Mann-Steyn lawsuit judge inverts the defendants actions, botches ruling

Last week there was lots of jubilation in the Mann-world PR headquarters because a judge had ruled that his defamation lawsuit could proceed. Except, there’s this inconvenient glitch. It seems that the judge got the actions of the two defendants mixed up in the ruling, kinda like that upside down Tiljander proxy thing.

From Andrew Lawtons “Landmark Report“:

Dazed and Confused: Steyn files motion for reconsideration on Mann lawsuit based on Clinton judge’s error in fact

Below are the public court documents submitted by Mark Steyn’s attorney moving for reconsideration by Clinton-appointed D.C. Judge Natalia M. Combs Greene as a result of her decision to allow the lawsuit by climate scientist Michael Mann against Mark Steyn and National Review to proceed.

Interestingly, it appears that Judge Combs Greene has mixed-up the defendants in the court’s ruling, attributing actions taken by the Consumer Enterprise Institution [sic] to Mark Steyn and National Review.

Mann v. National Review – Reconsideration Motion (fr0m Scribd)

Defendants National Review, Inc. (“National Review”) and Mark Steyn respectfully request that the Court reconsider its July 19, 2013 Order denying their prior motions to dismiss(the “Order”). A proposed order is attached.First, and as set forth in the accompanying Memorandum of Points and Authorities, theOrder appears to be based in part on material mistakes of fact. Specifically, the Order conflates the conduct of co-defendant Competitive Enterprise Institute (“CEI”) with that of National Review and Steyn, who never  petitioned the Environmental Protection Agency to investigate Plaintiff or otherwise pressured the agency concerning Plaintiff’s research. Similarly, National Review and Steyndid not criticize Plaintiff’s scientific research for years, as CEI did. Nevertheless, the Order relies on these points to bolster its conclusion that National Review’s brief criticism of Plaintiff’s research was defamatory speech, not protected rhetorical hyperbole. See Order, at 17. (“On the other hand, when one takes into account all of the statements and accusations made over the years, the constant requests for investigations of Plaintiff’s work, the alleged defamatory statements appear less akin to ‘rhetorical hyperbole’ and more as factual assertions.”). In addition, the Order relies on these erroneous facts in concluding Plaintiff met his burden under the Anti-SLAPP Act of demonstrating that National Review published the statements at issue with actual malice. Indeed, the Order asserts that several investigations of Plaintiff’s work were prompted by allegations leveled by National Review and Steyn. See Order, at 21 (“It follows that if anyone should be aware of the accuracy (or findings that the work of Plaintiff is sound), it would be the NR Defendants.”). Yet there are no facts –in the record or otherwise –that suggest National Review and Steyn ever called for or prompted any investigation of Plaintiff’s research. Consequently, the Order should be reconsidered in light of the apparent confusion of facts pertaining to each set of Defendants.

Given that sort of quality judicial work, I suppose it is no surprise that Judge Natalia M. Combs Greene is rated in the bottom ten judges of the Washington D.C. area by the Robing Report.

mann_judge_bottom

The comments left about her professionalism are quite something.

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LamontT

It isn’t a surprise that she found a reason to uphold Mann. What is a surprise is that she botched it so badly.

Can we have that in English or at least structured in such that its easier to read and understand? I understand the original expression needs to be in legal gobbledygook for judges but some expression for humans would help.

Other_Andy

Judge Natalia M. Combs Greene……
You should read the comments, 23 of them and not one positive one.

Cynical Scientst

A good rule of thumb is that the initial rulings in any case in the US will always have the effect of prolonging litigation, even if the facts and the law have to be bent completely out of shape in order to manage it (as seems to be the case here). If cases were able to be settled on the first motion then litigants might manage to escape from the clutches of the court system with money still in their pockets – money that could go into the pockets of a deserving lawyer.

Skipio Australis

I’m not sure how it is in the US, but in Australia, truth is a complete defence to defamation. If Mann plans to sue for defamation, then any plaintiff should be able to use discovery to prove their defence, something more powerful than FOI. Wouldn’t this be something Professor Mann would want to avoid or am I missing the point?

