her legitimate remarks, she was chiefly motivated by her own sensitivity to the public's perception of the event.

JUDGE HOYT: Let me ask you this, Ms. Curran: Let me be a little bit fuller. I have never conducted any proceeding off the record.. The implication you lef t before the members of the public that were sitting back there is that something evil had occurred; that some of f-the-record conference had occurred; some meeting that the public was not privy to.

The perception that the public has of what is occurring in this hearing room is what they aee and what they hear out there, not what in fact is sometimes happening. And it is that public perception that I felt keenly aware of when you made the remark earlier today. And that was the reason that it had to be stopped at that point.

MS CURRAN: Your Honor, excuse me. I wasn't interested in affecting the public perception. I was interested in making a record.

JUDGE HOYT: I am, Ms. Curran.

MS. CURRAN: I have one other comment, and that is if the Board wishes to chastise all the Parties, the representatives of the Parties in this proceeding, then I believe it should be done before the public. I do not agree with the Board's procedure of excluding the public from this meeting, and v believe that everything that has happened here should be something that the public should Lave heard.

Side-bar conference, August 18, 1983, Tr . a t 7-8 (emphasis added).

The blocking or discouraging of objections for the personal motive of maintaining appearances in the courtroom is highly improper judicia] conduct. Judge Hoyt's personal fears concerning the appearance of the proceeding have' clearly affected her ability to conduct the proceeding in an open and fair manner.

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'3. .Twice during the hearing, while attorneys for intervenors were attempting to state an objection on the record and the Board refused to recognize them, bailiffs approached the attorneys and stood.before them across the counsel table.13 At no time did the conduct of these attorneys manifest any physical threat or violent conduct that would require the intervention of any bailiffs. Nor were the attorneys asked to leave the room before the bailiffs approached. Their presence and actions served merely to create an atmosphere of intimidation in the courtroom.

D. Hostile and Insensitive Tr eatment of Intervenor Counsel and Local Representatives On numerous occasions during the hearings, Judge Hoyt directed denigrating and sarcastic remarks at intervenor counsel and local representatives. Again, this highly inappropriate conduct demonstrates Judge Hoyt's disregard for maintaining any appearance that she is impartial toward all the parties in the proceeding.

1. When-Dana Bisbee, counsel for New Hampshire, respectfully declined Judge Hoyt's invitation to present local r epr esentatives' cross-examination questions, Judge Hoyt suggested sarcastically that Mr. Bisbee was not adequately 13A bailiff approached Diane Curran, attorney for NECNP, and Robert Backus, attorney for SAPL, when they rose to make an objection to the Board's handling of the allegations-of witness signalling.. A bailiff also approached and stood by Jo Ann Shotwell, attorney for Massachusetts, when she objected to Judge Hoyt's reading from Maasachusetts' cross-examination plan.

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o 4 9 representing the citizens of his state:

i MR. BISBEE: I would like to make one final point. I-don't think you do fully understand -- respectfully

, ma'am -- the relationship of the State of New Hampshire and its representatives and the towns.

JUDGE HOYT: I am certain I don' t, Mr. Bisbee.

MR. BISBEE: There's been reference to advice given to the towns. I am not in a position to offer them advice, under state law. I am bound to give my advice only to state agencies and the legislature of the i state;. therefore, I am really not in a position to offer any advice to the town representatives.

I think, for that reason, it would be inappropriate for me as a representative of the State

, of New Hampshire to be'asking their questions, for

[ which they have their concerns.

JUDGE HOYT: Mr. Bisbee, if-you do not wish to meet the needs of the citizens of your state, that's your problem. It's certainly not the Board's.

Tr . a t .14 31-3 2.

2. At a prehearing conf erence on April 7 and 8,1983, Judge Hoyt suggested that counsel for intervenors were not

! adequately representing their clients' interests because they had usedLonly interrogatories in conducting discovery:

JUDGE HOYT: And I am asking you to tell me how we can sharpen (the' discovery process] up if you have a-mechanism. The only thing I have seen is l

interrogatories. -I have not seen any admissions, I l have not seen any other types of discovery, I have not j seen any persons being deposed and I have not seen anything except the one type.

