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Ex-regulator’s appeal upheld

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

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

Zoeller can still appeal to the Indiana Supreme Court.

“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,” said Attorney General spokesman Bryan Corbin.

“The state is reviewing the court’s opinion carefully as we weigh the decision of whether to seek transfer to the Indiana Supreme Court,” he said.

Hardy 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 Court 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 were no underlying criminal accusations that the misconduct charges were based on.

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.

nkelly@jg.net

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