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U-Va. goes to court to fight Cuccinelli's subpoena of ex-professor's documents

By Rosalind S. Helderman
Washington Post Staff Writer
Friday, May 28, 2010; B01

RICHMOND -- Virginia's flagship university went to court Thursday to fight an effort by Virginia Attorney Gen. Ken Cuccinelli II (R) to get documents from a former climate scientist at the school, an unusual confrontation that will test the bounds of academic freedom and result in the college facing down its own lawyer in court.

In a motion filed in Charlottesville, the University of Virginia argued that Cuccinelli's subpoena for papers and e-mail from global warming researcher Michael Mann exceeds the attorney general's authority under state law and intrudes on the rights of professors to pursue academic inquiry free from political pressure.

Cuccinelli, a vocal skeptic of global warming who is suing the Environmental Protection Agency over the issue, has said he is investigating whether Mann committed fraud by knowingly skewing data as he sought publicly funded grants for his research. Mann left U-Va. in 2005 and now works at Penn State.

Mann's case has been embraced by academics across the country, who wrote numerous letters encouraging the university founded by Thomas Jefferson to resist the attorney general. The university's governing board -- whose members were appointed by former governors Mark R. Warner and Timothy M. Kaine, both Democrats -- had first signaled that it would likely comply with the April order but then hired a major Washington law firm and prepared to take action.

University President John T. Casteen III said in a statement that Cuccinelli's order had "sent a chill through the Commonwealth's colleges and universities."

Although Virginia universities have at times tangled with political leaders in Richmond, several experts said legal action is a rare challenge by a public institution of the state's top law enforcement officer. It comes in response to the equally unusual action of a state attorney general using the legal process to compel his own client to produce documents.

Cuccinelli issued a civil investigative demand, essentially a subpoena, under a 2002 state statute designed to catch government employees defrauding the public out of tax dollars.

"It's a rarity, and it should not happen often," said former attorney general Jerry Kilgore (R). "The universities are state agencies, and they're your clients. And attorneys general do everything they can to avoid being on opposite sides of their clients."

Mark Rozell, a public policy professor at George Mason University, called the conflict an "extraordinary situation" and one that will be closely followed by First Amendment scholars nationally.

Cuccinelli has sought information about five grant applications Mann prepared before leaving the university, as well as all e-mail between Mann and his research assistants, secretaries and 39 other scientists across the country.

Cuccinelli has repeatedly denied that he is targeting Mann's work because of his scientific findings and has promised an objective review of any documents turned over by the university.

Mann is best known as the author of the "hockey-stick" graph, which showed there has been a rapid, recent rise in the Earth's temperature. Mann's work has long been under attack by global-warming skeptics, particularly after an e-mail between scientists and referring to a statistical "trick" he used in his research surfaced in a series of leaked e-mails from the University of East Anglia's Climatic Research Unit. Mann has said the e-mail was taken out of context. Some of his methodologies have been criticized by other scientists, but an inquiry by Penn State concluded that there was no evidence Mann engaged in efforts to falsify or suppress data.

In an interview earlier this week, Cuccinelli said he expected that U-Va. would go to court.

"We expect when it's all said and done we'll have proceeded in a fairly civil and reasonable fashion and proceeded with a very limited request for information that addresses whether or not we've got, or should, have fraud concerns," he said.

Cuccinelli said Thursday that he will respond to the petition after reviewing it thoroughly.

Sheldon Steinbach, a lawyer who represented the American Council on Education for 37 years, called Cuccinelli's use of a fraud statute to investigate academic grants "novel."

But he defended Cuccinelli's action. "Sometimes upon more-detailed explanation you might determine people have, indeed, cooked the books," Steinbach said.

Cuccinelli had already granted the college more time to compile the records and whittled his demand by eliminating some e-mail. But professors have insisted that any compliance would send a message to professors engaged in controversial research.

"Just in asking for the documents and the interrogatories, you've already had the effect of chilling First Amendment conduct at the university," said Richard C. Schragger, a professor of law at U-Va. who drafted a letter signed by 38 other law school faculty members urging the administration to fight Cuccinelli.

Besides First Amendment issues, the university also argued Thursday that Cuccinelli failed to spell out the conduct that allegedly violated the Virginia fraud statute, as required by the law. The school also noted that of the five grants totaling $466,000 that Cuccinelli named in his request, all but one were federal, not state, grants. The one state grant came in 2001, before the fraud statute took effect.

The university's court action was praised Thursday by the Union of Concerned Scientists, the American Association of University Professors, the American Civil Liberties Union and Mann, who said the school was standing up "against the harassment of scientists by policymakers with a potential agenda."

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