Now you have locked yourself into this position.

If you want to use other mechanisms,.they are out there to be used and we have all been to law school.

I am suggesting to you, counsel, that it is about time that someone used some of these things that will help us do this record quickly and better. We want to do a good job because we are the public servants that must do it, and you-in-turn must do yours to your client. I don't think.your clients are getting represented as well as they should if they are not 1

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getting that type of input.

Tr. of April 8 prehearing conference at 923 (emphasis added)

3. In response to allegations by local representatives that counsel for Applicants and Staff had coached witnesses, Judge Hoyt referrred to the local representatives as " juvenile" and " frivolous." Tr . a t 17 4 9-5 0. (See discussion at 23-24, supra.)

4. During cross-examination on August 19, Jo Ann shotwell, Assistant Attorney General for the Commonwealth of Massachusetts, made and withdrew an objection. Judge Hoyt responded by ridiculing Ms. Shotwell, stating "I think the record should reflect that at 11:40 we reached a new high."

Tr. at 1411.

5. Over the protests of numerous local representatives and a United States Senator from New Hampshire, the Licensing Board located the third prehearing conference in Boston, Massachusetts, fifty miles from the plant. Judge Hoyt was' aware from these protests of the difficulty that local representatives would have in attending the prehearing conference. Yet, when one representative arrived late and attempted to identify himself and participate in a discussion of the hearing schedule for emergency planning, Judge Hoyt refused to recognize him. Following the lunch break, the Judge allowed Mr. Shivik to identify himself. In f ailing to allow Mr. Shivik to come forward earlier, however, the Board arbitrarily and unnecessarily foreclosed him from participating

$=d in discussions that affected his interests.

Judge Hoyt's verbal attacks on intervenors and local representatives have charged the atmosphere of the Seabrook proceeding with tension, and created the impression that she is unable to view the parties impartially. Regardless of what her personal feelings and motivations must be, her behavior has created an appearance of prejudice toward these parties that taints the entire proceeding.

CONCLUSION As the record demonstrates, Judge Hoyt's improper and unfair conduct toward NECNP and other intervenors and local representatives per..ades this licensing proceeding and raises serious doubts as to the fairness of the hearings. Moreover, regardless of whether Judge Hoyt is actually biased, the appearance of fairness and impartiality has been irreparably

,- shattered by her conduct. She must be recused.

Concurring in the Appeal Board's decision upholding Judge l Hoyt's refusal to' recuse herself on the basis of SApL's disqualification motion, Judge Rosenthal express dismay at the depths to which this proceeding has sunk. Without citing l

examples, he noted that "the majority of the actors on the scene -- representatives of the parties as well as the l

Licensing Board itself -- have indulged in their fair share of untoward commentary." He concluded that it made no difference what conduct was provoked by whom, but that the " bickering"

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f should stop. ALAB-748, November 16, 1983, slip op. at 8-9. ,

We . respectfully disagree with Judge Rosenthal's conclusions.

' NECNP, although. tempted, has been careful not to breach the

' decorum of the courtroom in any respect. We have sought only

.to achieve the full and fair participation in this proceeding to which we are entitled, which included a complete record of our objections and arguments. At all time we have made our F

objections respectfully and impersonally. We believe the same has been true of other intervenors.

The actions on which this motion is based constitute far more than mere bickering on the part of Judge Hoyt. Blockage and manipulation of the record, improper ex parte contacts, and efforts to intimidate parties from rightful and full j participation in this case seriously affect the appearance of fairness. Moreover, by adversely affecting the actions of the parties, particularly those~ local communities who are, as permitted by Commission regulations and practice, not represented by counsel, the Judge's actions may have seriously  ;

affected the record in ways that cannot be readily identified.

Equally important, this. is a proceeding of great significance '

to.the public, and one that attracts great public interest. It must be handled by a judge who is firm, but who is sensitive to

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this forum.

We agree with Judge Rosenthal that the atmosphere of this proceeding has been poisoned. But the poison has not come from NECNP , nor does NECNP believe that it has come from any of the

Ls P intervenors. The source of the poison is arbitrary and unfair treatment by Judge Hoyt, as detailed above. We urge that she disqualify herself from the proceeding, and if she refuses to do so, we urge that she be removed by the Appeal Board.