Doug UK

The comments on her at “The Robing Room” are nothing short of stunning. How can a Judge not be challenged with feedback like that?
But perhaps she has been challenged – looks like she “retired” a month or so ago:-
http://legaltimes.typepad.com/files/vacancy-anouncement-for-greene.pdf

Kim Swain

Apparently the Honorable Judge is retiring in September – http://legaltimes.typepad.com/files/vacancy-anouncement-for-greene.pdf

I read the comments – I’m shocked. There should be a way to get rid of incompetent judges. someone should sit in occasionally (unannounced) and judge them!

Man Bearpig

They need Judge Judy !

Reading the comments about the judge was interesting. Clearly she’s openly pro-government. In UK the magistrates and judges are covertly pro-government. The results are the same either way.

knr

The bottom line is the day Mann is told show us the proof and expect to get challenged on it , is the day ‘the fossil fuel funding conspiracy’ means he has to pull out .
But one day his ego is going to get the better of him , its far to massive no to , and he will find he rush to court without an escape route .

If one didn’t know better, reading between the lines, one might be inclined to wonder if the Mann himself (never known to be one who is too concerned with facts) had written the rejection ruling for her!
P.S. From the Andrew Lawton page linked to in the head post, you can actually download each of the scribd texts as a .pdf – .Paragraph breaks and double spacing make them somewhat easier on the eyes!
Most of the “meat” is in the file named “155983644-Mann-v-National-Review-Supporting-Memo.pdf”.
Be sure to take a look at the last page, Exhibit 1 (which had evidently been presented during oral arguments re Mann’s whines about Steyn/NR’s use of “fraudulent” and “bogus”) “THE CLIMATE CHANGE DEBATE IN MANN’S OWN WORDS”, is a very handy compilation from Mann’s opus, self-aggrandizing opus, which should have been called Portrait of the Artist as an Aggrieved Mann

We have a legal system, not a justice system. There is a real scandal brewing in New Zealand where a woman pretended to be a judge for 13 months after she had been compulsorily retired. She ruled on a wind farm giving it a binding consent. The government is in full lock down over this and is covering it up, but the corruption is now on public display. This appalling judge has her twin in NZ. Details here.
http://turiteadocuments.wordpress.com/turitea-wind-farm-documents/

charles nelson

Q. Why is that lawyer buried up to his neck in sand?
A. We ran out of sand.

tlitb1

I agree with cloa5132013, I have no idea what is supposed to be shown here except some subjective opinion that the Judge is wrong. If the defendant’s lawyers couldn’t have already spotted this alleged error themselves then they are doomed.

tlitb1

Though I read more carefully now and see that is what the lawyers are doing, claiming the Judge has made a mistake in a motion.

TerryS

> I have no idea what is supposed to be shown here except some subjective opinion that the Judge is wrong.
When the Judge allowed the action against National Review and Steyn, she said that one of the reasons she allowed it was “On the other hand, when one takes into account all of the statements and accusations made over the years, the constant requests for investigations of Plaintiff’s work, the alleged defamatory statements appear less akin to ‘rhetorical hyperbole’ and more as factual assertions.”. The problem is that Steyn and National Review haven’t engaged in this. It is the Consumer Enterprise Institution that has been doing this.
This isn’t a subjective opinion. The Judge wrongly ascribed actions to Steyn and National Review

wayne Job

We also have political appointments of high court judges in Australia, it is the lefts way of putting them beyond the reach of answering questions when they know too much.

climatereason

I would consider I have a good grasp of English but the statement cited in the article was confusing. I dare say the legal arguments were confusing. I dare say the judges ruling was confusing.
We shouldn’t need lawyers to convey a meaning that can then be misinterpreted. it should be in plain simple English.
I read numerous science articles as research for my various articles. Exactly the same problem exists with a very large percentage of them. I read the science paper and quite often at the end I have no idea of what their conclusions are. Perhaps trying to confuse the plebs with obscure language is a deliberate tactic of the legal profession AND climate scientists?
tonyb

Mods,
I seem to have said a “bad” word in my July 30, 2013 at 12:41 am comment-1374967 – as the view from here, so to speak, is that it’s stuck in moderation (or maybe even landed in your spam-trap?!) Perhaps if you have a moment, you could fish it out.
Thanks.
Hilary

temp

In basic this is how it breaks down.
Real world: CEI says mann is a lying, cheating douchebag and should be investigated, tried, and thrown in a very small room with the key never to see the light of day.
Legal brief as filed from the judges says:
Mark steyn said that mann is a lying, cheating douchebag and should be investigated, tried, and thrown in a very small room with the key never to see the light of day.
AKA she’s putting false words in his mouth. In all truth not sure why steyn lawyers are fighting this at this point. I would think a better option would be to run mann into the ground first and if it looked like things were going badly then break this out and restart the trial. It would have probably been better if they just ignored it for now.

