The protracted legal battle between Attorney General Ken Cuccinelli and the University of Virginia over access to documents produced by a climate change scientist might take a long, cold winter to resolve.
Circuit Judge Cheryl Higgins effectively put the case on the back burner Friday when she granted U.Va.'s request for a stay during a hearing in Albemarle County Circuit Court.
Higgins said she needs to wait for the Virginia Supreme Court to decide appeals by Cuccinelli and U.Va. on other aspects of the case before she rules on the attorney general's revised demand for documents. Both sides submitted briefs in the case in May. A date has not been set to hear arguments, which typically take nine to 12 months to schedule.
Top deputies for the attorney general's office were in Higgins' court seeking access to documents produced by former U.Va. climate scientist Michael Mann as part of an investigation into whether Mann committed fraud in obtaining a $214,700 state grant for his research in 2003. Numerous academic boards and university reviews have cleared him of misconduct. Mann is now employed at Pennsylvania State University.
Mann's research supports the theory that the earth has warmed and that human production of greenhouse gases is responsible for climate change. Cuccinelli is a skeptic of global warming theory.
Since the inquiry began in 2010, the university has balked at providing the documents, arguing, among other things, that the attorney general has no evidence of fraud to justify his demands and is on a "fishing expedition" in an attempt to police the debate over climate change.
While U.Va. has refused to provide records in the investigation by the attorney general's office, this spring it entered into an agreement to provide thousands of documents on the Mann matter to a private group, the conservative American Tradition Institute, after its request under the Freedom of Information Act.
Deputy Attorney General Wesley G. Russell Jr. called it "an absurd situation."
In August 2010, Albemarle Circuit Judge Paul Peatross ruled that the attorney general's civil investigative demands to the university were too broad in scope and needed to be more specific about the fraud under investigation.
Peatross also ruled that the attorney general could submit a revised civil investigative demand to U.Va., on the state grant that funded Mann after the Fraud Against Taxpayers Act was enacted in 2003, not on a series of federal grants the scientist used to fund his research previously.
Cuccinelli appealed the ruling; U.Va. also appealed, asserting that it should not be subject to compliance under the Fraud Against Taxpayers Act.
The attorney general's office has asserted that state universities and faculty are not immune from investigation and said it does not need evidence of fraud to investigate and that the documents produced by state employees such as Mann are the property of the commonwealth.
The issue of global warming or academic debate is "not enough" to constitute an investigation of the university under the fraud act, U.Va. attorney Chuck Rosenberg told Higgins on Friday.
Russell reiterated that the attorney general is not investigating climate change.
"We don't care if global warming (theory) is right or wrong," he told Higgins.
"It's whether the data was intentionally or knowingly manipulated."
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