Virginia AG loses in Mann-UVA litigation — with prejudice

JunkScience reports:

The Virginia Supreme Court holds that the University of Virginia is not a “person” subject to a “Civil Investigative Demand” from the attorney general.

This means that UVa won’t have to produce Michael Mann’s Climategate e-mails and documents to Attorney General Ken Cuccinelli.

More, including the opinion document at here

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Ken Hall
March 2, 2012 7:52 am

Does that also mean that the University of Virginia also is not a “person” with the right to sue others?

March 2, 2012 8:07 am

And hiding their work behind a technicality of the law is going to increase public trust in climate “science” how?
Oh right. If we saw the “work” the whole scenario would be shot full of holes. Better to keep their mouths shut and be thought to be hiding malfeasance than to open their mouths and prove the point.

Philip Peake
March 2, 2012 8:15 am

As a non person, it cannot enter into contracts. I would expect funds to dry up immediately.
They may regret ever hearing the name of the smart ass lawyer that came up with that idea.

Tom E.
March 2, 2012 8:16 am

For purposes of FATA, a “person” is defined as “any natural person, corporation, firm, association, organization, partnership, limited liability company, business or trust.” Code § 8.01-216.2. Because this definition does not specifically include the agencies of the Commonwealth, UVA contends that it is not a “person” under FATA and therefore is not subject to CIDs.
Wow, just wow, how much broader can you get, I would think organization would pretty well cover anything.
I’m stunned.

mark wagner
March 2, 2012 8:16 am

They won. They were vindicated. See? They did nothing wrong. Yet another tribunal has found nothing wrong with their methods. Nothing to see here… move along.

March 2, 2012 8:17 am

Interesting, in light of the recent SCOTUS decision that effectively makes a corporation a “person”…
More interesting is the ramifications of this UVa decision…because it works both ways.

March 2, 2012 8:23 am

Plessy v. Ferguson was the 1896 landmark Supreme Court decision that allowed States to segregate people based on was a unanimous decision 9-0.
Sometimes the courts screw up. Just because the is ‘consensus’…I mean 9-0…everyone can agree…that is a consensus by most standards…it took over 50 years to overturn.
Stupid judges…

March 2, 2012 8:28 am

I suppose the Virginia AG could pursue a “criminal investigative demand,” if that’s what Mann and UVA would prefer.

March 2, 2012 8:31 am

Oops…7-1…it was overturned 9-0 in 1954…my bad.

March 2, 2012 8:34 am

So, this comes from a non-legal type, but, my questions are: (a) who provides over-sight of the university/university system on behalf of the citizens and (b) who investigates (from a legal and prosecutorial standpoint) potential violations white-collar (fraud, corruption) of law or misspending of taxpayer monies in this state?
Should there be no one else/no other governmental office who might be able to provide legal redress of actions taken by the university or there personnel, by default might that be the AG – or maybe the governor? Could the governor issue an executive order regarding the info sought?
I’ll admit, I have not been keeping track of this issue ..

Jimmy Haigh.
March 2, 2012 8:35 am

Ah well. I suppose they can’t lose ’em all…

March 2, 2012 8:41 am

Does this mean that the VA FOIA law is now gutted, since only individuals have to produce documents, and not organizations?

March 2, 2012 8:45 am

Darn shame. Are there any appeal routes left? Can he sue Dr Mann directly for the emails? Given the broad definition in the law I don’t understand the justices reasoning.

Pull My Finger
March 2, 2012 8:50 am

This will get appealed considering the US Supreme Court consistantly rules the exact opposite of this opinion.

March 2, 2012 8:56 am

Utter legal bull.

Pete H
March 2, 2012 8:56 am

Hang on, one rule for V/A….another for \Greenpeace? Or am I just on the wrong thread?

March 2, 2012 8:58 am

I have noticed over the past 25 years that “appellate judges” appointed by ANY liberal governor or US President for confirmation to a compliant (liberal) legislature will read first their liberal-socialist playscript and prejudices,
then read their (liberal-socialist ) law books and (overseas) precedence preferences,
then read the law,
then read the state or Federal Constitution …
They will then create new law from their prejudices.
The telling item is “who appointed them”?
If a democrat nominated the judge, then the litmus test for selection to that appointment has been Roe v Wade since the 1970’s. And their resulting rulings from that judge rarely vary from their liberal-socialist doctrine.
Regardless of what any inconvenient words in the actual constitution or law say.

