Saturday
Mar032012
by 
Bishop Hill
Bishop Hill Cuccinelli falls at final hurdle
Mar 3, 2012 Climate: Mann FOI The quest of Virginia Attorney General, Ken Cuccinelli, to extract Michael Mann's email correspondence from his time at the University of Virginia has finally failed.
The Virginia Supreme Court halted Attorney General Kenneth Cuccinelli's demand for a former University of Virginia climate researcher's emails Friday, ruling that he lacked authority to subpoena the records.
The ruling is a victory for the university, researcher Michael Mann and higher education officials and faculty who claimed Cuccinelli's "civil investigative demand" threatened to chill academic freedom and scientific research.
Reader Comments (33)
speechless
Unfortunate tidings indeed, though M. E. Mann [and his fellow climate statistical fixing conspirators] cannot rest easy, the truth is out there - in CGIII.
A minor setback is all it is.
A victory? So by that wording, who does have authority if anyone?
"Lack of authority" doesn't mean that "academic freedom should not shield scientists and educators from investigations into whether they might have broken the law". But authority is the first hurdle to take. Lack of authority in this particular case means that either the wrong person or body made the request or that these kind of investigations can not be performed. In the latter case it is up to the legislator or to the public to change the law to make these kind of investigations possible.
My gut feel says that the wrong person/body initiated the investigation.
'"If academic freedom means anything, it is that scientists and other scholars should be able to communicate freely without fear that the government is looking over their shoulders," said Kent Willis, executive director of the ACLU of Virginia.'
What Willis meant to say was that scientists should be able to break the law without the state looking over their shoulders! Mann is leading a charmed life indeed.
The court ruling means that Cuccinelli will not get the e-mails via Civil Investigative Demands. There still remains a good chance of getting the e-mails via the Freedom of Information Act. Chris Horner, at the American Tradition Institute, has released a statement about the ATI’s work on this:
http://www.atinstitute.org/american-tradition-institute-comments-on-virginia-supreme-court-decision/
Douglas Keenan: Yes, I spotted that. ATI have effectively turned the UVa's win into a Pyrrhic victory for, in order for the University to show that the data could not be subpoenaed for a civil suit, they had to admit that the data existed, making it effectively FOI-able. Magic! (But the thought occurs: is there a time limit on FOI requests in the US?)
It is hard to believe just how teflon coated the hockey team is. With the public conscience screaming for accountability in all things, how is it that they can so consistentently get away with whitewash, lack of investigation and favourable treatment? They obviously have plenty of sympathy in the right quarters.
Well, it's called The Law drongo. I very much doubt it's ever been tested quite in this way before, so you know, I'm not really surprised by this.
Well, the academic freedom of Mann is safe in his own fortress.
An interesting legal case. This means that one must merely insert the words "suspected fraud" and they may obtain the emails via the statute. Plus, how odd is the VA judges seem to think that it's OK to hide behind a "non-person" to block investigation into fraud, lies and deceit in order to obtain public funds. It seems to indicate the VA judges, presuming they're thinking at all, just don't like the statute but are afraid to tip their hand so the legislature can fix it.
Perfect for the Left. Have a government start a university, feed it millions and millions and millions of public money only to find the government has no power to look at what they're doing with all that money. Brussels must be laughing over lunch today.
If the State Attorney General does not have the authority to subpoena these records, has anyone?
If not, then the university is free to spend public money in any way it chooses - free of public scrutiny.
This ruling should have stated who, if anyone, has the authority. Someone else could spend months or years trying to get the records only to be told by the VA Supreme Court, at a very late stage in the proceedings, that they also 'lacked the authority'!
There is a possible confounding of concerns here. The technical one of possible fraud, and the possibly more important one of intellectual deception. Perhaps there is even a third concern connected with Mann as a person. Was Mann chosen and groomed to be a key public player in the production of the hockey stick? Has he lived a charmed life since? Is he a bit of a fantasist as a result, or was that a possibility spotted before all this? I think it would be too much to hope that the university emails would finally confirm or refute of any of these speculations, but they might have helped. And of course there is the immediate issue of whether funds were obtained fraudulently - the focus of Cuccinelli's case. The idea of an organisation's emails being plucked from their computers, or wherever else they may reside, for public inspection is a very unappealing one. The release of the climategate emails has not proven crucial, merely providing detailed support for what what already known or strongly suspected about the devious behaviours and weak positions of some of the players in that particular set of productions. These were not impressive actions. But I think their public works and pronouncements ought to be enough to condemn them as rascals and/or intellectual and moral lights of considerable dimness. That said, when there is a prima facie case for fraudulent obtaining of public funds then it seems reasonable for due process of law to be applied, as it has been in this case. Part at least of the judgement just announced seems to rely on the technicality of whether a state agency can be classed as a valid target for a subpoena. To quote from the link given by the Bish:
'Albemarle County Circuit Judge Paul Peatross ruled in August 2010 that Cuccinelli failed to adequately state what Mann might have done wrong, and that he lacked authority to investigate federal grants. Cuccinelli appealed to the Supreme Court. The justices cited a different reason for ruling against Cuccinelli, saying he lacked authority under the Virginia Fraud Against Taxpayers Act to issue a civil investigative demand against U.Va. because it is a state agency. The court disagreed with the attorney general's claim that the university can be considered a "person" subject to subpoena under the anti-fraud law. After Peatross voided Cuccinelli's original demand, the attorney general filed a more specific one that pertains only to a single $214,000 state grant. Another judge put that demand on hold until after the Supreme Court decision. Cuccinelli said Friday he will ask the court to dismiss that investigative demand.'
