State Supreme Court Throws Out Attorney General's CIDs

March 2, 2012 — The Supreme Court of Virginia today affirmed a circuit court's decision quashing two civil investigative demands – or CIDs – by the Virginia Attorney General that sought extensive information relating to climate research conducted by Michael Mann, an assistant professor of environmental sciences in the University of Virginia's College of Arts & Sciences from 1999 to 2005.

Writing for the court, Justice Leroy F. Millette Jr. stated that the University is first and foremost a state agency and therefore not subject to CID provisions in the Fraud Against Taxpayers Act, under which the attorney general had sought information and documents.

The attorney general had argued that the University is a corporation, and therefore falls within the definition of "person" outlined in the Fraud Against Taxpayers Act, or FATA. The Supreme Court, however, agreed with the University's position that the CID provisions of the act don't apply because the University is a state agency.

"This is an important decision that will be welcomed here and in the broader higher education community," U.Va. President Teresa A. Sullivan said.

The decision affirmed an Albemarle Circuit Court ruling in August 2010 by Judge Paul M. Peatross Jr., but on grounds different than those asserted by the circuit court. Although the circuit court agreed with the attorney general that the University is a "person" under FATA, it dismissed the CIDs because they failed to sufficiently allege the "nature of the conduct" believed to have violated the act.

The University had characterized the attorney general's actions as an "unprecedented attempt to challenge a university professor's peer-reviewed data, methodologies and conclusions" that would "infringe academic freedom and chill scientific debate." U.Va. faculty members, faculty at other institutions, and academic organizations lined up in support of the University.

"I am grateful for the ongoing support of our own faculty and the faculty at many institutions around the world," Sullivan said.

The decision comes almost two years after the University received two CIDs from the attorney general about Mann, who is currently on the faculty of The Pennsylvania State University.

The University said it has spent $570,698 vindicating its position with respect to the CIDs. Because the University's Office of General Counsel is appointed by and answerable to the Virginia Attorney General, the University was represented by outside counsel, the Washington, D.C., firm of Hogan Lovells.

The legal fees were paid from private funds.

Based on the Supreme Court's decision, the University this afternoon filed a motion in Albemarle County Circuit Court, asking the court to quash another CID issued by the attorney general while the first case was on appeal. The attorney general's office said in a statement that it will move to dismiss the still-pending CID.