March 2, 2012 8:59 am

When the tools of justice have been corrupted, there is no justice.

Colin in BC
March 2, 2012 9:05 am

Pretty clear the judge must be an AGW kool-ade drinker. RACookPE1978’s analysis above is spot on.

Mike M
March 2, 2012 9:06 am

This calls for an act of Congress and it’s really simple – every university that enjoys federal grant money from now on WILL OBEY FOIA or get no more grants! It’s their choice…

Jeff D.
March 2, 2012 9:10 am

So does this mean that UVA is immune to any civil suit brought against them? If a student is injured on campus by some neglect of the campus is the student now unable to bring a civil suit?

Susann M
March 2, 2012 9:12 am

Does this mean that UVA loses the right to free speech?

Vince Causey
March 2, 2012 9:17 am

A curious judgement, and one that seems erroneous. A person in legal terms does not mean specifically a human being and only a human being.
In UK tax law, there is something called a taxable person. It turns out that a taxable person may be an individual, or a corporation or any other association of individual persons who have come together for a common ends.
To claim that a university is not a person is, imo, applying a definition that seems to be totally literal, and not at all the intended meaning. Is there any way of appealing this?

March 2, 2012 9:24 am

What, exactly, is UVA and what laws apply to it?

Vince Causey
March 2, 2012 9:27 am

Reading more closely the judgement, pages 5 onwards, the judges appear to have ruled that UVA is a commonwealth, and not a corporation or association etc. If that is indeed the case – and they cited precedent – then it appears that any state university is immune from investigation by the state. Curious indeed.

Doubting Thomas
March 2, 2012 9:29 am

Looks like valid decision to me. States are generally immune from statute unless the language of the statute makes it clear that it specifically applies to the state. There may be some other approach the Virginia AG could take but the FOIA action from the American Tradition Institute (ATI) seems more likely to be successful. See Unfortunately, that could drag out until the end of this year.

March 2, 2012 9:54 am

This whole thing is just really, really bizarre (speaking as a Virginia taxpayer).
UVA is a state government institution. Why does the state government have to go through the courts to get UVA (one of its own departments!) to provide it with information?
I am not a lawyer, but it seems like UVA doesn’t have a leg to stand on. It answers to the Commonwealth’s government hierarchy just like any other government agency. This is like if the Virginia Department of Transportation (VDOT) decided it didn’t have to give the Governor access to road construction records. It doesn’t make sense.
I’m just amazed that there’s a debate over this. Yes, of course the state has the right to view records of work done by state employees, on the state’s time, on state equipment, at a state facility.

March 2, 2012 10:05 am

DJ, precedent for SCOTUS goes back to 1819 (Dartmouth College v. Woodward) and 1886 (Santa Clara County v. Southern Pacific Railroad). Good or bad, SCOTUS has been pretty consistent on this.

Ian W
March 2, 2012 10:11 am

It would appear that the University now has a ‘legal claim’ to say it is part of the State yet it has been spending money to prevent another part of the State having access to State’s records. This type of problem is normally solved in one of two ways:
* All payments and grants to the university are put into abeyance until the information is provided.
* The senior administrators of the university are provided with pink slips until the information is provided
* The university has its accreditation rescinded
The most likely is stopping State and Federal funding especially as it has been misused.

kadaka (KD Knoebel)
March 2, 2012 10:26 am

From the WaPo piece linked to at JunkScience:

“From the beginning, we have said that we were simply trying to review documents that are unquestionably state property to determine whether or not fraud had been committed,” Cuccinelli’s office said in an e-mailed response. “Today, the court effectively held that state agencies do not have to provide state-owned property to state investigators looking into potential fraud involving government funds.”

So the VA Supreme court ruled the left hand is not required to present its fingernails for inspection to the eyes, nor is the left hand obliged to let the right hand feel or trim or clean those fingernails.
Wow. I can imagine the noise here in Pennsylvania, echoing across the country and worldwide, if Penn State refused to provide documents to our Attorney General concerning Jerry Sandusky and whether their former employee (like Mann with UVa) did commit child sex abuse (like fraud, a crime) on university property (which is really state property). Hey, maybe Penn State can claim the Mann case as precedent to protect themselves and Sandusky. That would sure be popular.
I wonder how many convictions in Virginia will now be successfully appealed, that involved state agencies handing over info to the Attorney General when they weren’t required to thus they should have protected the interests of their employees. Ah heck, aren’t the State Police also a state investigative agency, thus state agencies don’t have to give them info as well? Notify the lawyers, smells like a class-action lawsuit is in the air.