Looks like there is still further for this to run, with lots of interest all round because of the various associated concerns such as those I suggest at the start of this comment. It is all so unfortunate. But what can we do? We have observed an astonishing political impact of climate alarm over the last 30 years or so, an impact out of all proportion to the substance of the case presented for it, and one which has already led to substantial harm. This is very much a political issue, indeed a life or death issue especially for the world's poorest people, and it seems to be appropriate for all civil and decent avenues of investigation and debate to be pursued with great urgency, including whenever appropriate, legal actions.
Bish, I recall that you have been against Cuccinelli's action from the outset, as was Steve Macintyre.
I don't recall your specific reason but certainly it was not based on the finding that certain entities of the Commonwealth of Virginia are not subject to Civil Investigative Demand because of the way the statute is currently written. The ruling in Virgina is the narrow technical equivalent of the egregious FOIA breaches at UEA not being enforceable due to the expiration of the absurd 6-month statute of limitations.
I doubt that Cuccinelli will attempt a different legal approach to obtain the records and emails. But the Virginia legislature does have a notable (and recent) record of amending its statutes to rein-in the rogue behavior of state entities. If recent history is any guide, I predict that there will be a legislative response to this ruling, and UVA will not escape so easily in the future.
As it stands, the ruling effectively puts all "Commonwealth" (e.g., state) entities out of the reach of the CID law, and the legislature won't let that stand for too long. The law will be amended.
The full judgement can be found here (pdf):
http://junksciencecom.files.wordpress.com/2012/03/1102359.pdf
It's an interesting read in statutory interpretation - in essence, this judgement could have gone either way, as represented in Justice McClanahan's dissenting opinion as to whether UVA could be considered a "person" for the purposes of the legislation.
His analysis of the absurd result arising from the outcome here is, in my opinion, compelling.
A Gleickalike is needed to scam them out of the university.
David C - agent provocateur?
Geez, and I live in Virginia. So how is the AG supposed to investigate a State agency if the State agency refuses to provide information and the AG has no legal recourse to force the agency to provide it?
The content of the emails must be explosive for the "establishment" to go to such great lengths to keep them hidden.
It is just another of the many examples of where governments draft legislation so as to exempt themselves from it. UVa is part of the Commonwealth of Virginia, so that's that.
However, as ATI has pointed out, it may be an ill advised win in one battle at the expense of the war. And as a PP has mentioned, citizens and legislators of Virginia might be unimpressed to discover that the law exempts a whole bunch of publicly funded entities from fraud investigations.
Not to worry. There is a FOIA request to get the same information and data. The objections pose d by the U of VA to the lawsuit are irrelevant to the rules governing FOIA
http://www.telegraph.co.uk/news/politics/conservative/2059087/Can-the-Tories-survive-the-loss-of-Steve-Hilton.html
Bishop got a question
Now Steve Hilton has left
Who will Cameron get as his new spin doctor
And will this new bloke also have him riding around the Arctic on another dog sled
Putting to bed the biggest scam of all time will not, can not, and is not easy. Money Money Money rules in the Intergovernmental Panel of Climate Clowns (IPCC) backed by Bureaucratic Science (BS).
Thanks to Mann, Jones, Briffa et al.
We will win one day, 5 years 10 years 20 years 50 years who knows.......But we will win.
http://en.wikipedia.org/wiki/The_War_of_the_Worlds_%28radio_drama%29
Its got to be a primeval caveman instinct
Everyone looking out for a modern equivalent of a stalking sabre toothed tiger about to a attack
ONE LOUD SHOUT and you got a mass human stampede
And if there's nowhere to run to you got a mass panic instead
http://news.yahoo.com/mitt-romney-become-climate-change-skeptic-122400882.html
Last week won few quid on The Artist at the Oscars at Ladbrooks
Same time Mitt Rommney was 10 -1 for the Republican Nomination at Paddy Power
Hes won a load of Primaries and at Paddy Power he is now down at 2-1
Should have stuck £50 on him last week
Well gutted
Watched Pannorama few weeks back
The people in the tented cities outside Detroit
Stick my neck out Obama
Being the first black president and killing Osama
Wont save him
£100 on Rommney for the White House
AGW fanaticism consumes everything in its path. Ethics, rational thinking, integrity, common sense, history, data. Judges are apparently not immune.
As evermore, Poe. The Red Death vs the Masked Mann.
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A Mann with nothing to hide would release the emails. Let's hope a FOI request can now prise them from his grasp.
So much for the myth of the rule of law in the US. The sovereign's university is, centuries after the American revolution and their much vaunted declaration of independence and preference for the rule of law, still above the law and all other citizens. Have they forgotten what the beheading of Charles I symbolised for later generations? The king or executive should not be placed above the law of the land. Where are the concerned citizen's demonstrating against this abuse of sovereign privilege? Oops I forgot, the political left has double standards and supports this abuse. The stench of rank hypocricy is just too much to bear ...
Cuccinelli's shameless barratry deserves disbarment.
For what, doing his job? Idiot.
I do have to wonder if he knew a priori what position UVa would force themselves into with FOI requests. They can no longer claim the documents do not exist nor can they claim they are not subject to FOI. Curious.
Mark
I read a commenter at CA who wrote that the case has proved that the emails exist and that the university is a state institution.
It follows from that, that the AO can then march into the uni, personally or by his appointed rpresentative or auditor and then look at the records without asking permission, just as he can in any other part of the state administration.
I don't knon if that would hold up in practice, but this may not been the end of the affair.
Being the Attorney-General doesn't give him the right to march in to any publicly funded organisation and start going through their files. Most likely whoever is in charge of education or perhaps public finance in Virginia could request an audit, but again that is not the same as personally digging around for stuff on a fishing expedition.