Tuesday, June 01, 2010

University of Virginia shows how many ways Cuccinelli doesn't have a case

Eli Rabett links to University of Virginia's decision to fight back against the denialist idiot state Attorney General's effort to harass the university and climate researchers (context here, the basic idea is to demand every document produced by researcher Michael Mann to see if they can claim a mistake equals fraud). It's just a petition asking the court to tell Cuccinelli to jump in a lake, and full briefing arguments will have to wait. Several things stand out, though.

As Eli had noticed elsewhere, four of the five grants used as the basis of the document demand weren't from the state but from the feds, so the university says the state fraudulent claim law is inapplicable. The fifth, state-funded grant was awarded in 2001, two years before the state law came into effect. Also, the investigative demand failed to state the nature of the conduct constituting the alleged violations of false claim (fraud) law, as required by the law.

The problems listed above may by themselves be enough to let UVa prevail, and they're certainly proof of embarrassing legal work by an incompetent hack (especially that last one). They may be fixable, though. If the federal grants "passed through" UVa instead of being a direct grant to Mann, then the state might be able claim an ownership interest in those grants. If the unversity-funded grant lasted longer than two years, the state might be able to claim the "fraud" occurred when the state law was in effect. Finally, the AG office could red-facedly reissue the demand that meets the letter of the law by stating what conduct constituted fraud.

I've left out the two best reasons for shutting down Cuccinelli, though. The investigative demand can only be issued if the AG has "reason to believe" that UVa has information relevant to a potential fraud, and the demand cannot be so broad as to be burdensome. Cuccinelli has no basis to believe that fraud has been committed and couldn't articulate a basis for fraud when asked. Demanding virtually every document Mann produced, in addition to being burdensome, is evidence that the AG doesn't have a claim and instead is on a fishing expedition to find something.

Cuccinelli might curl up and quit at this point, or he might fight it out. I don't know Virginia legal procedures, but the petition might already be assigned to a particular judge, so they can try and figure out what that judge is likely to do. Best case scenario is the judge/appellate judges write scathing decisions shutting Cuccinelli down for using his political power to harass scientific and political viewpoints he dislikes. Those opinions would be Exhibit 1 in an ethics complaint filed with the Virgina Bar Association. Get this joker disbarred.

UPDATE: Another potential consequence is for UVa to ask the presiding judge to sanction the AG for the frivolous investigative demand, and to repay UVa's attorney fees. Easier to get than an ethics action and embarrassing to the AG, but quite as consequential (UPDATED UPDATE: meant to write "not quite as consequential").

1 comment:

  1. Grants ALWAYS belong to the university. That being said, some of the Va state schools have research foundations which are not state institutions. The purpose of this is to avoid strange state accounting rules. It gets furiously complicated.


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