Simon

Gotta say I am pleased this is going further. Will be interesting to follow.

temp

Simon says:
July 30, 2013 at 1:37 am
“Gotta say I am pleased this is going further. Will be interesting to follow.”
Same… the amount of data that will be release will make climategate seem like a floppy disk…
However speaking of lawsuits and news… what about bob tisdale’s suit? I know he personally has to be semi-quiet about it but surprised we’ve heard nothing at all. Is mann still refusing to release the data requested? As well as any other updated info.

Sam the First

The comments on this judge are seriously scary to read. It’s shocking that litigants and defendants can be subjected to such arbitrary legal process. I was esp shocked by this:
“… she controls every aspect of the case to ensure the outcome she wants, when confronted she states that the jury will be informed not to let her bias interfere with their duties”. Amazing.

johanna

Can any US readers tell us whether, given Greene’s impending retirement, that means the case proper (if it goes forward) will be heard by another judge?
As for those who want Steyn et al to push for a trial (instead of a dismissal of this absurd travesty) in order to “prove” something or other, I suggest you put up a couple or three million for legal fees and possible damages and subsequent appeals if you believe so strongly. Defamation is a lottery, as Greene’s incoherent and factually incorrect preliminary findings demonstrate. No-one in their right mind encourages a lawsuit against them, especially in this area of the law.

Is there more than one group with the initials CEI? I have never head of the one starting with Consumer.

Henry Galt

Sam the First says:
July 30, 2013 at 2:15 am
She is not even in the bottom five judges of the Washington D.C. area by the Robing Report.
And this-
“… take me to the Court of Appeals, if your client can afford it…. ”
Nice.

FerdinandAkin

I can see it now. The Church of Global Warming will be screaming to the roof tops:
“Steyn walks on a technicality, justice denied for Mann!”
There will be protests in the streets. Vigils with people carrying signs chanting:
“Justice for Mann, Justice for Mann”
There will be calls for the Federal Government to file a civil rights suit against Steyn.

TerryS says: July 30, 2013 at 1:13 am
‘When the Judge allowed the action against National Review and Steyn, she said that one of the reasons she allowed it was “On the other hand, when one takes into account all of the statements and accusations made over the years, the constant requests for investigations of Plaintiff’s work, the alleged defamatory statements appear less akin to ‘rhetorical hyperbole’ and more as factual assertions.”. The problem is that Steyn and National Review haven’t engaged in this. It is the Consumer Enterprise Institution that has been doing this.’
Did she say Steyn/NRO had been doing it? It seems to me she’s saying that in the light of those events (whoever did it) the language is likely to be interpreted as an allegation of fact.

johanna

Hi Nick! Here to try your luck at legal argument?
Steyn’s lawyers filed for dismissal of the motion against Steyn because (among other things) the dopey judge attributed things to Steyn that had been done by someone else – in this case, CEI. Even in the sometimes weird world of defamation law, you can’t be sued for something someone else did.
Comprende?

johanna

Sorry, should be filed for a review of her decision to allow the case to proceed. The motion for dismissal decision was the thing she screwed up.

Bruce

One of the commenters at Think Progress (sic) says, “This decision gives the CEI the right to ask for the emails currently being held back by the UVa under rules of discovery. It will also allow them to challenge the inquiries before a judge.
It is a Phyrric victory.”
Is that the case? Will CEI be able to get their hands on the emails?

cedarhill

Rule 60 may allow an appellate court to correct the order. Usually, such orders are just collected for appeal after a final order. My guess would be if the judge will find something since an error in material fact would avoid the interlocutory rule and they’d appeal immediately.
As to whether she’ll continue after “retirement”? They usually call them “senior” judges and many continue. I.E., it’s politics. One would likely win a bet that barring physical infirmity or illness, she’ll continue.
Obtw, Federal judges are, for the most part, as close to God on Earth as one will ever encounter.

