ML20087M807

Motion to Quash Applicant Subpoena of Jh Rodriguez.Related Correspondence

ML20087M807
Person / Time
Site:	Hope Creek
Issue date:	03/26/1984
From:	Potter R NEW JERSEY, STATE OF
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20087M808	List: ML20087M807 ML20087M815
References
OL, NUDOCS 8404020017
Download: ML20087M807 (28)

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'84 MAR 30 pn 03 UNITED STATES OF AMERICA 7'r.373,p NUCLEAR REGULATORY COMMISSION ,J!)G /. SE.i: ,

nt. :cu Before the Atomic Safety and Licensina Appeal Board In the Matter of  : .

Public Service Electric and Gas Company  : Docket No. 50-354 OL (Hope Creek Generating Station}  :

THE PUBLIC ADVOCATE OF THE STATE '

OF NEW JERSEY'S MOTION TO QUASH THE APPLICANT'S SUBPOENA The Public Advocate of the State of New Jersey, a cabinet level officer'of the executive branch of government of the State of New Jersey, N.J. Stats. Ann. 52:27E-1, ej seq.,

! and the party-intervenor in the above-captioned proceeding, L hereby files this motion requesting that the Atomic Safety l . and Licensing Appeal Board (" Appeal Board")

1. issue a stay, effective immediately of the subpoena signed by the Honorable Marshall E. Miller, presi-L , ding. officer of the Atomic Safety and Licensing Board

(" Licensing Board"), on March 15, 1984,* pending conside-rations of the merits of this motion in order to prevent

'Ihis subpoena directs the Honorable' Joseph H. Rodriguez, Public Advocate of the State of New Jersey, to appear at PSE&G's corporate office in Newark,

.New Jersey on March 30, 1984 at 10:00 A.M. A copy of the subpoena is appended as Attachment 1.

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immediate, serious irreparable injury; 2., direct certification of the instant motion, and determine whether it was appropriate to grant a sub-poena of a high-level government official (i.e. a cabinet official of the State of New Jersey), pursuant to the Appeal Board's authority 10 C F.R. 52.718(i); and

3. hear and resolve the enclosed motion under the Appeal Board's delegated obligations to entertain a motion to quash a subpoena due to the unavailability of the presiding officer below, pursuant to 10 C.F.R. 2.75 (b)

-(1) and - 2.720 (f) .*

The attached'. Memorandum of Law presents the Public Advocate's argument in support of this motion.

Dated: ~ March 26, 1984 Respectfully submitted,'

JOSEPH H. RODRIGUEZ PUBLIC ADVOCATE 1 s/

.. b BY:

R. WILLIAM POTTER, ESO.

Assistant Public Advocate Chairman Miller signed the subooena on March 15 and, then reportedly, departed for a vacation.

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.= .- q PRELIMINARY STATEMENT e

This is a motion to quash a subpoena of a cabinet official of the State of New Jersey, who is also an intervebor on behalf-of New Jersey residents

. .in the. Hope-Creek Operating License proceeding. -It Lcomes to.the Appeal-Board after an.apparently unsuc-cessful motion to the Licensing Board to vacate an earlier notice _of deposition _ filed by the applicant E- .util'ity, Public Service Electric and Gas Company (PSE&G"), the proponent of the subpoena. (The motion

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was "apparently unsuccessful" because'the presiding officer did not rule on it before signing the subpoena, notwithstanding responses by the'NRC staff in support

and ,by PSE&G in opposition.)

.Because forcing the Public Advocate to submit

, to PSE&G's deposition -- especially when he willingly' -

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' concedes that he-has no' knowledge of the underlying f acts - will cause .him, the office. he holds, and the LState'of New' Jersey, immediate irreparable injury, the PubliccAdvocate must call upon the AppealLBoard to stay the subpoena immediately, and hear the matter under its a ~

direct certification: authority,.or as'an exercise.of its_ original; jurisdiction:to. rule on motions to quash when thefpresiding officer is unavailable. 10 C.F.R.

SS2.720 (f) and L 2.785 (b) (1) . 'Whichever. basis is.used ,

the'Public-Advocate is' convinced'that swift and decisive

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i ' action by this Appeal Board is crucial to avert a manifest injustice and.a clear derogation of law.

(See Attachment 2, Affidavit of Joseph H. Rodriguez, Esq.,

Public Advocate of' the State of New Jersey.)

