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Appeals court upholds dismissal in utility-regulator case

INDIANAPOLIS – The Indiana Court of Appeals on Tuesday upheld an earlier trial court ruling dismissing all criminal charges against Fort Wayne man David Lott Hardy.

Attorney General Greg Zoeller sought to reinstate criminal charges against the former state utility regulator.

Zoeller can still appeal the case to the Indiana Supreme Court.

Hardy, of Fort Wayne, was charged with several felony counts of official misconduct in December 2011.

The indictments alleged that as the former head of the Indiana Utility Regulatory Commission, he allowed the panel's top lawyer to keep overseeing cases involving Duke Energy even though he knew the attorney was trying to land a job at the utility company.

Former Gov. Mitch Daniels fired Hardy in October 2010 but said he didn't think anything Hardy did was criminal.

Hardy stood trial Aug. 12, but Marion Superior Judge William Nelson dismissed the charges before the case went to deliberations. Nelson found that Hardy could not be charged with official misconduct because there was no underlying criminal accusation on which the misconduct charges were based.

The General Assembly had modified the law effective July 1, 2012, and the judge said that action to clarify the law showed the legislature's intent to apply the change retroactively.

But Zoeller said "if the legislature intended to make a 2012 change in the law retroactive as the trial court ruled, it would have written that into the statute, and it did not."

He further asked that Hardy face charges under the law that was in effect in 2010.

The Indiana Court of Appeals ruled Tuesday that an Indiana Supreme Court holding under the previous law governed the case. That precedent said an official misconduct charge requires the case to rest upon criminal behavior related to the person’s official duties.

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