30 August 2010

As Expected: Cuccinelli Quashed

Exactly as expected, a Virginia judge ruled against (PDF) Attorney General Kenneth Cuccinelli's fishing expedition at the University of Virginia.  The Washington Post reports:
Judge Paul M. Peatross Jr. ruled that Cuccinelli can investigate whether fraud has occurred in university grants, as the attorney general had contended, but ruled that Cuccinelli's subpoena failed to state a "reason to believe" that Mann had committed fraud.

The ruling is a major blow for Cuccinelli, a global warming skeptic who had maintained that he was investigating whether Mann committed fraud in seeking government money for research that showed that the earth has experienced a rapid, recent warming. Mann, now at Penn State University, worked at U-Va. until 2005.

According to Peatross, the Virginia Fraud Against Taxpayers Act, under which the civil investigative demand was issued, requires that the attorney general include an "objective basis" to believe that fraud has been committed. Peatross indicates that the attorney general must state the reason so that it can be reviewed by a court, which Cuccinelli failed to do.
For his part AG Cuccinelli says he is going to pursue the effort based on the guidelines of the ruling:
Cuccinelli said in a statement that he will send a new CID to UVa to continue his hunt for proof that Mann defrauded Virginia’s taxpayers in obtaining grants that funded his climate change research.

“While this was not an outright ruling in our favor, I am pleased that the judge has agreed with my office on several key legal points and has given us a framework for issuing a new civil investigative demand to get the information necessary to continue our investigation into whether or not fraud has been committed against the commonwealth,” Cuccinelli said.
Even so, I'd guess that this is the last we'll hear from Cuccinelli on this subject.


  1. This is far from over. It is long past time for big tax payer funded science to be held to the same standards as any other govt. funded group.
    My bet is the AG will prevail on this. Hiding from the public behind the veil of science is frankly not credible anymore.

  2. I'm not surprised he was quashed, because the CIDs were definitely overbroad, but there is still a glimmer of hope in there for those who were looking forward to discovery on this case.

    On a quick skim of the decision, a few things stood out. First was that the nature of the offense wasn't plainly spelled out, and that the CIDs are repairable to the extent that this can be fixed. In other words, he has to have something specific he's investigating, and not just be on a fishing expedition.

    Second was that the university was held to be a "person" for purposes of the statute, and thus a proper recipient of a correctly-created CID.

    The last thing that stood out was on whether or not the AG could investigate federal grants. Here's the entire relevant text of the decision. "The Attorney General argued on August 20, 2010, that funds paid to Dr. Mann by a federal grant and placed into a University of Virginia bank account become funds of the Commonwealth. The Court disagrees."

    That's it. No analysis, no cite of precedent, nothing. This screams of the kind of thing that an appeals court likes to get into, so I suspect the appeal's already being filed. Now, I'd guess that barring there actually being some existing precedent on the matter that goes the other way, the appeals court will probably agree. But the initial judge on this one definitely took the lazy way out.

  3. http://vaquitamlaw.com/2010/08/18/hearing-to-be-held-on-uvas-challenge-to-the-oags-civil-investigative-demand-this-friday-august-20-2010-at-200-pm.aspx

    "As Expected: Cuccinelli Quashed" - it would appear that is not the case - it is just a start of a process.

  4. Presumably courts issue warrants for disclosure or seizure of confidential information all the time in fraud investigations.

    What is the:

    ""objective basis" to believe that fraud has been committed"

    typically demanded of an application by an AG to peruse the emails and files of a company in such an investigation?

  5. I doubt corrected CID's can be filed without an appeals court first over-ruling the opinion on federal grants (point 4 of the ruling). Only one grant in 2001 on Cuccinneli's list wasn't a federal grant. In point 6, the ruling was that only grants where funds were paid after 1/1/2003 can be investigated.

    FATA only applies to moneys paid by or claims submitted to the Commonwealth of Virginia. That would seem to rule out federal grants prima facia with no need to cite precedent.

    To quote toto at The Air vent:

    So the judge said, “I’ll let you request these documents, IF you provide any evidence of potential wrongdoing (which you haven’t so far), and IF you can find a grant from the state of VA to Mann after Jan 1 2003 (which you haven’t either).”

    The only winners in this case will be, as usual, the lawyers.