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Judge puts Va. AG’s quest for records on hold

- Associated Press - Friday, September 9, 2011

CHARLOTTESVILLE, Va. — Attorney General Kenneth T. Cuccinelli II's latest demand for documents related to a former University of Virginia climate-change researcher's work was put on hold Friday by a judge who said she needs to wait until the Virginia Supreme Court rules in a related case.

Albemarle County Circuit Judge Cheryl Higgins' decision after a nearly two-hour hearing is a setback for Mr. Cuccinelli's investigation into whether Michael Mann defrauded state taxpayers by using manipulated data to obtain government grants.

Critics have assailed Mr. Cuccinelli's "civil investigative demands" as an attack on academic freedom and scientific research, but the attorney general says he is exercising his authority under the Virginia Fraud Against Taxpayers Act.

Another judge ruled last year that Mr. Cuccinelli was not specific enough about how Mr. Mann might have broken the law, and that he lacks authority to investigate federal grants.

Mr. Cuccinelli, a global warming skeptic, appealed that ruling to the Virginia Supreme Court and filed a new, more specific demand pertaining to just one $214,700 state grant.

"The level of detail in this CID is far more detailed than we would expect in an indictment for murder," Deputy Attorney General Wesley G. Russell Jr. told Judge Higgins.

Judge Higgins acknowledged that the new demand includes more details but put off a decision until the Supreme Court decides other disputes, including the university's claim that it is not subject to civil investigative demands under the state anti-fraud law. The Supreme Court received briefs in May but has not set a hearing date.

Jessica Ellsworth, an attorney for the university, said CIDs can be served on people and corporations but not state agencies and institutions. Had the General Assembly wanted to cover state institutions, she said, it would have specifically said so in the law.

Mr. Russell argued that the legislature intended for the attorney general to have broad investigative power under the fraud act, and that the university is defined as a corporation elsewhere in state law.

Chuck Rosenberg, another U.Va. attorney, told the judge that if the disputes are a close call she should come down on the side of academic freedom.

Mr. Russell said the issue is not the outcome of Mr. Mann's research, which supports the idea of manmade global warming, but whether he knowingly used false data and shoddy studies to obtain grant money.

"We are not investigating a mere academic dispute," Mr. Russell said.

More than 800 college faculty members in Virginia last year signed a letter protesting the investigation of Mr. Mann, who now works at Pennsylvania State University.

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