The memorandum which follows sets forth the Public Advocate's legal. argument in support of his motion --

and refutes the- arguments presented by PSE&G in support aof;the application for a subpoena.

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Table of Contents .

Title Page Procedural History . . . . . . . . . . . . 7 Argument POINT 1: .The Appeal Board Has Jurisdiction to Grant a Stay and Hear and Decide the Public' Advocate's Motion in Order to Protect the Important , Privilege of a High Government Official Against Compelled Examination . . . . . . . . . . . . . . . . 8 POINT II: Ns A Cabinet Officer of the State of New Jersey,. Commissioner Rodriguez is Privileged Against Compulsory Process Absent a Clear Showing of Extraordinary Necessity, Which is Not Present Here . . . . 14 POINT III: The Applicant _ Failed to Make

. the Requisite Clear Showing of Necessity Required to-Infringe the Privilege . . .. . 18 POINT IV: The Subpoena is Defective on Its Face as It Commands. Commissioner Rodriguez to be Deposed at PSE&G's Corporate Office -- which is far from Commissioner Rodriguez' Place of Business and Residence . . . .. . . . . . . 27 j_ _ Conclusion . . .. . . . . . . . . . . . . . . . 28 i

! Attachments Attachment 1 l (Subpoena, Dated: _ March 15, 1984). . . ..

l " Attachment 2 l

(Affidavit of Joseph H. Rodriguez, Esq.

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the Public Advocate of the State of New Jersey) . . . . . . . . . . . . . . . .

PROCEDURAL HISTORY The Licensing Board admitted the Public Advocate as an intervening party on October 5, 1983, subject to the submission of one or more viable contentions. On November 7, 1983, the Public Advocate submitted an amended petition containing various proposed contentions which were the subject of a Special Prehearing Conference on November 22, 1983 in Salem, New Jersey. After lengthy C discussion, the Board orally admitted four (4) of the Public Advocate's contentions, and then issued a written order on December 21, which. set forth the Board's deci--

sion and directives.

Discovery began.almost bmmediately and continues on three of the contentions, the fouth being in the process of withdrawal.

On February 9, PSE&G served a notice.of deposi-

- tionLon the Public Advocate, Commissioner Joseph H.

Rodriguez. After unsuccessfully _ attempting to reach an agreement, the Advocate moved on February 27 to vacate the notice and for a protective order due to Commissioner Rodriguez' privilege as a cabinet officer and his lack of information. On March 13, PSE&G filed F.'

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l Ean apparently untimely response opposing the motion,

-and applying for a subpoena.

The NRC staff on March-14 filed a response to the Advocate's motion'which supported "this request for 4 a protective' order." On March 15 Chairman Marshall E.

Miller-signed the subpoena, commanding Commissioner Rodriguez to appear at the office of PSE&G in Newark, New Jersey on March 30 at.10:00 A.M.

I 10 C .F. R.- 12. 7 30 (c) allows ten- (10) days to respond to a written motion. ~(Hereafter, this response will lxt referred to as . Applicant's Response) .

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2 ARGUMENT POINT ~I: The Appeal Board Has Jurisdiction To Grant A Stay And Hear And Decide The Public Advocate's Motion In Order To Protect The Important Privilege Of A High Government Official Against Compelled Examination.

-The Appeal Board has both the power and the auty to act under two separate provisions of the Commission's " Rules of Practice. First", 10 C.F.R. 52.718(i) authorizes this body to:

[act where the interlo'cutiory]. ruling below-either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which,.as a practical matter, could not be allevTated by a later appeal or (2) affected the basic structure of the p orunusualmanner.goceedinginapervasive (Emphasis added) .

Plainly, forcing'the cabinet head of a major department of state government to submit to depositions regarding questions i

l already answered by the Licensing Board, and when the official admits to having no factual knowledge or expertise - . simply because he dared to intervene to help assure that the interests of New Jersey residents are represented -- serves no proper purposes whatever and will cause immediate irreparable harm 2

In the Matter of Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), 5 NRC 1190, 1192 (1977). In the same opinion,-the appeal panel also suggested that a claim that " guidance is necessary" might also be relevant._ Id., n. 5.

which "as a practical matter [can] not be alleviated by a later-appeal." In re Public' service Co. of Indiana (Marble Hill), 5 NRC, supra at 1192. In the Matter of Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), 13 NRC.309, 310 (1081).

As the Appeal Board has noted in matters of interlocutory jurisdiction, "a like practice obtains in the federal system."

