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Judge rejects Ken Cuccinelli's probe of U-Va. global warming records

By Rosalind S. Helderman
Washington Post Staff Writer
Tuesday, August 31, 2010; B01

RICHMOND -- A Virginia judge on Monday dismissed a civil subpoena issued by Attorney General Ken Cuccinelli II to the University of Virginia that had sought documents related to the work of a global warming scientist and former university professor.

Retired Albemarle County Circuit Court Judge Paul M. Peatross Jr. sided with the university, which had been resisting Cuccinelli's demand, ruling that Cuccinelli had failed to state an objective reason to believe that professor Michael Mann committed fraud as he sought public grants to fund his research.

Peatross left open the possibility that Cuccinelli could issue two identical "civil investigative demands," essentially civil subpoenas, if he provided more information in the documents to back up allegations that Mann might have committed fraud. He agreed with Cuccinelli that the public university is an appropriate subject for such demands.

"What the Attorney General suspects that Dr. Mann did that was false or fraudulent in obtaining the funds from the Commonwealth is simply not stated," Peatross wrote in a six-page ruling.

Mann and his supporters cast the ruling as a victory for academic freedom and a sign that Cuccinelli's pursuit of the documents has been a politically motivated inquiry with thin legal backing.

"It is a victory not just for me and the university, but for all scientists who live in fear that they may be subject to a politically-motivated witch hunt when their research findings prove inconvenient to powerful vested interests," said Mann, who left U-Va. in 2005 and works at Penn State University.

But Cuccinelli, a vocal global warming skeptic who has contended that climate scientists have colluded to skew data, said he thinks that the documents are key to deciding whether to launch a fraud investigation into Mann's work. He said he plans to reissue the demand, crafting it with the judge's ruling in mind. He indicated that he might appeal portions of the ruling.

"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.

Mann, whose research has showed that the Earth has experienced a recent, rapid warming, has long been under attack by those who doubt global warming, particularly after his work was referenced in a series of leaked e-mails from the University of East Anglia's Climatic Research Unit.

Fellow scientists have criticized some aspects of his work, but an inquiry by Penn State recently concluded that Mann has engaged in no efforts to falsify or suppress data.

Cuccinelli issued the civil investigative demand in April, seeking five grant applications Mann prepared, as well as all e-mail traffic since 1999 between Mann and his research assistants, secretaries and 39 other scientists across the country.

He issued the demand under the Virginia Fraud Against Taxpayers Act, a 2002 law designed to root out fraud by state employees. Peatross expressed skepticism of Cuccinelli's underlying claim about Mann, as expressed by Cuccinelli's deputies in court filings and oral arguments on the issue this month, and wrote that Cuccinelli failed to state his rationale in the April subpoena.

"The Court has read with care those pages and understands the controversy regarding Dr. Mann's work on the issue of global warming. However, it is not clear what he did was misleading, false or fraudulent in obtaining funds from the Commonwealth of Virginia," Peatross wrote.

Peatross also said Cuccinelli could ask about only one of the five grants issued to Mann that the attorney general has been seeking to investigate because the other four involved federal funds instead of state money.

A statement from the university indicated that officials there were "pleased and gratified" by the judge's ruling, noting that the university's case was bolstered by support from its board of visitors and "individuals and groups around the country who let their voices be heard on this issue."

The case has been embraced nationally by scientists and academics, and by others who saw it as a test of academic freedom and had encouraged U-Va. to hire outside counsel and fight Cuccinelli's inquiry.

"This is vindication of the fact that there's no case there," said Michael Halpern, project manager for the Union of Concerned Scientists.

Cuccinelli's decision to press the issue means the legal battle between the controversial attorney general and the state's flagship university, technically his client, will continue.

In coming months, Cuccinelli will face courtroom verdicts on a number of high-profile legal battles he is pursuing that have made him one of the nation's most outspoken attorneys general, including a lawsuit challenging the Environmental Protection Agency's regulation of greenhouse gases and the constitutionality of the federal health-care law.

Courtroom losses are unlikely to hurt Cuccinelli with the conservative activists who are his most loyal supporters, said George Mason University political scientist Mark Rozell. But they could damage his reputation with independents.

"There's a segment in the middle of the electorate who hear noise from both ends, from people who are harshly critical of the AG and people who adore him," he said. "They're looking for something to balance both. And a legal decision has enormous credibility in the minds of most citizens."

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