Judge denies Cuccinelli's demand for U.Va. records, for now

RICHMOND

A ruling Monday by an Albemarle County judge that the University of Virginia does not have to respond to Attorney General Ken Cuccinelli's demand for research records of a former U.Va. professor dealt a blow to Cuccinelli's investigation into possible fraud.

But it doesn't mean the inquiry can't proceed or that the ruling went entirely in the university's favor.

Circuit Judge Paul M. Peatross Jr. wrote in a six-page decision that the attorney general failed to justify his demand for the records because he did not demonstrate how he has "reason to believe" that Michael Mann might have committed fraud as part of climate-change research he did as an assistant professor of environmental sciences at U.Va.

A statement from Cuccinelli suggests he will appeal, although a spokesman for the attorney general declined to say whether the case will be pursued.

The judge "has given us a framework for issuing a new civil investigative demand to get the information necessary to continue our investigation," Cuccinelli said.

In its statement, the university emphasized the court's conclusions that Cuccinelli "failed to sufficiently support any allegation that Dr. Mann engaged in fraudulent conduct" and that "academic freedom should inform the propriety of an inquiry into the conduct of university faculty."

The standoff between the attorney general and U.Va. began in April when Cuccinelli served a civil investigative demand - a legal instrument similar to a subpoena - on the university.

He demanded documents and other materials related to five taxpayer-funded research grants that Mann had a role in while on the U.Va. faculty from 1999 to 2005.

Mann, whose conclusions indicate the Earth's climate has grown warmer, found himself an unwitting player in the recent "Climategate" controversy involving leaked e-mails among several scientists.

Global warming skeptics pointed to that correspondence as evidence of scientific misconduct and faulty conclusions.

Mann's defenders argue that his work has been validated by other scholars and that an academic review panel cleared him of wrongdoing in connection to Climategate.

Cuccinelli has publicly questioned global warming and, in a separate action, challenged a U.S. Environmental Protection Agency finding that greenhouse gases are harmful to humans.

In his ruling, Peatross concluded that Cuccinelli didn't specify what he suspects Mann did that potentially violates the law.

Despite Mann's role in controversial work, the ruling said, it is not clear that what the professor "did was misleading, false or fraudulent in obtaining funds from the Commonwealth of Virginia."

Mann, now at Pennsylvania State University, hailed the ruling in an e-mail Monday as "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."

Praise for the ruling also came from the American Civil Liberties Union of Virginia, which was among the groups that objected when the attorney general made his demand for the records.

After Cuccinelli submitted the subpoena, school officials at first expressed a willingness to cooperate. But that changed in the face of an outcry from academics, including U.Va. faculty members, civil libertarians and scientists who urged the school to resist what some viewed as a move to quash academic freedom.

The university subsequently brought in counsel, and the two sides met in a Charlottesville courtroom earlier this month.

While Peatross' ruling excused U.Va. from surrendering records for now, it also deemed the school "a proper subject" for a records demand from the attorney general, who "may investigate grants made within the Commonwealth of Virginia to professors."

University attorneys had argued that the state fraud law whose authority Cuccinelli cites does not apply to the school.

Another question the court weighed is which grants are subject to investigation under the state fraud law.

Four of the five grants that attracted Cuccinelli's interest were funded by the federal government, according to the university. The fifth, valued at $214,700, was state-funded.

Peatross ruled that the attorney general can investigate awards funded by the commonwealth, including any state money paid in connection to the fifth grant after Jan. 1, 2003, the effective date of the state fraud law on which Cuccinelli based his investigation.

Julian Walker, (804) 697-1564, julian.walker@pilotonline.com