In re Public' Service Co. of Indiana (Marble Hill), 5 NRC 767, 768-(1977). Accordingly, we may look to the federal court system for guidance, including the question of the proper standard for appellate review generally of interlocutory decisions which are " final" as to a given right.3 Here, the courts agree that a subpoena in aid of discovery, although faciEuy interlocutory, is properly appealable to the circuit in order to protect a valid privilege. See, e.g., Continental Oil Co. v. United States, 330 F.2d 347 (9th Cir.1964) , setting aside a subpoena duces tecum which infringed upon the attorney-l client privilege, despite a claim of necessity in aid of an ongoing grand jury investigation.- ("The privilege here is a i-valuable and an important right... We think that to [ accept]

the limitations on this right urged by the. United States would 3 Since the federal rules currently do not require leave of court to subpoena a witness, R.45 of the Federal Rules of Civil Procedure (1983 Ed.), there are few recent federal circuit court decisions directly confronting the interlocutory appeal of-a subpoena order. Rather, the current federal i~

rule permits the person subpoenaed to serve a " written ob-

.jection" within ten days of service of the subpoena; there-upon the " party serving.the subpoena may ... move upon notice

~to the deponent for an order (from the district court} at any time-before or during the taking of the deposition." R.45 (d) (1) (P2) . Thus, it is to the federal district courts where we turn for the most recent guidance.

i tend in substantial measure to destroy the privilege." Id.

at 350) (emphasis added) .

Accord: International Business Machines Corp. v. United States, 471 F.2d 507, 515, 516 (2d. Cir. 1972) ("If IBM is compelled (to produce certain information) the harm thus caused IBM cannot effectively be remedied by an ' appeal from the final judgment'... 'When that time comes, it will be too late effectively to review the present order and the rights conferred ... will have been lost, probably irreparably.'")

(emphasis ~added) . 4 Investment Properties International, Ltd.

v. IOS, Ltd. 459 F.2d 705, (2d Cir.1972) (finding the requisite

" extraordinary significance" and " extreme need for review" to justify overturning an order vacating notice of deposition).

Further cases employing similar reasoning and achieving the same result -- declaring a proper appellate role to review pre-4 This case is especially instructive for its discussion of the two avenues by which the Circuit Court has jurisdiction to' review and set aside the trial court's discovery order.

These two routes -- mandamus or interlocutory appeal under 28 U.S.C. 8 1292 -- are analogous to the options before this Appeal Board: original jurisdiction to quash under 10 C.F.R. 2.720 ( f) and 2 785(b) (a, or directed certification by way ofL10 C.R.F. 2.718(i). The Court reasoned that whichever is l adopted "the two paths converge at a common destination, i.e.,

i appellate review of [the) Pretrial Order,".which the court t

reversed due to the " allegedly privileged material." --Id. at 517.

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trial orders with a " final" effect on a valid right --

'are legion.5 Finally, " Developments in The Law -- Discovery," 74 Harvard L. Rev. 940 (1961),- 994, 999-1000, describes the

" collateral orders doctrine" and the leading case of Cohen 4

v. Beneficial Industrial Loan Corp. 337 U.S. 541, (1949) which so ably articulates the need for appellate review.

The doctrine holds that when the~ trial court order disposes

' of an issue which is collateral to the subject matter of the litigation and which will expose-a person to potential irreparable injury if appeal is postponed until the final decision, an immediate appeal is permissible.

I_d . 999' (emphasis added) .

The authors' conclude that an order compelling discovery over a facially. valid claim of a privilege is precisely the sort of " collateral order" which meets the doctrine enunciated

'in Cohen v. Beneficial Industrial Loan Corp., supra.6 That 4 See , ;e.g. , cases colle.cted : in Industrial Business Machine '

-Corp. v. United States',- 4 71 (F.2d _507) supra, 517,.n. 17.

6 "This [ issue) appears to. fall in that small class which finally' determines claims of right separable from, and collateral to, zights asserted in the action, too important

.to_be denied review and too independent of the cause itself to -require that- appellate consideration be ' deferred until the whole case.is adjudicated. The Court has long given

!this provision :of -[28 ' U.S.C. E1292) This practical rather.

=that'a technical construction . . . We hold this order Lappealable because-it is a final dispositin.of a claimed right which is'not an ingredient of the cause of action and does-not require consideration with it." Cohen v..Benefi-cial. Loan Corp.,.337 U.S., supra, 546, 69 S.Ct., supra, o 1225-26 :(emphasis added) .

