Another round in court, another loss for Ken Cuccinelli. The attorney general issued, famously, a civil investigative demand to the University of Virginia, insisting that they turn over all records pertaining to and generated by climatologist Michael Mann. UVA refused to comply with the demand. Now the Supreme Court of Virginia has ruled against Cuccinelli, in a decision that should surprise nobody who has been paying attention. (The ruling “set aside the CIDs with prejudice,” quite a stronger decision than the circuit court issued last year.) In the 26-page decision, Justice LeRoy Millette Jr. concluded that the Fraud Against Taxpayers Act (FATA) is not intended to apply to state agencies, regardless of whether or not they are incorporated, as is UVA:
[A]s not all Commonwealth agencies are corporations, reading “corporations” to include UVA would produce the inexplicable and awkward result that state agencies operating as public corporations are subject to FATA while other arms of the Commonwealth are not. We find it unlikely that the General Assembly intended such a result. In light of 16 the multiple inconsistencies raised by such an interpretation, we conclude that the General Assembly did not intend Code § 8.01-216.2 to include agencies of the Commonwealth in its definition of “person.”
[In the context of § 8.01-216.2], “corporation” should be understood as a similarly oriented private sector entity, and not as encompassing an agency of the Commonwealth.
(Note that if Bob Marshall’s HB1 had passed, then fetuses would also be subject to investigation under FATA. If that sounds funny to you, pause just for a moment to consider whether Ken Cuccinelli would slap a CID on a fetus in order to prevent a woman from having an abortion.)
It was last year that Judge Paul Peatross considered the case, and explained that there were several obvious reasons why Cuccinelli is in the wrong, including that the all but one grants Cuccinelli is questioning are federal (thus outside of the scope of an investigation into the use of state funds) and that Cuccinelli has demonstrated absolutely no basis for an investigation. Justice Millette did not even consider these concerns, “because the statute does not give the Attorney General authority to issue CIDs to UVA, all other issues are rendered moot.”
Justice Elizabeth McClanahan dissented on the matter of prejudice; she agrees with the majority’s ruling, but for different reasons. She thinks that UVA should be obliged to comply with the CID, but agrees with Peatross’s earlier ruling that there’s no there there—the Cuccinelli has failed to state any violation of the law in the CID, and thus is not enforceable. Yes, even the judge who sides with Cuccinelli does not side with Cuccinelli.