Geckko

So presumably, by the Judge’s ruling, Mann now has a get out of (should that be get into?) jail free card that can be deployed against any satarist who employ “protected rhetorical hyperbole” because one entity, the CEI, has been badgering him.

Glenn

Why is CEI a co-defendant with Steyn?
Is there a lawyer in the house?

johanna says: July 30, 2013 at 3:01 am
“the dopey judge attributed things to Steyn that had been done by someone else – in this case, CEI”
.
Where?
“Even in the sometimes weird world of defamation law, you can’t be sued for something someone else did.”
They are’nt being sued for requesting investigations etc. They are being sued for words they published. And the judge is talking about how those words would be interpreted.

Rob MW

Johanna – @ July 30, 2013 at 3:01 am
But in Nick’s world you can be sued for something you did not do, just look at poor ole’ CO2.

Tucci78

At 11:58 PM on 29 July, Skipio Australis had written:

I’m not sure how it is in the US, but in Australia, truth is a complete defence to defamation. If Mann plans to sue for defamation, then any plaintiff should be able to use discovery to prove their defence, something more powerful than FOI. Wouldn’t this be something Professor Mann would want to avoid or am I missing the point?

Not being a lawyer myself (but rather a physician and therefore representative of an ATLA prey species), I’m not intimately familiar with the Kabuki theater proceduralism that makes of our legal system in these United States the friggin’ disgrace it has been throughout my lifetime, but even though in justice the kind of toxic waste dumped by Michael Mann on Steyn et al. in the form of this lawsuit should entitle the victims to the sorts of discovery that would indeed see Mikey “investigated, tried, and thrown in a very small room with the key never to see the light of day,” a judge willing and eager to maintain the “Liberal” fascist utility of the preposterously bogus horsepuckey peddled by credentialed incompetents and fraudsters like the Hockey Stick Hoser can and will quite flagrantly violate every canon of her profession, not to mention those standards of moral conduct to which even self-respecting child molesters hew.
Witness the prosecutorial misconduct (and judicial complicity) in suppressio veri, suggestio falsi regarding the sociopathic personal past history of the sainted Trayvon Martin in the recently adjudicated criminal case against Martin’s victim, George Zimmerman.
==========

I propose that it shall be no longer malum in se for a citizen to pummel, cowhide, kick, gouge, cut, wound, bruise, maim, burn, club, bastinado, flay, or even lynch a [government] jobholder, and that it shall be malum prohibitum only to the extent that the punishment exceeds the jobholder’s deserts. The amount of this excess, if any, may be determined very conveniently by a petit jury, as other questions of guilt are now determined. The flogged judge, or Congressman, or other jobholder, on being discharged from hospital — or his chief heir, in case he has perished — goes before a grand jury and makes a complaint, and, if a true bill is found, a petit jury is empaneled and all the evidence is put before it. If it decides that the jobholder deserves the punishment inflicted upon him, the citizen who inflicted it is acquitted with honor. If, on the contrary, it decides that this punishment was excessive, then the citizen is adjudged guilty of assault, mayhem, murder, or whatever it is, in a degree apportioned to the difference between what the jobholder deserved and what he got, and punishment for that excess follows in the usual course.

— H.L. Mencken

jimmi_the_dalek

So CEI and Steyn/NRO are pointing at each other and saying “It was them wot did it”. Doesn’t bode well for their cases.

steveta_uk

Damn, I hate to agree with Nick, but he may be right in this case.
Instead of just reading the extracts above, read the section from the Judge’s order. It makes it clear that since Stein directly references the CEI article, the CEI history has to be taken into account in interpreting Stein’s words.
(sorry if this is double posted – something went weird with WUWT just now, so I’m not sure what happened).

Tucci78

At 3:32 AM on 30 July, Nick Stokes had grabbed from out’n his tochus:

They are’nt being sued for requesting investigations etc. They are being sued for words they published. And the judge is talking about how those words would be interpreted.