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is, the privilege once " lost" cannot be " returned" on appeal of the fi'nal judgmen4 regardless of the outcome. And since the- sanctions for violating a subpoena or discovery order are potentially so harsh (e.g. , contempt of court, dis-missal of the action, ' striking a defense, . etc. ), few parties will choose to run such risks. Lacking a remedy, the holders of the privilege will be " chilled" into giving it up, absent some mode of timely appellate attention. Hence, l

i immediate' appellate review, though it may be sparingly  :

invoked, is vital'if socially important privileges are to have any lasting strength.

The doctrine enunciated in Cohen is decidedly like that '

announced by this Appeal Board in In re PSC of Ind. (Marble Hill) 5 NRC 1190, supra. Thus, in Cohen:

"When that time

[of final judgment)-comes, it'will be too late effectively to review 'the present order, and the rights conferred . ..

will have been lost,-probably irreparably." Cohen v.  !

Beneficial Industrial Loan Corp., 337 U.S. supra, at 546.

Land in Marble HiD: "[W)e have taken discretionary inter-locutory review only where the ruling below . . . threatened

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the p. arty with immediate and. serious irreparable impact '

which ' as a practical matter, could not be alleviated by a

later appeal [of a '-final judgment] . " (emphasis added) . In

'short, .without 1saying so, this Appeal Board already has blazed its.own path to a " collateral rights doctrine" of appellate, interlocutory review which, as in the federal

system, offers real protection of important but -

fragile interests that will be lost if not protected imm'ediately .

Thus, it is clear that the Appeel: Board has the power and the duty to grant the requested stay of the subpoena compelling Commissioner Rodriguez to submit to depositions, hear the present motion in its entirety, and provide the relief requested -- lest a universally recognized privilege be lost, perhaps irreversibly, for want of a forum.

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J-I POINT II: As a Cabinet Officer of the State of New Jersey, Commissioner Rodriguez is Priviledged against-Compulsory Process, absent a clear showing of Extraordinary Necessity, Which is Not Present Here In the' attached Affidavit of Joseph H. Rodriguez the fully describes the cabinet-level status of his position as both the Public Advocate and Public Defender for the State of New Jersey, with the designation.of " Commissioner" of;the Department of the Public Advocate. New Jersey Statutes Annotated ("N.J.S.A.")'52:27E-1, et seq. As such, Mr.

Rodriguez is privileged against PES &G's efforts to compel ,

him to sit for depositions or.otherwise to submit to

'discove'ry . The law on this point is well-settled and beyond serious dispute. See, e.g., Halderman v. Pennhurst State

. i School and Hosp., 96 F.R.D. 60, 64 (E . D . inn., 1982),

7. In the Public Advocate's January'14 response to The Applicant's Preliminary Set of Initial Interrogatories counsel stated we "will inform the applicant . . . of all experts as soon as we complete the consultant selection and

contract negotiation process. The Public Advocate antici-pates that'this will be accomplished in the near future."

-Thus,'PSE&G will have someone to depose soon enough.

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rev'd on other grounds, __,U.S. , 52 L.W. 4155 (1984),

where the court quashed a subooena of Helen .0' Bannon, Pennsylvania's Secretary of the Public Welfare Department. In United States Board of Parole v. Marhige, 487 F.2d 25, 29 (4th Cir. 1973) , cert. denied, 417 U.S. 918 (1974), the court disallowed discovery'of members of the federal parole' board.

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Similarly,'the court in United States v. Northside Realty Associates, 324 F.Supp. 287, 293,295 (N . D . Ga. 1971),

rev'd on other grounds, 474 F.2d 1164 (5th Cir. 1973), granted a protective order against deposition of the Attorney General. -

Finally, the court in Wirtz v. Local 30, International U. of r.

Operating Engineers,'34 F.R.D. 13, 14-15 (S.D. N.Y. 1963),

protected Secretary of Labor Wirtz against the union's notice of deposition with this cogent reasoning:

It goes without saying that ours

- is a-government of laws and.not of men and that the Secretary of Labor is subject to the lawful orders of'this Court, as'is any private citizen.

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But at the same' time common sense suggests that a member of the Cabinet-and the administrative head of a large L

executive department snould not be

' l called upon personally to give testi-mony by. deposition, either in New York-6 or elsewhere, unless a clear showing I

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J is mada that such a proceeding is essential to prevent prejudice or in-justice to the party who would require

-it. No such showing has been made here and in the nature of things it could not be made.