Respectfully submitted,

^

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Diane Curran l

WJA Jordan, III

)A William .

l HARMON & WEISS l 1725 I Street, N.W.

Suite 506 Washington, D.C. 20006 November 28, 1983 (202) 833-9070 l

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• s CERTIFICATE OF SERVICE h I certify that on November 28, 1983, corrected' copies of

/ Motion by New England Coalition on Nuclear Pollution for

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Disqualification of Judge lloyt were served on the following by first-class mail or as otherwise indicated:

• Helen Hoyt, Esq. , Chairperson Rep. Roberta C. Pevear Atomic Saftey and Licensing Board Drinkwater Road Panel Hampton Falls, NH 03844 U.S. Nuclear. Regulatory Commission Washington, DC 20555

@r. Emmeth A. Luebke Phillip Ahrens, Esq.

Administrative Judge Assistant Attorney General Atomic Saf tey and Licensing Board State House, Station #6 U.S.-Nuclear Regulatory Commission Augusta, ME 04333 Washington, DC 20555

• Dr. Jerry Harbour Robert A. Backus, Esq.

Administrative Judge 111 Lowell Street Atomic Saftey and Licensing Board Manchester, NH 03105 U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Board *

• Thomas G . Dignan, Esq.

Panel R. K. Gad, III, Esq.

U.S. Nuclear Regulatory Commission Ropes and Gray Washington, DC 20555 225 Franklin Street Boston, MA 02110 Atomic Safety and Licensing Appeal Dr. Mauray Tye, President Board Panel Sun Valley Asociation U.S._ Nuclear Regulatory Commission 209 Summer Street Washington, DC 20555 Haverhill, MA 01830 Docketing and Service *Roy P . Lessy, Jr. Esq.

U.S. Nuclear Regulatory Commission William F. Pa tterson, Esq.

Washington, DC 20555 Office of the Executive Legal Director Town Manager's Office U.S. Nuclear Regulatory Town Hall - Friend St. Commission Amesbury, MA 01913 Washington, DC 20555

.Mr. Angie Machiros Anne Verge, Chair Chairman Board of Selectman Board of Selectmen Town Hall Newbury, MA 09150 South Hampton, NH 03842

.m.

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Jo Ann Shotwoll, Ecq. GGorgs DEna Bisbae, Esq.

Assistant Attorney General Edward L. Cross, Jr., Esq.

Department of the Attorney Asst. Atty. Generals General State House Annex 1 Ashburton Place, 19th Floor Concord, NH 03301 Boston,in 02108 John B. Tanzer Letty Hett, Selectman Town of Hampton Town of Brentwood 5 Morningside Drive RFD Dalton Road Hampton, NH 03842 Brentwood, NH 03833 Edwarf F. Meany Sandra Gavutis Town . Rye Town of Kensington 155 W shington Road RFD 1 Rye, .H 03870 East Kensington, NH 03827

• Carole F. Kagan, Esq. Diana P. Sidebotham Atomic Safety and Licensing Board R.F .D .2 U.S. Nuclear Regulatory Commission Pu tney, VT 05346 Washington, DC 20555 Richard E. Sullivan, Mayor Donald E. Chick City Hall Town Manager Newburyport, MA 01950 10 Front Street Exeter, NH. 03833 Alfred V. Sargent, Chairman Brian P. Cassidy, Esq.

Board of Selectmen FEMA Region I Town of Salisbury, MA. 01950 J.W. McCormack Post Office and Courthouse Boston, MA. 02109 Diana P. Randall 70 Collins Street Seabrook, NH. 03874

• )-

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Senator Gordon J. Humphrey Senator Gordon J. Humphrey f' U.S. Senate 1 Pillsbury Street Washington, D.C. 20510 Concord, NH 03301 (Attn: Tom Burack) (Attn: Herb Boynton)

Selectmen of Northampton Calvin A. Canney .

Town of Northampton City Manager New Hampshire 03862 City Hall 126 Daniel Street Portsmouth, NH 03801 Diane Curran

• By Hand

• • By Federal Express

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