Lady Life Grows = Esther Cook
March 2, 2012 11:16 am

Decisions like this make you wonder if the courts ever operate with integrity.
They must do things right some times.

Crispin in Frankfurt
March 2, 2012 11:19 am

@Doubting Thomas
” Unfortunately, that could drag out until the end of this year.”
I think that is the point.

March 2, 2012 11:30 am

@ Jim
_Jim says:
March 2, 2012 at 8:34 am
“So, this comes from a non-legal type, but, my questions are: (a) who provides over-sight of the university/university system on behalf of the citizens and (b) who investigates (from a legal and prosecutorial standpoint) potential violations white-collar (fraud, corruption) of law or misspending of taxpayer monies in this state?”
As a ‘non-legal type’, I never went to law school, but I did study Constitutional Law extensively as an undergrad, and professionally have dealt with various laws in the financial world for years…I will give you my 2 cents as a highly opinionated layman…
(a) Board of Regents/Trustees, State Legislatures, local LEO’s, State AG’s… The Fed’s can get involved only if Federal laws are involved, see 10th Amendment, lol. Federal grants = Feds can investigate, also the Feds are required to in force issues…sometimes…if the State’s fail. Note OJ Simpson, didn’t they go after The Juice for violating the victims civil rights? Also, the various Executive Branch Departments have Inspector Generals than ‘can’ investigate… ie, follow the money. They can then refer their finding to the appropriate enforcement authorities. It could be the FBI, or if they found that ‘counterfitting US Currency was happening, they call in the Treasury, at least they used too. If something was amiss on navigable waters, the Coast Guard might be called. They are are part of the Armed Forces, but not DoD, and they can arrest you, unlike the Army, Navy and Air Force.
(b) State monies, likely the AG, it could be Civil or Criminal. Fed monies, see (a)
Congress thinks they can investigate anything they want…and they have limited subpoena powers. Limited as in Sen Grassley can’t as he is the ranking minority member of a committee, but his House counterpart, Rep Issa, as a Chairperson can if it is in his purview.
Also, the Feds have used wire fraud, tax evasion and various racketeering statutes to put white collar people away. Elliot Ness, Treasury, takes down murdering mobster Al Capone on tax evasion, right? Big surprise…the Feds have more rules with more teeth now. But the current Administration has some influence. Note the Feds going after whistle blowers 6 times since 2009, using the Espionage Act. This is fairly unprecedented. ‘All the News that fit to print says’…
“The Espionage Act, enacted back in 1917 to punish those who gave aid to our enemies, was used three times in all the prior administrations to bring cases against government officials accused of providing classified information to the media. It has been used six times since the current president took office.”
So you never know what might happen…and I am sure some real legal type will put me in my place and point out any errors.

Mike Rossander
March 2, 2012 11:34 am

The quote from JunkScience (and the lead to this post and a number of the comments above) miss the relevant legal point. This has nothing to do with corporate “personhood”. The relevant issue is that UVa presented itself as an “agency of the Commonwealth” – that is, an arm of the government of Virginia.
The judge agreed with that characterization. UVa is (legally at least) more like the Bureau of Motor Vehicles than like a private corporation under Virginia law. You and I may find that result absurd but that’s a matter for the Legislature to sort out. The judge’s decision was hard to avoid given the laws on the books.
Based on that determination, the definition of “person” in FATA did NOT explicitly subject agencies of the government to its jurisdiction. (See the exact wording in Tom E’s post at top.) Yes, a normal person would see “organization” and assume that it includes the government and/or components thereof. That is a mistake. Laws affecting government agencies have to explicitly say so. See the top of page 7 of the judge’s opinion where he included citations to the relevant case law.
All this decision says is that UVa is a governmental agency and that the Attorney General did not have the legal grounds to demand the documents under that particular law.

Richard Sharpe
March 2, 2012 11:50 am

To a certain extent, now that GleikGate has occurred, the affairs of Mann are no longer of much interest, I would imagine.

