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The CEI and NR Reply Briefs
This entry was written by Stephen McIntyre, posted on Sep 25, 2014 at 6:57 PM, filed under Uncategorized. Bookmark the permalink. Follow any comments here with the RSS feed for this post.
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Climate Audit 
23 Comments
No link?
Pauldd writes:
I have been reading the pleadings as they have been filed, but somewhat casually and not keeping careful notes. At this point the case has grabbed my attention, but I don’t have time to reread everything. I do have two questions that perhaps could be answered by someone who has been a bit more diligent–perhaps Steve or JDOhio.
1. My recollection is the trial court relied exclusively on the so-called exonerations for its finding that Mann was likely to prevail on a showing of actual malice. Likewise, Mann seemed to rely on them exclusively. Did either the trial court or plaintiff rely on anything else? I think this argument has been pretty well gutted. Is there anything else regarding actual malice that could be used by the COAs to salvage Mann’s case?
2. This case is strange to me because everyone has presented arguments that rely on facts outside the pleadings, but it is not obvious to me that any factual record was developed by testimony or even affidavits in the trial court. This observation was raised in an earlier thread. For example CEI has cited Mann’s CV, but I doubt that it has been stipulated in the record or presented in evidence. The legal standard “likely to prevail on the merit” is identical to one prong of the standard typically used to issue a preliminary injunction. This usually requires some type of summary evidentiary hearing, usually with testimony, and/or stipulations. I am not an expert on SLAP cases, but it seems to me that it would be appropriate to remand the case to more formally develop a factual record. Any thoughts by someone familiar with how SLAP cases are typically litigated?
Finally, Steve: would it make sense to promote this discussion to its own thread?
Re: Formal Record (Pauldd)
I agree that it is strange that matters outside of the formal record are being referenced in the briefs. I checked the appellate rules and there was no exception for internet matters.
On the other hand, I think that it is good that the Court of Appeals is ignoring the formal rules so that obvious matters, such as the contents of Mann’s emails can be considered on appeal. I think this is particularly beneficial in Slapp matters where the law is designed to minimize expenses.
JD
NR
http://cei.org/sites/default/files/Mann%20-%20NR%2
Truncated URL I think – it is off http://cei.org/content/national-review-appellate-reply-brief
My understanding is under the SLAPP provisions, since Mann is public figure, the defamation in order to be actionable has to be made with malice and with knowledge that the defaming statements were known to be false (my apologies if that discreption is not reasonably close to the required standard) My understanding that the burden shifts to the plantiff that defendent know the statements were false and with malice.
What has struck me so far is 1) that the trial court made the assumption the statements were false and where known to be false by the defendents without the having any requirement of the shift of the burden of proof. and 2) that the initial pleadings do not address this issue.
Am I missing anything?
Kudo’s might be in order for Steve M and Judith curry.
A brief scan of the CEI pleading has several passages that very closely resemble comments made in both CA . org and in Judith curry blog. I havent had the chance to track many of the passages back to original blog posts, though I would expect Steve M to recognize many of the passages.
Joe: “actual malice” is a term of art in libel law that is different from the common meaning of these words that suggest ill-will. In libel law a person acts with ” actual malice” when he makes a statement he knows is false or with reckless disregard as to its truth.
If the plaintiff is a public figure he must prove actual malice as one of several element of his case. The burden is always with the plaintiff.
In this case, the court is construing an anti slap law that requires the court to dismiss a libel lawsuit at the starting gate unless the plaintiff can make an initial showing that he is likely to prevail. Usually courts cannot dismiss a case at the starting gate unless the plaintiffs allegations assumed at that point to be true fail to state a valid cause of action.
PaulDD – I agree that the burden is on plaintiff. I may have misstated my question – At the normal motion to dismiss at summary judgment level, the plaintiff’s facts are presumed to be true and/or in the light most favorable to the plaintiff.
Where as In a SLAPP case, when a motion to dismiss under slapp, the plaintiff doesnt have the benefit of the presumption of facts most favorable to the defendant has the burden of proof at that stage of the trial.
My recollection was that the judge treated motion to dismiss as a normal motion to dismiss instead of a motion to dismiss under the slapp provision and applied the wrong standard by not requiring any burden of proof at what the judge mistakenly believed was the summary judgment stage.
I hope that clears up my misstatement.
Just a reminder, the law in question is the D.C. anti-SLAPP law. A strategic lawsuit against public participation (SLAPP) is what Dr. Mann filed. The anti-SLAPP law provides protections to defendants so that a SLAPP suit has to show a likelihood of succeeding on the merits from the get-go.
Better link for NR brief:
http://cei.org/content/national-review-appellate-reply-brief
The CEI brief is particularly powerful, clearly pointing out that Mann’s claims of “exoneration” are unfounded (obviously relying on the analysis at CA). It’s hard to see how even a DC Court of Appeals can fail to dismiss the case (as much as I would like to see Mann under oath in a full trial).
Re Pauldd’s point #1: The judge wrote:
Here’s the link to the denial of the motion to dismiss:
Click to access Mann_Order_CEI_7-19-13.pdf
The above material is found on page 21 in a section that I think answers Pauldd’s questions.