34 F.R.D., , supra,.14.

J The Public Advocate is precisely such "a member of the Cabinet and the administrative head of a large executive department" who must be guarded against personal legal compulsion 'except in the rarest of circumstances. 8 3, the Affidavit confirms, Mr. Rodriguez is a State cabinet officer in command of a legal department with diverse ad-ministrative and cabinet duties. He is involved in literally tens of thousands of cases as counsel or.as a named party, or both.9 Moreover, he has no remotely relevant and discover-able information that PSE&G appropriately map discover -- whether l

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8. Federal courts routinely recognize that the l privilege applies to state officials with exactly the same l' force and effect as it applies to federal officers of comparable rank. See, e.g., Halderman v. Pennhurst State School'and Hosp., supra.

9. See, also, Sneaker Circus, . Inc. v. Carter, 457 F.Supp. 771, 794, n. 33 (E.D. N.Y., 1973) (forbidding deposition of a high government official "unless a clear

. showing is nade that such a proceeding is essential to (footnote-continued on next page) l.

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by deposition or through any other means.10 Accordingly, the Appeal Board should issue the appropriate protective ceders by quashing the subpoena and protecting Commissioner Rodriguez against further efforts to summon t

him in the future, absent a genuine showing of real necessity.

(footnote 9, continued from prior page)

Prevent prejudice or injustice to the party who would require it"); The Federal Rules of Civil Procedures, 28 U.S.C.

5331 (19 83) , R. 26 (c) , and related " Commentary;" Peoples v.

United States Dept. of Agriculture, 427 F.2d 561, 567 (D.C.

Cir. 1971), suppl. opinion of C.J. Leventhal ("[Slubjecting .a cabinet officer to oral deposition is not normally countenanced.");

and Schicke v. United States, 346 F.Supp. 417, 420-421 (D. Conn.

1972). .

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10. Affidavit, para. .

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2 PQint III: The Applicant Has Failed to Make the Requisite Clear Showing of Necessity Required to Infringe the Privilege As demonstrated in Point II, Commissioner Rodriguez

'is entitled to a privilege against compulsory testimony --

whether by deposition or by any other method -- which customarily is due all high government leaders, such as cabinet' officials. Citizens to Preserve Overton Park, Inc.

v. Volpe , 401-U.S. 353, 420 (1971). The courts unanimously agree that'only a. clear showing of necessity to. avoid mani-fest prejudice and injustice will obligate a high government official to submit to depositions. (See cases cited and quoted'in Point II, s u p r a .) 1 1 PSEEG's Application for Subpoena *Ifails utterly to meet this strict. standard.

Significantly, the applicant did not even mention, let

-alone distinguish any of the many federal' cases which so compellingly support the Public Advocate's position. l 1

11. The NRC Staff's Response to the Public Advocate's l IMotion for a Protecti ve Order provided additional argument and citations in supportof the Public Advocate's position.

12. At the outset we note that some confusion may attend this matter due to the lack of a Board ruling on the Public Advocate's Motion to vacate PSE&G's Notice of g

. Deposition and for a Protective Order.- The Board, however, granted the applicant's motion for a subpoena based upon

matters. allegedly presented in the Applicant's Response, i' .

(footnote continued on next page) s

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(See Applicant's Response to Public Advocate's Motion to Vacate; hereaf ter " Applicant's Response") . Indeed, the applicant merely relied upon general statements in unrelated NRC cases -- none from a federal court -- re-garding the familiar rule favoring a board scope of

- discovery (although the applicant acknowledges the applicability of the federal rules.)13 These generali-zations are then followed by an astonishing exercise in distortion which bares scant resemblan:e to the record to date. On this paltry basis it is impossible for any reviewing' authority to conclude that PSE&G is entitled to the extraordinary relief demanded.

1 The applicants launchithis voyage of misinformation by asserting'the truism that "the basis of the Public Advocate's (footnote continued from previous page) when=it probably should have been treated as a separate motion entitling the Public Advocate ~ and NRC staff to respond prior to the Board's approval of the. subpoena. The Com-

- mission's Rules of Practice unconditionally permit all parties a chance to. respond to notions. See 10 C.F.R.

4- - E2. 73 0 (c) and (h). Had such an opportunity been provided,

- the Public Advocate would have opposed the subpoena motion for the-reasons stated above.

13. See, e.g., Applicant's Response, p. ,

6, n. 14.