Septic Matthew/Matthew R Marler
March 2, 2012 11:56 am

Shucks. Seems pretty decisive, though.
Mike Rossander: All this decision says is that UVa is a governmental agency and that the Attorney General did not have the legal grounds to demand the documents under that particular law.
Presumably (this is a guess) Cuccinelli took his best shot. Unless he flipped a coin (or some such whimsical procedure) to decide whether UVa is or isn’t a person, and now knows, don’t you think that this really kills his effort at disclosure?

More Soylent Green!
March 2, 2012 12:25 pm

kadaka (KD Knoebel) says:
March 2, 2012 at 10:26 am

Right on the money.

Robert Clemenzi
March 2, 2012 12:25 pm

This is nonsense – it should have never been a legal issue.
The state should just cut off UVA funding for one year and permanently stop funding the department that offers degrees in fake science. I don’t see any reason for taking this to court.

Reply to  Robert Clemenzi
March 2, 2012 1:12 pm

That would require larger amounts of Testicular Fortitude from the local politicians. It would require the Commonwealth’s political elite to actively work to defund their Alma Mater. Not to mention ‘dissing’ their Favorite Son, Tom Jefferson’s school. The AG’s office can at least argue that they were enforcing Commonwealth laws as they are required to do. Politicians often only worry about getting re-elected, at the expense of doing what is right.

March 2, 2012 12:33 pm

The Virginia Supreme Court is going to get a visit from the United States Supreme Court, and explain what ‘ORGANIZATION’ means to them.

Anthony H
March 2, 2012 12:55 pm

I actually took the time to read the decision, and it actually makes sense–one branch of Virginia government should not be using a Civil Investigative Demand upon another branch of the same government (for the limited purposes of this ruling, UVa is not a person but an agency of the Commonwealth). The ruling does not address other methodologies available to the Virginia Attorney General, but a State Grand Jury issuing a Grand Jury subpeona would be one route if there is suspicion that a criminal violation occurred. There may also be State financial audit procedures as well. Looking at this decision, the Attorney General should have exercised better judgment in deciding what process to use to obtain the information he required to conduct his inquiry. It’s pretty much well known (in govt circles) that one branch cannot serve an administrative subpoena upon another branch of the same government ; that’s like the left hand trying to pull an object out of the right hand without the right hand’s cooperation. UVa is correct to fight a CID. However, they should understand that they ultimately do not have the right to keep such publicly funded grants and the supporting documentation hidden from scrutiny. What’s disgusting is that in these tight financial times, UVa would waste taxpayers’ and students’ money fighting a case that eventually it MUST and will eventually lose. It should simply turn over the information upon request (e.g. a letter, FOIA, etc).

March 2, 2012 12:59 pm

Here is the law:
Not a “person” accept this little prevision where you don’t need to be a person:
No court shall have jurisdiction over an action brought under this article against any department, authority, board, bureau, commission, or agency of the Commonwealth, any political subdivision of the Commonwealth, a member of the General Assembly, a member of the judiciary, or an exempt official if the action is based on evidence or information known to the Commonwealth when the action was brought. For purposes of this section, “exempt official” means the Governor, Lieutenant Governor, Attorney General and the directors or members of any department, authority, board, bureau, commission or agency of the Commonwealth or any political subdivision of the Commonwealth.
Seems like the same old politics to me!

Frank Kotler
March 2, 2012 1:38 pm

Strange judgement. Are we sure this isn’t Gleick impersonating the judge? 🙂

More Soylent Green!
March 2, 2012 1:47 pm

This seems to be a narrow ruling on highly technical grounds. Obviously, the state should have oversight of expenditures and employee conduct. However, the AG must act within the laws passed by the legislature.
Surely there are other grounds on which to proceed.

March 2, 2012 1:50 pm

The cover up/whitewash strikes again. I’m afraid it’s not going to end when Obama ends. The rot in the force is deep, USA.

March 2, 2012 2:40 pm

Anthony H says: March 2, 2012 at 12:55 pm
“What’s disgusting is that in these tight financial times, UVa would waste taxpayers’ and students’ money fighting a case that eventually it MUST and will eventually lose.”

But they won. They were right. Cucci lost. He is the one wasting taxpayers money.

