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State stops pursuit of former regulator

No further appeals; misconduct case vs. local resident ends

Hardy

– Indiana Attorney General Greg Zoeller has decided not to appeal an earlier ruling dismissing criminal charges against David Lott Hardy of Fort Wayne.

That means the official misconduct criminal case against Hardy is over.

Bryan Corbin, spokesman for the office, said the appeal is “likely unwinnable even if the court accepted the case for hearing, so it would not be appropriate to request transfer.”

“This is not due to a mere technicality: The Indiana Supreme Court selects which cases it hears and takes cases of broad importance with lasting impact in the law. Because the legislature has spoken and amended the official misconduct statute to exclude Hardy’s conduct from being considered a criminal act, any Supreme Court decision in this case would be limited to one individual only, and would have no wider or lasting relevance to other defendants.”

Zoeller had sought to reinstate criminal charges against the former state utility regulator. 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 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 in April 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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