There are two new filings in the original case which have not been reported on. It looks like Cuccinelli did actually file his appeal, and UVa filed a response and motion to dismiss the appeal on Nov. 4. Unfortunately, I’m on my way out of town and won’t have a chance to run by the courthouse, but someone should look into this…..
UVa has filed it’s response to Cuccinelli, but it’s likely irrelevant for the time being. Whaaaaa?
That’s because UVa also filed a motion to stay all proceedings regarding the most recent CID. And I’m almost certain they will get it.
When Cuccinelli failed in his previous attempt to get the CID, he stated that he would both file a new CID and appeal the original decision. The new CID has been filed, and Cuccinelli has begun procedures to begin the appeal process on the original CID. Hopefully, you should be asking the question, aren’t these two actions redundant? The answer is clearly yes, and furthermore, that the outcome of one hinges on the outcome of the other.
So what UVa has done is submit a motion to put the new CID on hold until the appeal process on the first CID is complete. I can’t think of a rational reason for a judge to reject the stay, unless the appeal process on the first CID is too tentative to stay the new CID. I strongly suspect a judge will rule in UVa’s favor on this motion, so we will have to wait a while for the appeal process to finish before anything new comes from the on the new CID front…..
Completely unrelated to climate change, Cuccinelli still can’t seem to get his facts right. As part of his suit challenging the health care reforms, Cuccinelli “suggested that not even the British would have attempted to force Americans to buy a product.”
Tell that to the Chinese. In the 19th century, Britain had two wars with China so they could force the Chinese to buy opium in order to rectify the gross Chinese trade imbalance. Given Cuccinelli’s misrepresentation of science, it’s not surprising he also misrepresents history.
Many others have already covered how spectacularly bad this latest CID is. What I intend to look at for this particular volley is whether or not it remedies the problems under which the original CID was rejected.
In summary, not terribly much has changed in substance, but the case is on slightly less dubious legal ground. The scope is narrowed from five grants to one, but the scope of the evidence is not. Cuccinelli tried to state a case based on poor statistical significance, but something tells me that the odds of a judge buying that as fraud have poor statistical significance. For better or for worse, though, this new case will rely much more on the substance of Mann’s research, since Cuccinelli has now patched over the superficial legal flaws which were used as grounds for dismissing this case previously. I predict the questions for the court to decide will be “Does the AG have objective reason to believe that a violation occured?” and “Is the scope of evidence sought appropriate?” The former is all about the science. The second is unlikely to result in an outright dismissal. Therefore we will be having science put to the test in a court hearing.
The rest is below.
*this is an obligatory Serenity reference. Suffice it to say, my hopes of not having anything more to blog about have been dashed.
Cuccinelli has done it again.
Sigh.
Unfortunately, I’m out of town at the moment and don’t have time to look at it in detail. I’ll try to see if Cuccinelli has actually improved the previous deficiencies and post something about it by the end of the weekend.
Cuccinelli’s Civil Investigative Demand (a subpoena in all but name) has been set aside. However, it’s not a clear and convincing enough victory that Cuccinelli can’t try the same thing again with a better worded CID. For the most part, however, this ruling is a major setback to Cuccinelli’s anti-science crusade.
The one sentence summary is that although the current CID is severely deficient, a new CID filed that only pertains to funds spent after Jan. 1, 2003 on the single internal UVa grant that seeks specific information relating to that grant might be valid if a specific allegation of fraud can be stated. The Judge Peatross’s decision hinges on the answer to six questions and most of his answers contain a “but” that Cuccinelli can use to file again. Details under the cut:
So I will start off with my first impression of the court case overall, and I will leave my relatively raw and detailed notes of what was argued below the cut.
Uva tried to argue that the key issue was that the university was not a person or corporation and instead a state agency. The judge did not seem terribly enamored of this argument, especially since the law under “Corporations” explicitly states that the university is a corporation. Uva tried to argue that down by pointing out it has both a corporate/state agency duality, and that state agency nature was dominant here. I got the impression the judge didn’t buy that argument.
However, the judge was equally unimpressed with a critical argument from the AG’s side. He repeatedly asked them what the basis for a fraud claim was and they never really answered in any more than a vague sense. The judge was also seemed displeased with the argument that the AG had no need to set out a particular instance of fraud to conduct “”only”” an investigation.
These arguments took up the majority of the time in court. The Judge indicated he was not ready to render a decision and would have to think it over. He informed the parties to expect a decision within ten days.
