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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. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  2. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  3. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  4. Why do so many lawyers get away with lying in court, Jamie Yoak?

  5. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

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