D. J. Hawkins
March 2, 2012 3:51 pm

Nick Stokes says:
March 2, 2012 at 2:40 pm
Anthony H says: March 2, 2012 at 12:55 pm
“What’s disgusting is that in these tight financial times, UVa would waste taxpayers’ and students’ money fighting a case that eventually it MUST and will eventually lose.”
But they won. They were right. Cucci lost. He is the one wasting taxpayers money.

Regardless of the merits, let us grant that the loser is guilty of “wasting the taxpayers money.” Like Schrodinger’s cat, you have to open the box to collapse the wave function to determine the result. We can’t know a priori who’s doing the “wasting.” But based on your previous postings, I’m guessing you wouldn’t have piped up had the result gone the other way.

Anthony H
March 2, 2012 4:22 pm

“But they won. They were right. Cucci lost. He is the one wasting taxpayers money.”
I thought about that as I wrote my post, but by refusing to turn over the information before a CID was issued and/or (after the CID was served) offering alternatives to the Attorney General on how the information could legally be released, UVa is ultimately responsible for wasting the money. Hence, I stand by my conclusion: UVa is wasting the taxpayers’/students’ money.

Reply to  Anthony H
March 2, 2012 5:08 pm

So thoughts on this…
Is this not, in a legal sense, analogous to the White House claiming Executive Privilege. In some cases it seems absurd, but if the President fails to assert Executive Privilege certain powers may be lost to future Presidents.
Was this a dumb mover by the AG? Or a necessary evil?

Tilo Reber
March 2, 2012 7:17 pm

Nick Stockes: “But they won. They were right.”
LOL. Surely you don’t think that the second sentence follows from the first, Nick.

March 2, 2012 8:18 pm

This will get appealed considering the US Supreme Court consistently rules the exact opposite of this opinion.
There’s very little chance the decision could be appealed to the US Supreme Court. Under our federal system, state courts have final say on the meaning of state laws.

March 2, 2012 8:52 pm

After reading the decision, I think it sounds reasonable, but the dissent presents what seems to me to be a very good argument that it’s wrong. The dissent quotes language from the statute that limits when actions can be brought against state agencies and officials. This language would obviously be superfluous if the law doesn’t apply to agencies and officials. A fundamental principle of statutory construction is that the statute shouldn’t be construed in a way that renders some language superfluous. The court’s majority didn’t address this problem with their analysis.

March 2, 2012 11:43 pm

Just pull the funding plug, then. If the UVa isn’t a “person”, it should have no use for money. Let it become independent of the state and see how their brand of “honest science” fares in the marketplace of universities.
Good luck, UVa.

March 3, 2012 2:38 am

MJW says:March 2, 2012 at 8:52 pm
“I think it sounds reasonable, but the dissent presents what seems to me to be a very good argument that it’s wrong.”

The dissenter concluded:
I would thus affirm the circuit court’s judgment setting aside the CIDs issued by the Attorney General to UVA, but, unlike the majority, I would do so without prejudice.
The majority didn’t rule on the lower courts broader reasons for rejecting the CJD’s (so they stand). The dissenter said they were right anyway.

John Kettlewell
March 3, 2012 7:08 am

The AG should just walk in and access the e-mails. Like I said in the other article, we do not live under a tribunal. Take your manpants, pull them up, and use your office to go get what you want. This is the worst thing that has become of our Public Officials. When you are in the right, then march on.

March 3, 2012 10:31 am

The majority didn’t rule on the lower courts broader reasons for rejecting the CJD’s (so they stand). The dissenter said they were right anyway.

Under the dissenter’s opinion, the AG could have rewritten the CIDs to make them meet the statute’s requirements.

Solomon Green
March 3, 2012 12:17 pm

I do not understand. Since UVA is now deemed to be a part of the commonewealth and not a totally independent body, why does Cucinelli not now ask to see the emails under a freedom of information act or similar?
In the UK the UEA probably has similar status to UVA but, as Mr. Holland and others have discovered, the emails held by UEA can be discovered under FOI procedure (so long as they have not been deliberately lost or destroyed). The exception apparently being if it is considered not to be in the public interest.

Bill H
March 4, 2012 7:08 am

well if UVA is part of the government and the commonwealth its agencies are subject to the AG’s query’s on demand.. thus they can not tell him no..
i say have the governor give an Executive order to produce…. as it is public and subject to the public records act..
I’d say a minor change in strategy is all that is necessary.. then watch them squirm out of that one..

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