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Virginia Supreme Court opinion on Virginia AG Ken Cuccinelli's investigation of University of Virgnia

Virginia Supreme Court opinion on Virginia AG Ken Cuccinelli's investigation of University of Virgnia

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Published by The Roanoke Times
In an opinion released March 2, 2012, the Virginia Supreme Court ruled that the University of Virgnia cannot be the subject of a “civil investigative demand” issued by the state attorney general under the Virginia Fraud Against Taxpayers Act. [Full story: http://www.roanoke.com/news/breaking/wb/305667]
In an opinion released March 2, 2012, the Virginia Supreme Court ruled that the University of Virgnia cannot be the subject of a “civil investigative demand” issued by the state attorney general under the Virginia Fraud Against Taxpayers Act. [Full story: http://www.roanoke.com/news/breaking/wb/305667]

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Published by: The Roanoke Times on Mar 02, 2012
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03/02/2012

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1PRESENT: All the JusticesKENNETH T. CUCCINELLI, II,IN HIS CAPACITY ASATTORNEY GENERAL OF VIRGINIAOPINION BYv. Record No. 102359 JUSTICE LEROY F. MILLETTE, JR.March 2, 2012RECTOR AND VISITORS OF THEUNIVERSITY OF VIRGINIAFROM THE CIRCUIT COURT OF ALBEMARLE COUNTYPaul M. Peatross, Jr., Judge DesignateThe threshold issue in this case is whether the Universityof Virginia is a "person" under the Virginia Fraud AgainstTaxpayers Act (FATA or Act), Code §§ 8.01-216.1 through -216.19. For the reasons that follow, we conclude that it isnot.I. BackgroundThis case arises from two Civil Investigative Demands(CIDs) issued to the University of Virginia and the Rector andVisitors of the University of Virginia (collectively, UVA) byAttorney General Kenneth T. Cuccinelli, II, pursuant to FATA.The CIDs sought information relating to the research of climatescientist Dr. Michael Mann, who taught at UVA from 1999 to2005. While employed by UVA, Dr. Mann received a series ofgrants to fund his research on climate change.Amidst allegations that some climate scientists hadfalsified data to indicate a dramatic upturn in the earth's
 
2surface temperatures as a result of the use of fossil fuels,the Attorney General launched a FATA investigation into thegrants Dr. Mann received while employed by UVA. The AttorneyGeneral issued two CIDs pursuant to Code § 8.01-216.10(A), oneto the University and one to its Rector and Visitors.
*
Thecontent of the CIDs was identical. In relevant part, each CIDprovided:This [CID] is issued in connection with aninvestigation by the Attorney General into possibleviolations by Dr. Michael Mann of §§ 8.01-216.3(A)(1), (2), and (3) of FATA. The investigationrelates to data and other materials that Dr. Mannpresented in seeking awards/grants funded, in wholeor in part, by the Commonwealth of Virginia or any ofits agencies as well as data, materials andcommunications that Dr. Mann created, presented ormade in connection with or related to the followingawards/grants.The CID then went on to list five grants, each of which was onDr. Mann's curriculum vitae. Four of the grants were funded bythe federal government and one was funded by UVA.UVA petitioned the circuit court to set aside the CIDs,arguing, among other things, that the Attorney General had nostatutory authority to serve CIDs upon agencies of theCommonwealth and that the CIDs were defective in that theyfailed to state the nature of the conduct alleged. The circuit
*
At oral argument, counsel for both sides agreed that, forthe purposes of this case, the entities were one and the same;Deputy Attorney General Wesley G. Russell, Jr., explained thatUVA had been served with process under both titles merely to bethorough and avoid error.
 
3court issued a letter opinion rejecting UVA's position that itwas not subject to FATA investigations, finding that UVA is "aproper subject for a CID and the Attorney General mayinvestigate grants made with Commonwealth of Virginia funds toprofessors such as Dr. Mann." The circuit court alsoconcluded, however, that the CIDs were unlawful because theyfailed to comply with FATA's requirement that CIDs "state thenature of the conduct constituting the alleged violation of[FATA] that is under investigation." Code § 8.01-216.11. Thecircuit court therefore granted UVA's petition and set asidethe CIDs, without prejudice.The Attorney General appeals, asserting severalassignments of error, and UVA assigns cross-error to thecircuit court's conclusion that UVA constitutes a "person"under FATA and is thus subject to CIDs under the Act.II. DiscussionWe will first address UVA's assignment of cross-errorbecause it is a dispositive threshold issue: if UVA is not a"person" under FATA, then it cannot be the proper subject of aCID, and the Court need not consider the Attorney General'sassignments of error. See, e.g., DurretteBradshaw, P.C. v. MRCConsulting, L.C., 277 Va. 140, 142 n.*, 670 S.E.2d 704, 705 n.*(2009) (declining to address non-dispositive assignments oferror where a dispositive assignment of error is addressed).

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