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' contentions is not privileged"14 -- as if the Advocate had ever asserted such a privilege. The privlege that is asserted is the right of a cabinet officer to be free of compulsory testimony, absent real necessity, nothing more and nothing less. Applicant's counsel seeks to divert attention from this central point by arguing against a straw man -- the typical tactic of one who lacks.a legitimate basis for his claim.

Next, as for the requisite " clear showing" of necessity "to prevent prejudice or injustice" required of one who seeks to subpoena a high government official, Wirtz v.

Local 30, International U. of Operating Engineers, 34 F.R.D. 13, 14-15 (S.D. N.Y. 1963) , PSE&G simply restate s its* strongly-held' complaint that "the operating license proceeding would not exist but for the contentions put forth by the Public Advocate." (emphasis.added)

While . it may well be that "but for" the Advocate's intervention there would be no hearings, this allegation

14. Applicant's Response, p. 3.

15. Applicant's Response, p. 3, repeated again almost verbatim at p. 8.

l eqe +-c wg - -w-- , - - - ys e- pm - -- -<- --- mm -

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- r i-is both. conjectural and-beside the point.16 (One might just as.well lament that "but for" the Licensing Board's

. decision-to' admit the Advocate, or "but for" the staff's

_ concurrence,with,at least one of the Advocate's contentions

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there would be no " operating license proceeding" -- yet neither entitles the~ applicant to su'bpoena the presiding officer or the staff!) The question remains whether the Ltest of clear necessity laid-down in a long line of cases has been met.- Specifically, has the applicant made

. .(1)- a clear showing that E(2) the Commissoner's deposition is esential,

. -(3) to prevent preiudice or iniustice?

' ' ' Plainly, PSE&G has shown none of the above. Signifi-cantly,.theEapplicant has not even affixed an affidavit to support any element-of its claim of necessity,.but chosen L.instead to rely on contrived interpretations of the law and of the-facts in the record to date. ,

t , 16 '. .First, the Commission or its staff could always seek hearings sua sponte.or on their own motion. 42 U.S.C.

2235 and-2239(a), which show that dispensihg with a hearing

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at.the'OL stage, while customary, is not required. Second, F

-late-filed' petitions-might.still have " triggered" the con-Evening of a' Board and the admission of parties leading to the: prospect of hearings, 10 C.F.R. 2.714 (a) (1) and '(d) .

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At bottom, applicant's claim rests upon a fundamental absurdity. Stated simply, PSE&G believes that necessity is shown sufficient to overcome .this important privilege simply _because the company faces the prospect of hearings and.no Public Advocate witnesses or experts have been

? identified as yet.17 Such a view, if accepted by this Commision, could render the privilege a nullity and put

-any. State government official in jeopardy, simply because he has intervened in an NRC proceeding without a technical staff at his side from the outset. Applicant's counsel, in short, will have his shot -- but he cannot be allowed to pick'any1 target he wishes, when and where he wishes.

The next twist in~ applicant's tale is the statement that "the Public Advocate has repeatedly failed to state who formulated the contention'and provided their

17. As stated in the Public Advocate's responses to L the applicant's first interrogatories, contracts have not yet been signed with consultants who will assist the Public Advocate; the applicants will'be notified as soon as this has been' accomplished. The applicant explicitly notes this l

' fact'in his Response, at 4, but_ adds: "Thus, the necessity of deposing Mr. Rodriguez arises from the Public Advocate's failure to: comply with the NRC's -rules by providing the basis

of his contentions and. responding to-discovery." (emphasis L added) At the time the contentions were admitted one or (footnote continued on next page) t -- ,

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' bases.18 The applicant is well-aware of the answer: the attorneys.who signed the papers of intervention, who

-publicly explained the -contentions at the November 22, 1983 special prehearing conference, who argued for their admission, and.who have responded to.date to applicant's inquirks are

.well-known to'all as the authors of the contentions. Indeed,

-at the' conference, counsel 1to the Advocate redrafted many of the contentions publicly and before the very eyes of all those present.k9

.(footnote 17 continued from previous page) .

. more " bases" were explicitly' identified and found to be such

.by: the ~ Licensing Board. .See, generally, the Transcript of the:Special Prehearing Conference, November 22, 1983 and the

, Board's Special Prehearing Conference Order, December.21, 1 _1983.' Moreover, no rule violation-is identified except the assertion'that the: Advocate has "by analogy" violated the

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rule against denying information " based upon a claim of awaiting,further-discovery." The Advocate.has'made no such

. claim. Moreover, before a Board may sweep aside a long-

settled privilege, _it should consider less intrusive alter-natives -- such.as entertaining a' motion to compel discovery.