My blow by blow is below:
Just a quick update, several organizations filed an amicus curiae brief on August 17 on the side of UVA. It didn’t get any press attention (and I haven’t had a chance to read it), but it can be found linked from my court filing page. The organizations involved are Union of Concerned Scientists, the American Association of University Professors, the American Civil Liberties Union, and the Thomas Jefferson Center for Free Speech. It is worth noting that 3 of these 4 organizations are non-partisan (I would personally argue that the Union of Concerned Scientists is the exception).
UPDATE: I have finished reading the document. Nothing terribly new other than some longer quotes from previous cases on academic freedom. However, one is worth mentioning. It was the Dow Chem Co. v. Allen (1982) (672 F.2d 1262), in which Dow sued a university scientists for all of his research notes on potential harmful effects of one of Dow’s chemicals. Dow lost, badly. And the leading judge had this to say about turning over scientific research to political opponents with an axe to grind:
To begin with, the burden of compliance certainly would not be insubstantial. More important, enforcement of the subpoenas would leave the researchers with the knowledge throughout continuation of their studies that the fruits of their labors had been appropriated by and were being scrutinized by a not-unbiased third party whose interests were arguably antithetical to theirs. It is not difficult to imagine that that realization might well be both unnerving and discouraging. Indeed, it is probably fair to say that the character and extent of intervention would be such that, regardless of its purpose, it would “inevitably tend( ) to check the ardor and fearlessness of scholars, qualities at once so fragile and so indispensable for fruitful academic labor.” Sweezy, supra, 354 U.S. at 262, 77 S.Ct. at 1217-18 (Frankfurter, J., concurring in result).24 In addition, the researchers could reasonably fear that additional demands for disclosure would be made in the future. If a private corporation can subpoena the entire work product of months of study, what is to say further down the line the company will not seek other subpoenas to determine how the research is coming along?25 To these factors must be added the knowledge of the researchers that even inadvertent disclosure of the subpoenaed data could jeopardize both the studies and their careers. Clearly, enforcement of the subpoenas carries the potential for chilling the exercise of First Amendment rights.
It’s nice to see that sometimes, the courts just get it.
Apparently, UVa paid good money to their lawyers. Their criticism roughly lines up with mine from my previous post. UVa’s response begins by pointing out that Cuccinelli spends a full 1/3 of his document outlining scientific criticism of Michael Mann rather than fraud. Just like I have done, UVa does not need to rely on assertions about the truth or validity of the science to take the wind out of Cuccinelli’s sails. I think rather than dissecting this page by page, I will leave you all with the best quotes:
Intro
Note: Next filing (and therefore update) is Tuesday, 7/20, UVa’s response to Cuccinelli’s detailed response.
Summary: Cuccinelli says anything remotely touched by UVa automatically becomes state funding, even when it’s not coming from the state. When asked to produce specific information he’s looking for, his defense is that he doesn’t need anything specific, since the attorney general can investigate anyone he chooses. When speaking of the first amendment, the chilling effect on research is irrelevant, only the noble pursuit of a fraud case against research Cuccinelli disagrees with. In short, this CID (~subpoena) should hopefully be thrown out the first time a judge rules on it.
Anything in parenthesis is my opinion. Without parenthesis is mostly fact and should be obvious when it’s not.
Cuccinlli’s first argument (p. 16): “The Attorney General has reason to believe that the University has documentary material or information relevant to a FATA investigation.”
Cuccinelli argues that while he may not have enough evidence for an FATA violation, he doesn’t need evidence to collect evidence under the statute. (IANAL, so perhaps the statute is too broadly worded? Surely there is some pre-existing evidence that is needed before one can go about issuing what amounts to a subpoena? Also of note here, Cuccinelli emphasizes how grants were spent, not the research itself as the subject of the investigation. However, the lion’s share of his request is information about research, not grants. Interesting….)
The supporting argument continues on pages 17-21. It goes something like: “I’m the attorney general. Therefore, I am vested with the power of investigating possible crimes or evidence that crimes have not been committed.” Cuccinelli goes on to state that the key is in the wording of the Virginia statute (FATA), which allows issuance of a CID in the case of cause to investigate vs. cause to prosecute. (The argument is well-reasoned and cited, but frightening in its implications. It equates an attorney with a special prosecutor with nearly unlimited power to issue subpoena’s. It seems like a dangerous idea to give a politician nearly unlimited power to dig up dirt on those he disagrees with…..)
Academical Freedom 