NAF TOOK A STAND/JUDICIAL NOMINEES/Michael Fisher/A Letter of Protest

NAF and 15 other organizations, expressing our united opposition to the nomination of Michael Fisher to the U.S. Court of Appeals for the Third Circuit

October 8/9, 2003

The Honorable Orrin Hatch
Chairman, Senate Judiciary Committee
United States Senate
Washington, DC 20510

The Honorable Patrick Leahy
Ranking Member, Senate Judiciary Committee
United States Senate
Washington, DC 20510

Re: Nomination of Michael Fisher

Dear Chairman Hatch and Ranking Member Leahy:

The undersigned organizations, representing countless Americans in the Third Circuit and across the country, are extremely dismayed that a hearing has been scheduled for next week on the nomination of Pennsylvania Attorney General Michael Fisher to fill a vacancy on the Third Circuit Court of Appeals. In February, Mr. Fisher was found guilty of a civil rights violation under section 1983 and a jury ordered him to pay more than $220,000 in damages. The case will almost certainly be appealed to the very court to which Mr. Fisher has been nominated.

Although some of the undersigned organizations have opposed Mr. Fisher's nomination, and others have not taken a position, all of us agree that it is unacceptable to consider confirming Mr. Fisher while this case is pending. We urge you to postpone next week's hearing until the matter has been fully resolved.

In February of this year, a federal jury found that Mr. Fisher maliciously or wantonly deprived Pennsylvania narcotics agents Charles Micewski and John McLaughlin of their civil rights by retaliating against them for filing an earlier lawsuit.¹ That earlier lawsuit claimed that the agents were no longer allowed to work as street agents and that prosecutors began refusing to prosecute the agents' cases because of allegations the agents had made of corruption in connection with a Dominican drug trafficking ring operating in Pennsylvania and other eastern states.²

Though the agents' original suit was eventually dismissed, the agents contend that they suffered a variety of retaliatory actions at the hands of the Pennsylvania Attorney General's office under Mr. Fisher after they filed the original suit. Although an Attorney General's office internal investigation had apparently cleared the agents of any wrongdoing,³ the agents contended that, within weeks of filing the original lawsuit, they were involuntarily transferred out of the Bureau of Narcotics and sent on long-term "temporary" duty hours away from their homes. While assigned to these new locations, they contended that they were forced to drive hours to work, were separated from their families as they had to live in hotel rooms during the week, had little or no work assigned to them, and were deprived of benefits.⁴ At trial, Mr. Fisher testified that he agreed with the decision to transfer the agents.⁵

In 1998, seeking redress for the retaliatory conduct, the agents brought a second suit against Mr. Fisher and four other members of the Attorney General's office. At trial, the plaintiffs' attorney introduced evidence that the Attorney General's office had never considered the harmful transfers before the agents filed the original lawsuit.⁶ Further evidence demonstrated that, when the Attorney General's office began hearing rumors that the agents would file a suit, memos and other documents were created that suggested exhausting the agents by keeping them on a "tight leash," subjecting them to frequent disciplinary measures, breaking them up through a series of transfers, and telling them that "their careers as investigators are over." One such document even suggested firing the agents.⁷

In its verdict in February of this year, a federal civil jury found that Fisher and other defendants had violated the agents' civil rights under 42 U.S.C. 1983 and awarded them $1.5 million in damages for the retaliatory acts they suffered. The agents received $225,000 in actual and punitive damages against Mr. Fisher personally for his role in the retaliation.⁸ A spokesperson for Mr. Fisher says that the Attorney General's office plans to appeal the verdict.⁹ At this point, the district court has not yet received post-trial motions by Mr. Fisher and the other defendants, which are due five days after the scheduled Committee hearing.

The troubling and ongoing questions raised by this case make consideration of Mr. Fisher's nomination clearly inappropriate at this time. Depriving employees of their civil rights is an extremely serious matter that demands thorough investigation and consideration. The transcript of the trial itself is more than 1,000 pages, and the jury's verdict is to be reviewed by the trial court as well as the court of appeals. The Committee should not attempt to second-guess the jury's verdict while that process of review is underway. [Furthermore, a number of documents related to the case have been requested, but not received, by Committee staff.] Until the case reaches its conclusion and the Committee then has the opportunity to review the entire case history, it will not be possible to fully and fairly evaluate Mr. Fisher's fitness for a lifetime judicial appointment.

It is also highly inappropriate for a nominee to be considered by the Committee as he prepares to appeal a verdict against him to the very court to which he has been nominated. In fact, we are unaware of any other instance in which the Committee has taken this unprecedented step.

Mr. Fisher's presence on the Third Circuit bench while his case is being heard would create, at the very least, perceived conflicts of interest and a significant appearance of impropriety. How could the agents, and the public, believe that a truly fair hearing on the appeal would take place?

For these reasons, we strongly urge the Committee to postpone consideration of Michael Fisher's nomination to the United States Court of Appeals for the Third Circuit until the verdict against him has been fully resolved and the matter can be properly considered by the Committee.

Sincerely,

1. Micewski v. Fisher, No. 3:00-CV-0521 (M.D.Pa. Feb. 12, 2003) (special verdict judgment).
2. Michael Rubinkam, "Narcotics Agents Win Lawsuit Against Pa. Attorney General," AP, Feb. 11, 2003; Pete Shellem, "2 Agents Win $1.5 Million in Suit Against Fisher, 4 Aides," Harrisburg Patriot, Feb. 12, 2003, A1.
3. Deposition of Charles A. Micewski, July 19, 1999 at 178 - 179.
4. McLaughlin v. Fisher, No. 3:00-CV-521 (M.D.Pa. Feb. 12, 2003) (trial transcript, vol. I, Feb. 3, 2003) at 32, 100 - 103, and 112. McLaughlin v Fisher, No. 3:00-CV-521 (M.D.Pa. Feb. 12, 2003) (trial transcript, vol. II, Feb. 5, 2003) at 37. McLaughlin v Fisher, No. 3:00-CV-521 (M.D.Pa. Feb. 12, 2003) (trial transcript, vol. IV, Feb. 7, 2003) at 104, 107, 113, and 115.
5. McLaughlin v. Fisher, No. 3:00-CV-521 (M.D.Pa. Feb. 12, 2003) (trial transcript, vol. II, Feb. 5, 2003) at 224.
6. McLaughlin v. Fisher, No. 3:00-CV-521 (M.D.Pa. Feb. 12, 2003) (trial transcript, vol. IV, Feb. 7, 2003) at 87 - 92.
7. Id. at 91 - 92; Shellem, supra note 2.
8. Micewski v. Fisher, No. 3:00-CV-0521 (M.D.Pa. Feb. 12, 2003) (special verdict judgement).
9. Shellem, supra note 2.

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