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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. 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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