Virginia Attorney General Ken Cuccinelli has asked the Virginia Supreme Court to hear an appeal of the ruling earlier this year quashing his Civil Investigative Demand ("CID") to the University of Virginia. 

Unlike in federal courts, there is no automatic appeal of right from a Virginia Circuit Court ruling.  The first thing the AG must do, then, is to convince the Virginia Supreme Court to hear the case.  

Given all of the political baggage this case apparently carries with it, let me re-state my position:  this blog is about the Virginia Fraud Against Taxpayers Act, and I take no position on the issue of global warming, or climate change, or any of that stuff.  (As I confessed earlier, I didn't even know there were two different ways to describe this concept until the AG issued his CID). 

The question of whether the earth is getting warmer or whatever is completely and totally irrelevant to the CID matter now pending before the Virginia Supreme Court—the sole issue is whether the CID was properly issued to the University of Virginia, and whether UVa had to respond.  

Moreover, it seems to me that the AG is correct, and the Circuit Court erred in a number of ways, not the least of which was in ruling that Cuccinelli needed a "reason to believe" that there had been a violation of the VFATA.

On that issue, the Circuit Court clearly went against more than a century of very clear federal and state case law when it quashed the Civil Investigative Demand.  The Circuit Court applied a standard somewhere in between a subpoena and a document request in civil discovery—that is to say, it applied a "judicial standard" to the CID rather a "law enforcement standard." 

I realize that this conceptual distinction may not be all that clear, but this is the best way to describe this concept I could devise on such short notice.

The two things—i.e., "the judicial standard" and the "law enforcement standard" are very different.  A person applying a judicial standard does so with a "case or controversy" mindset—i.e., a dispute between two parties or more parties—and makes each decision in the larger framework of ending that dispute one way or the other. 

(For the non-lawyers, the phrase "case or controversy" comes from the U.S. Constitution's description of Article III Courts and their power—and no, the word "controversy" does not mean "controversy" in the normal English language usage of that word; there is enough non-legal controversy in this CID matter to choke a horse).     

The law enforcement standard that should be applied to a CID is completely unrelated to the judicial
function—in fact has nothing at all to do with the judicial function; rather, the Attorney General is given the specific power under the Virginia Constitution and under the Virginia Fraud Against Taxpayers Act to issue these CIDs. 

The most analogous power is that of a Commonwealth's Attorney to convene a  grand jury and investigate a crime.  The Commonwealth's Attorney doesn't need to ask anybody to do that—he or she is given the power under the Virginia Constitution.   

Stay tuned, things should get interesting.