The University of Virginia has petitioned a state court to “set aside” Attorney General Cuccinelli’s not-so-civil Civil Investigative Demand that it turn over a mass of former UVa Prof. Michael Mann’s documents and e-mail correspondence with 39 other scientists. The university’s action shows some backbone and exemplifies the pushback we should see in responding to political witch hunts aimed at the science community. The petition defends academic freedom and indicates how Cuccinelli’s demands fail to meet the basic requirements of state law. See Details for petition text.
Full text of UVa petition here.
From the “Preliminary Statement” in the petition (see full text for footnotes and Factual and Procedural History.):
IN THE CIRCUIT COURT FOR THE COUNTY OF ALBEMARLE
THE RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA, Petitioner
KENNETH T. CUCCINELLI, II, ATTORNEY GENERAL OF VIRGINIA, Respondent
PETITION TO SET ASIDE CIVIL INVESTIGATIVE DEMANDS
ISSUED TO THE UNIVERSITY OF VIRGINIA
Dated May 27, 2010
Academic freedom is essential to the mission of our Nation’s institutions of higher learning and a core First Amendment concern.1 As Thomas Jefferson intended, the University of Virginia (the “University”) has a long and proud tradition of embracing the “illimitable freedom of the human mind” by fully endorsing and supporting faculty research and scholarly pursuits.2 Our Nation also has a long and proud tradition of limited government framed by enumerated powers, which Jefferson ardently believed was necessary for a civil society to endure.
The Civil Investigative Demands3 (“CIDs”) issued to the University by the Office of the Attorney General of Virginia (the “Attorney General”) threaten these bedrock principles. The CIDs are deficient under the Virginia Fraud Against Taxpayers Act, Va. Code § 8.01-216.1 et seq. (“FATA”), and their sweeping scope is certain to send a chill through the Commonwealth’s colleges and universities. For these reasons, the Rector and Visitors of the University of Virginia, pursuant to Va. Code § 8.01-216.18, respectfully petition this Court for an order setting aside the CIDs.
The CIDs at issue appear to be unprecedented. To the University’s knowledge, this is the first time that a Virginia Attorney General has used the limited authority under FATA to issue a CID in service of an investigation into scientific research conducted by a university faculty member. The CIDs identify Dr. Michael Mann, an Assistant Professor in the University’s Department of Environmental Science from 1999 to 2005, and his research on climate change, which was funded in part by four federal grants and one University grant all initially awarded between 2001 and 2003. The CIDs do not state why they identify Dr. Mann and his research, but the requests for information are sweeping in scope, seeking, among other things, all “data, materials, and communications that Dr. Mann created, presented or made in connection with or related to” the grants specified in the CIDs.
Under FATA, the Attorney General may issue a CID only if (i) the CID states “the nature of the conduct constituting the alleged violation of a false claims law that is under investigation,” and (ii) the Attorney General has “reason to believe” that the CID recipient has information about a violation of FATA. Va. Code Ann. §§ 8.01-216.10(A), 8.01-216.11. The CIDs meet neither requirement.
The CIDs do not state the nature of the conduct that could constitute a potential FATA violation. And for good reason. None of the five identified grants appears to implicate FATA.4 Four of the five grants were awarded by the federal government, not the Commonwealth. FATA extends only to allegations of false claims submitted for Commonwealth funds. The fifth grant was an internal University grant initially awarded in 2001. FATA did not become effective until 2003, see Virginia Acts 2002, c.842 (effective date January 1, 2003), and it does not apply retroactively. Given these circumstances, there is no objective “reason to believe” that the University has information about a FATA violation.
Furthermore, the expansive scope of the information requested in the CIDs likewise appears untethered to any potential FATA violation. Rather, the requests seek a voluminous body of academic and scientific information, documents and correspondence related to the merits of scientific research spanning a period of more than ten years. The nexus between these broad requests and the five identified grants (or any potential FATA violation) is unexplained.
The Attorney General has authority under FATA to issue CIDs in order to investigate potential violations of that statute — to root out fraud on the taxpayers of the Commonwealth. FATA does not authorize the Attorney General to engage in scientific debate or advance the Commonwealth’s positions in unrelated litigation about federal environmental policy and regulation. This is particularly true where, as here, the information requested goes to the core of academic research otherwise protected by law. Unfettered debate and the expression of conflicting ideas without fear of reprisal are the cornerstones of academic freedom; they consequently are carefully guarded First Amendment concerns. Investigating the merits of a university researcher’s methodology, results, and conclusions (on climate change or any topic) goes far beyond the Attorney General’s limited statutory power. The CIDs at issue thus exceed the limited investigative authority granted to the Attorney General under FATA. Permitting them to be used in the sweeping fashion attempted here would impair academic freedom in the Commonwealth.
For these reasons, and the grounds identified herein, the CIDs should be set aside.
Background from earlier CSW posts:
May 5: Free the Cuccinelli 40: Virginia AG demands e-mails of Michael Mann and 39 other scientists
Virginia’s combative right-wing state Attorney General Ken Cuccinelli has issued a “Civil Investigative Demand” calling on the University of Virginia to turn over a large quantity of material about climate scientist Michael Mann, who was at the University during 1999-2005. Among the documents he is demanding are all e-mail and other communications to or from Mann and 39 other scientists, or referencing them. This latest McCarthyite inquisition, by yet another agent of the global warming denial machine, is taking fire even from climate ‘skeptics’ who are no friends of Mann. It sends a chilling message about academic freedom and the freedom of scientists and others to communicate with each other without fear that their communications will be published.)
May 21: Nine ways to undermine Virginia AG Cuccinelli’s McCarthyite demand for scientists’ communication
Virginia Attorney General Ken Cuccinelli’s effort to subpoena Prof. Michael Mann’s documents and e-mail correspondence with 39 other scientists would establish a precedent for essentially destroying the ability of university faculty to correspond with colleagues with any sense of confidentiality—a terrible precedent if it is allowed to succeed. To oppose Cuccinelli’s action with pushback on multiple fronts, we can think of at least nine kinds of action that can be taken – by Prof. Mann, by the University of Virginia, by the science community, by the media, and by others. Fortunately, a number of such appropriate actions are already being taken or are under consideration.
Our recommendation #2 was: “The University of Virginia can explore its legal options for fighting the subpoena and should seek to defend university faculty by resisting Cuccinelli’s demands using any appropriate legal means.”
Also see: Press release from our friends at the Union of Concerned Scientists here. The press release also contains links to an updated letter signed by more than 900 Virginia scientists and academics, urging Cuccinelli to drop his investigation; a timeline of events related to the investigation; and a UCS backgrounder explaining why the investigation is misguided and dangerous.