10 C.F.R. E2.740(f).

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.18 . Applicant's Response, p. 9.

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L 19-. .See, e.g.,-the transcript of the: November 22, iL SpecialJPrehearing Conference, Tr. 132-134, where counsel l to the: Advocate-read into the record the redrafted Contention

-I'(which the Board accepted at Tr. 13 9 )'; Tr. 170, where counsel l- stated:- "Mr. Chairman, Mr.-Dewey of the Staff and I have

' consulted and we.have agreed to the following language for Contention V. And I will read it." and.Tr. 218, where counsel

-to.theJState of Delaware observes that "Mr. Potter could E . rewrite-[ Contention:X)" which was promptly done, and then treadoit into.the record (Tr. 219: "Mr. Chairman, I would be willing to give-[ redrafting) a-shot . . ..This is.the

!. Public : Advocate's . rephrased Contention X. ") In short, it

[ was as obvious to Applicants on November 22 as it is today

[ (footnote continued on next page) p .

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Finally., in what is perhaps the most curious aspect of applicant's brief, we' find the puzzling assertion that "under the law of the State of New Jersey, given [ Commissioner Rodriguez'] first-hand knowledge and direct involvement . . .

it is clear he can be deposed." Applicant's Response, p. 9,

n. 21. As stated previously and in the attached Affidavit of Commissioner Rodriguez, he does not have such "first hand knowledge and direct involvement." Moreover, even if he did,the .New Jersey cases applicant cites compel the very opposite conclusions. Thus, in Hyland v. Smollock, 137

N.J. Super. 456 (App. Div. 1979) , 349 A.2d 541 cert. denied, 71 N.J. 328 (1976), 364 A.2d 1060. The appellate court reversed the lower court's denial of a protective order sought'by the Attorney General, noting that the Attorney General's affidavit denied active participation in the suit and concluding

"The rationale of the trial judge l

(footnote 19 continued from previous page) by the named Advocate attorneys that the contentions were drafted and redraf ted/-- at times l

rapidly, at counsel's table and before their very eyes.

The " mystery" they would solve by forcing Mr. Rodriguez l to submit to a subpoena does not exist.

I~

l

[

~that since Hyland is the plaintiff he is subject to being deposed ignores the fact that-the Attorney General is suing' solely in a representative capacity." Hyland v.

O

- Smollock,:137 N.J. Super., supra, 960. (emphasis added)

Similarly, in Borough of Morris Plains v. Dept. of Public Advocate,: 169 N.J. -Super. 403 (App. Div. 1979),

404 A.2d 1244,. cert. den'd, 81 N.J. 411 (1979), the threshold issue before the Court was the borough's motion to compel discovery from the Public Advocate regarding the basis forfhis suit -- an. issue analogous to the instant controversy.. The court denied the motion, calling it

" entirely inappropriate," 169 N.J.,_ supra, 407, and relied instead entirely on an affidavit submitted by the

Public Advocate.

Finally, PSE&G cites N.J. Sports & Exposition Authority

v. McCrane, 119 N.J. Super. 457 (Law Div. 1971), 292 A.2d 580, aff'd, 61 N.J. 1 (1972), 292 A.2d 545, appeal dism'd, 409 U.S. 943 (1972), but nowhere in this 109-page decision can one find any mention of the questions here at issue.

l In-short,;New Jersey case law closely parallels the

20. The Public Advocate, of course, has intervened solelyJin his " representative capacity."

-2'5-n _

~

Y.

federal approach -- which the applicant has conspicuously failed to address. The recitation of the above cases,

, .therefore, merely underscorec ' the Public Advocate's con-tention (except for the third case which has no hearing

.whatever). Why PSE&G's counsel chose to cite them for the opposite rule of law is unclear, to say the least.

In sum, we find a consistent pattern to PSE&G's argument: First, applicant utterly ignores and distorts the governing law. Second, PSE&G wants to relitigate the Board's.'Orderslof November 22 and December 21 admitting certain contentions and denying others, and, third, the applicant in its impatience absolutely must depose the Public Advocate himself, (notwithstanding'his lack of technical expertise and the existence of a nearly in-assailable privilege against compulsory process).