To the extent he was ‘investigated’ Mann was cleared of scientific misconduct, not the accuracy of his work. But even if one were to conclude the investigations of misconduct also pronounced his work as correct, that does not mean everyone has to agree with how those investigations were conducted or believe the the accuracy of their conclusions…. any more than I am obliged by a jury verdict to believe that OJ Simpson is not a knife murderer. The lower court judge seems to me to have erred, and badly, by concluding, as many liberals are wont to do, that nobody could ever honestly disagree with their beliefs and reasoning.
In my view an investigation implies a real search for undiscovered information. I don’t believe that Mann was investigated in that sense. The “investigations” were in the nature of a prosecutor asking the mother of an accused murderer: Did your son murder x? The mother says no, and the prosecutor ends his “inquiry.” A more accurate description is to say that Mann was whitewashed.
JD
Very interesting reads. There is a section in the NRA where the meaning of bogus is compared to fraudelent.
I wonder if they could have considered comparing trickster with fraudster. My recollection is that a trickster is one who uses tricks to deceive 🙂
Dear Steve
Your fingerprints are all over these submissions?
Steve: as I mentioned elsewhere, I presume that CEI reads Climate Audit, but I was not involved in drafting the documents, nor did they vet the drafts with me or ask me for comments. Mann’s lawyers also have access to Climate Audit.
Dear Steve
I’m sure they are honourable men and will lob in some lucre to the tip jar 🙂
There is something bugging me and it’s regarding Mann and another scientist who fessed up when he took on a new job. Can anyone help?
It seems to me every move the Mann team makes draws four related but distinct responses. It’s as if a military squad wandered into a zone defended by four distinct NATO “peacekeeping” forces — the biggest problem may be where one defender (NRO?) overshoots into friendly territory (Steyn?) But otherwise Mann’s strategy of fighting four adversaries in a single engagement appears to be less than optimal for accomplishing his presumed objectives.
Even setting aside merit on any side, it’s as if Michael Palin chose to enter the argument clinic to engage John Cleese, Terry Jones, Eric Idle, and Grahm Chapman all at once.
Mann: Look, let’s get this thing clear; I quite definitely told you.
Simburg: No you didn’t.
CEI: And it definitely wasn’t definite.
Steyn: But it definitely wasn’t him, or me, or the general public. Though it might have been Leonardo DiCaprio, whom you might believe I resemble.
NRO: And whoever you did tell, heard it as a joke. Nobody seriously thought you meant it.
Mann: Oh this is ridiculous.
Steyn: Well, yes you are. And malicious. And vain. And a loser … (transcript fails to keep up with volume of Steynian responses.)
Simburg: The data is. And tortured and molested, don’t forget.
NRO: I think you mean “intellectually bogus”. “Ridiculous”, by the way, is protected opinion rather than objective fact, and if you can use that word so can all the rest of us.
CEI: Show us the data, code and reviewers’ email then, and prove it’s ridiculous. If you can’t, it is, so there!
Mann: Has it been five minutes yet?
After reading pauldd’s comments about the brief of the lawyers representing Steyn in his counterclaim, I read the brief. I still think that the counterclaim is basically a Hail Mary, but I think that it is supported by somewhat farfetched but theoretically reasonable arguments.
The counterclaim consists of 3 claims. 1. There is an implied private cause of action for individuals arising out of the passage of the Anti-Slapp act. No case or statute directly supports this claim. 2. Mann’s defamation suit contains an element of state action, which means that Steyn has 42 U.S.C. § 1983 [very famous civil rights statute] cause of action. The only case directly cited in support of this claim was Shelley v. Kraemer, a 1948 case dealing with restrictive covenants. The fact that more recent cases have not been cited leads me to speculate that this claim is weak. 3. Steyn’s lawyers are claiming that he has an abusive litigation common law claim. In support of this, Steyn’s brief cites one Georgia case that has recognized abusive litigation as a tort as being separate from abuse of process and malicious prosecution.
I still think the odds are much against Steyn, but he does have reasonable and professional lawyers who are supporting his Hail Mary.
Will add my editorial commentary. I personally am opposed to judges making law to remedy perceived abuses. I think the DC Anti-Slapp Act, as recently interpreted, was a very good piece of legislation. If judges are permitted to add their own modifications to it, it will probably be degraded.
JD
Mark Steyn is not happy with National Review’s brief because they are distancing themselves from Steyn, and not fighting the big picture free speech battle he thinks is in order. Also, I think Mann is right with regards to the Communications Decency Act. If National review hasn’t brought it up before, they can’t introduce it on appeal.
People here would like CEI’s brief more as it goes towards scientific issues. Nevertheless, National Review has the strongest brief, and perhaps most similar in style to McIntyre. It is on very narrow grounds as Steyn says, but slowly uses Mann’s own briefs against him. If ‘bogus’ is synonymous with ‘fraudulent’ as Mann says, then ‘fraudulent’ is synonymous with ‘bogus’ and thus a statement of ‘fraudulent’ is no more actionable than ‘bogus’, which they argued is less than ‘misleading’.
Unfortunately, it looks like they are not reading ClimateAudit. They totally missed the finishing touch that Mann’s exoneration called his work misleading. They also referred to Mann’s work having a decline from 1960. Or perhaps National Review is redefining the hockey stick as the WMO graph.
I have a post in moderation. Are there certain words which trigger automatic moderation, such as one that is short for Frau baud?
Yup. That word will trigger modedation every time. Some other words will too, but I don’t know what they all are.