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COA affirms dropped charges for ex-IURC chief Hardy

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Because David Lott Hardy, former chairman of the Indiana Utility Regulatory Commission, broke no laws, a trial court didn’t abuse its discretion in dismissing felony official misconduct charges against him, the Indiana Court of Appeals held Tuesday.

“Because our Supreme Court has interpreted the official misconduct statute to require a charge of official misconduct to rest upon criminal behavior that is related to the performance of official duties, we conclude that the trial court did not abuse its discretion when it dismissed the State’s charges against Hardy,” Judge Rudy R. Pyle III wrote for the panel, citing State v. Dugan, 793 N.E.2d 1034 (Ind. 2003). “We need not address any of the State’s or Hardy’s remaining arguments.”

The state appealed Marion Superior Judge William Nelson’s dismissal of four class D felony official misconduct counts against Hardy in State of Indiana v. David Lott Hardy, 49A02-1309-CR-756.

The state claimed on appeal that the official misconduct statute did not require a predicate criminal offense.

The charges against Hardy were based on ethical and administrative violations alleged in his involvement in the permitting process for Duke Energy’s coal-gasification plant in Edwardsport. Former Gov. Mitch Daniels fired Hardy after accusations arose that he lobbied Duke officials on behalf of Scott Storms, who had been an administrative law judge hearing Duke cases at the IURC while also trying to land a job with the utility.

Hardy’s case also involved variations of the official misconduct statutes. Prior to July 1, 2011, the code defined the offense as an act a public servant  was “forbidden by law” to perform. The statute that took effect after July 1, 2011, I.C. 35-44.1-1-1 rewrote the code to require an underlying crime, and that revised statute was applied retroactively to Hardy.

Under either version, though, the court held, “Dugan unequivocally established that a charge of official conduct must be based on a criminal offense.”

It’s unclear whether the attorney general’s office will appeal.
 
"The Attorney General's Office represents the prosecution on appeal and sought to have the criminal charges reinstated in pursuit of justice, but respects the Court's ruling,” spokesman Bryan Corbin said. “The State is reviewing the Court's opinion carefully as we weigh the decision of whether to seek transfer to the Indiana Supreme Court."

 





 

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  1. Don't we have bigger issues to concern ourselves with?

  2. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  3. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  4. Different rules for different folks....

  5. I would strongly suggest anyone seeking mediation check the experience of the mediator. There are retired judges who decide to become mediators. Their training and experience is in making rulings which is not the point of mediation.

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