0 0

k

. - . . . _~

t 5

' - - -Point IV: The Subpoena is Defective on

'Its Face as It Commands Commissioner Rodriguez to be Deposed at PSE&G's Corporate Office -- which is far from Commissioner Rodriguez' Place

- of Business and Residence 1 L The- federal rules provide that- a person may be required to attend an examination

-only in the county wherein he resides or-is employed or transacts his busi--

ness.in person, or at such other-convenient place'as is fixed by an order.of court.

j R. 45 (d) (2) (1983 Ed.)

PSE&G has set the deposition for Friday,- March 30, at 80 .

- Park-Place, City of-Newark,;Essex County, New Jersey. As E noted in the Af fidavit of the Public- Advocate, Commissioner Rodriguez uses the headquarters. office of-the department --

located in-the RichardTJ. Hughes Justice Complex, City of 1 Trenton, Mercer County, New Jersey -- as the place where L he' is, employed and " transacts his business in person."

i '

Trenton ~is about.55 miles from. Newark. Moreover, Commissioner i

Rod iguez . resides 'in Cherry Hill,. New Jersey, which is

-another E35 miles southwest of Trenton. Accordingly, the site-is neither within the county of business nor residence of the deponent,.nor is it within close proximity to either.

1

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t

. Conclusion

<The' Appeal 1 Board has jurisdiction of this mot' ion to quash under two seprate provisions of the Commission's Rules, 10 C.F.R. 2. 718 (i) and 2.785 (bX1) .The . Appeal Board should grant the requested stay of the subpoena and hear and. decide the motion to quash in order to prevent immediate, serious irreparable harm to a cabinet officer of the State of New Jersey. The matter is ripe for the 1

Appeal' Board's decision; while it relates to discovery, the interest will be irreversibly lost if the motion is not heard immediately. The applicant-has studiously avoided discussing case law on the subject, has distorted the factual record and attempted to mislead the Appeal Board on-the standards of New Jersey law.

Finally, the location of the deposition lies well outside the Commissioner's place of business and residence.

For these and other reasons the subpoena signed by the' Honorable Marshall E. Miller on March 15, 1984 should be. stayed indefinitely and this motion heard and granted.

Respectfully submitted, JOSEPH H. RODRIGUEZ Public Advocate of the State of New rs y /fl ,

By: . r R. WILLIAM POTTER Assistant Public Advocate /

Assistant Commissioner Dated: March 26, 1984-ATTACHMENT 1 Enitch &ates af America NUCLEAR REGULATORY COMMISSION O

In the matter of:

Public Service Electric ,

and' Gas Company  %. DOCKET NO. 50-354-OL (Hope Creek Generating Station)

TO The Honorable Joseph H. Rodriguez '

Public Advocate for the State of New Jersey .

Department of the Public Advocate Trenton, New Jersey 08625 YOU ARE HEREBY COMMANDED to appear .".Y.. 3.D.9...?.$.$.b.9.8...?.$...hD.S....Ge, n3,g,, a1

.S,911,c i t,g r ,,,,,P g,p,{ i,g,,, S,e rvi,c e,,,E 19,c,t,r,i,g,,,,a,p,,d,,,G,a s, ,,C,g, ,,,,,,,8,0,,,g a r,],,,,p}aza, 5th f100I in th e ci ty o f .. lieW.a, r,k. ,,,,,1,{,e,y,,,,J,e,,r,s,e y,,,,,,q]1Q 1,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

o n the.....3 0,.D E. .....da y o f.....I.!.a,3,ch,,,,,,,,,,,,,,,,, g 9,,8.f.......a t...... ........d.0.... 0'clo ck A M.

t o t e s t ify o n be h alf o f . .. . . ... . . . .. . . .. . . . . .. . . . . ..... . .. .. ........ .. ..... . ... .. . .. .. .. .. .... .. ... .. .. ... . . .. . .. . . . . .... . . ..

and bring with you all documents on which you intend to rely lik9heMo5eEddde%*Nifd and bring with you the document (s) or object (s) described in the attached schedule.

BY ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD BY ~

.d m Public Service ... l.. ... -. .. . -

4TTORNEY.FOR 1 ectr 1e an, aos Comeany Troy m. Conner, Jr.

TELEPHONE 202/833-3500

/

presssing ofpcer or. it he is un,atiab <. the 10 C.F.R. 2.120 (i) Commitn'on may (1) aussh or modify the sub-On motton made promptly, and in any twnt at or before the ttme specified in the asbpoena poerts if it it unreasonsbit or requires evidence

[D complience by the person to swhom the sub not relement to any matter in issue. or (2) con-

~. -