Which means, of course, that Steyn et al. are emphatically not “being sued for words they published” (inasmuch as were that the fact, the motion to dismiss would have been granted) but rather upon how this particular malfeasant judge has claimed that “those words” (authorship notwithstanding) “would be interpreted.”
Let us return to Mr. Mencken’s robust observations:

Judge — A law student who marks his own examination-papers.

Szilard

Look up any judge at “The Robing Room” and you’re pretty likely to find negative comments from litigants who think they got the wrong result. It’s completely unreliable as a guide to judicial quality.
Nice touch with the “Clinton judge” label. It’s good to always Inject a soupcon of lame, tedious party-political rhetoric into any kind of debate, I find.

Olaf Koenders

Many of the comments against Greene show a clear basis for declaring mistrials in every case. A judge must uphold the law, not personal bias or opinion, which is the reason the jury exists. It appears Greene failed in her Oath on many occasions and should have been dismissed long ago.

Clinton appointees appeat to be setting new standards of lows in Judicial rulings. Given his proven predilections in the past, one wonders how they got the jobs in the first place.

sergeiMK

This is realy weird.
wuwt seems to be suggesting that mann has no case because all those fraud/cheat/incompetent claims were just for fun and have no truth behnd them.
It seems strange that you can call a professional a fraud so many times and with such force, then turn round and say it was just for fun.
Fraud is in uk a criminal offence and you have called this scientist (who relies on his science for funding) a criminal. It is obvious that there is a real chance you will cause him financial loss. An important point in uk defamation law.
Are you now saying that his science is valid?
or are you saying his science is fraudulant?
Decision time I think

sergeiMK says:
July 30, 2013 at 4:24 am
An important point in uk defamation law.

Where have you been the last 237 years? This is not the UK. We have something called freedom of speech.

Dave

Let’s see… a judge known for making emotional rulings while ignoring facts and the law. Hmmmm. She’s probably on Obama’s short list for the next opening on the Supreme Court.

Jonathan Abbott

It looks to me that the ruling is that someone has a case to answer for defaming Mann, despite some confusion over exactly who that should be. Therefore, I personally file this under ‘Not good news’.

Alan Watt, Climate Denialist Level 7

When the lawsuit was announced earlier at WUWT I tried to do some research on Judge Combs Greene. I was able to find the notice of her appointment to the DC Superior Court (Bill Clinton, president), but she was not included in the American Bar Association nominee ratings during the year covering her appointment. I think that is a bit unusual, but maybe the ABA doesn’t get involved in every appointment.
Technically, the President nominates all federal judges, but the practical system is the senior US Senator of the president’s party for the state hosting the court recommends candidates for any vacancies there and absent a really compelling reason the President will simply forward the name on to the Senate. The DC Superior court is different; there is a Nominating Committee which makes recommendations and I assume these go directly to the President.
I don’t know how much faith to place in comments left at the Robing Report — anyone can leave a rating there — all the quality control of Wikipedia and none of the audit trail. Most for Judge Combs Greene appear to come directly from litigants (based it appears on their own assessments; I don’t see any verification that people claiming to be attorneys actually are). For almost every civil litigation there is a winning party who is happy and a losing party who is not. If you look at comments for other judges you’ll find relatively few positive ones — the unhappy party is usually more motivated to complain.
What I tried to find, and did not, was a record of how many rulings by Judge Combs Greene were reversed as a percentage of rulings appealed. That’s a more objective measure of how well a judge knows and applies the law.
In any case judges do make mistakes, which is why there are appellate courts.

TImothy Sorenson

Maybe a good thing though, she retires on Sept 20th and perhaps due to her poor calendar it will not get ruled and need a new judge to be appointed.

johanna

@ Nick Stokes
“They are’nt being sued for requesting investigations etc. They are being sued for words they published. And the judge is talking about how those words would be interpreted.”
——————————————-
Nick, the judge claimed that Steyn and his publishers did things that they did not do as a basis for her decision to let the trial go ahead. She was simply wrong on the facts, mixing up what CEI (a separate party) did with the contents of the article, which are the only things that Steyn and his publishers can be sued for.
This is such a dumb error that one wonders how she ever passed her law exams, let alone got appointed to the Bench.