September 9, 2013-Press Release from Indiana Attorney General Greg Zoeller
David Lott Hardy, center, then Chair of the Indiana Utility Regulatory Commission, declares, “We will get this thing built” at the Energy Summit of Southwest Indiana held August 30, 2007, the day after the public hearing his commission conducted on Edwardsport. Hardy was later indicted on charges stemming from “ethics violations” as a result of his handling of Edwardsport dockets. Photo © 2007 John Blair
Representing the prosecution in appellate court, Indiana Attorney General Greg Zoeller’s office is seeking to reinstate criminal charges against a former state utility regulator by appealing a trial court’s order that dismissed the charges.
On Friday in the Indiana Court of Appeals, Zoeller’s office filed notice to appeal the August 12 ruling of the Marion County Superior Court that dismissed official misconduct charges against David Lott Hardy. The trial court found that the Legislature’s 2012 change to the official misconduct statute invalidated charges the prosecutor had brought against Hardy before that time.
The Attorney General’s Office represents the State in criminal appeals. Zoeller said that after reviewing the case and conferring with the Marion County Prosecutor’s Office, he decided to appeal the trial court’s ruling. Zoeller’s office asks the Court of Appeals to reverse the trial court’s order dismissing the charges and reinstate them, so that Hardy will again face trial.
“This is an issue of law regarding our Legislature’s intent. 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. We respect the trial court but contend its ruling is incorrect, the 2012 change is not retroactive and the defendant can and should face charges under the law in effect in 2010. We ask the Court of Appeals to reinstate the charges so that the trial can proceed and a verdict can be rendered,” Zoeller said.
The former chairman of the Indiana Utility Regulatory Commission, Hardy had been indicted by a Marion County grand jury in 2011 on four counts of Class D felony official misconduct. Hardy was accused of lobbying Duke Energy to assist administrative law judge Scott Storms in gaining employment with that utility company. Hardy also was accused of failing to disclose in a timely manner ex parte communications – one side only without the other side being notified – that he had with Duke Energy regarding its Edwardsport power plant in 2010. On August 12 the trial court judge granted a defense motion to dismiss the charges before the case could be deliberated.
Although the acts allegedly occurred in 2010 and the Marion County Prosecutor obtained the indictment in 2011, the Legislature changed the official misconduct law in 2012 to specify that it applied to specific criminal offenses by public officials, and not to violations of ethical or administrative rules or infractions. The trial court interpreted the 2012 change in the law as retroactive and decided the new definition meant official misconduct charges could not apply to Hardy, and so dismissed them.
Indiana prosecutors are responsible for the trial of criminal charges, while the Attorney General is responsible for all appeals of criminal cases to the Indiana Court of Appeals and Indiana Supreme Court. It is common for a prosecutor who has had a case dismissed to request that the Attorney General take an appeal to have the charges reinstated.
The appeal will be heard by the Indiana Court of Appeals, where both sides will have the opportunity to file legal briefs and the court might hear oral argument. If the court rules in the State’s favor, then the trial court’s order dismissing the charges would be vacated and the prosecutor’s criminal case against Hardy would resume.
“Beyond the issue of law involved, this case is one that addresses important claims of public misconduct; and in order for the public to have trust in our system of laws, there must be accountability, which makes this appeal all the more important,” Zoeller concluded.