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Official misconduct statute focus of Hardy appeal

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Whether Indiana’s official misconduct statute is unconstitutionally vague was the question before an appeals court panel Monday that heard the state argue that criminal charges should be reinstated against the fired head of the Indiana Utility Regulatory Commission.

Charges against former IURC chairman David Lott Hardy were dismissed last August. Former Gov. Mitch Daniels fired Hardy, who had been charged with four counts of official misconduct in 2011. Hardy was accused of allowing former IURC administrative law judge and general counsel Scott Storms to work on a number of Duke Energy cases pending before the commission at the same time Storms was trying to land a job with Duke.

Ellen Meilaender of the attorney general’s office argued that the charges against Hardy should be reinstated. She said the trial court rejected arguments that the official misconduct statute, I.C. 35-44-1-2, was unconstitutionally vague. She said official misconduct requires a nexus – “it had to be something done in connection with official duties.”

Attorney David J. Hensel urged the panel to affirm dismissal of the charges against Hardy on the basis of statutory vagueness. He argued that the Legislature acted quickly to amend the statute after Hardy was charged in order to clarify that the charge applies to a public servant who “knowingly or intentionally commits an offense” in the performance of duties.
   
The Legislature intended the amendment to be retroactive, Hensel argued, based on “the speed at which the legislature responded to notification of a defect in the law” in a report from the Inspector General. Lawmakers acted within five months, Hensel said.

Presiding Judge Paul Mathias and Judges Cale Bradford and Rudy R. Pyle III quizzed both sides on vagaries of the statute’s interpretation, whether the Legislature’s amendment was remedial and whether the statute requires a criminal act or if violations of agency policy may qualify as official misconduct.

Assuming the accusations against Hardy are true, Mathias said, “He’s not going to be nominated for public servant of the year anytime soon. … What’s the public to do?”

Hensel replied that Hardy has already been sanctioned by being fired, and he said three of the counts against him are based on communication that was brought to him but he didn’t initiate. “I don’t think the Legislature ever meant this to be a crime,” Hensel said. He also said no criminal violations may be based on violation of administrative rule.

Attorney General Greg Zoeller in a statement said the charges against Hardy should be reinstated and remanded to Marion Superior Court.

“For the public to have confidence in our laws there must be public accountability; and individuals who hold positions of public trust ought to be held to a very high standard.  My office, working with the prosecutor, maintains that the official misconduct statute that was on the books in 2010 should be enforced against this defendant, since the Legislature when it changed the law in 2012 did not make the change retroactive,” Zoeller said.



 

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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