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Tuesday, August 13, 2013

Ind. Decisions - More on: "Charges related to Duke Energy ethics scandal dismissed against former Indiana utility regulator David Lott Hardy"

Updating this ILB post from yesterday, John Russell has this expanded version of his story in today's Indianapolis Star. Some quotes:

Marion Superior Court Judge William J. Nelson said he had no choice but to dismiss four felony counts of official misconduct against Hardy, saying they were based on what he called a flaw in Indiana’s law. * * *

The judge ultimately ruled that because none of those allegations constituted a criminal act, Hardy could not be charged with the crime of official misconduct.

The issue of whether Indiana law allowed allegations of a noncriminal rules violation to be used as the basis for a criminal charge of official misconduct was first raised by the Indiana inspector general three years ago — before Hardy was charged with a crime.

At the inspector general’s urging, the General Assembly clarified the law, effective in 2012, to require charges of official misconduct to be based only on criminal acts.

Hardy’s lawyer, David Hensel, argued that a public servant has to commit a crime in the course of his job to be guilty of official misconduct. He said Hardy did not commit any crimes. * * *

Indiana civil law sharply restricts private conversations, also known as ex parte communication, between regulators and company officials on pending cases. * * *

The judge said his ruling could be interpreted to go against “every sense of righteousness that gets to the very essence of morality.”

But he said he put much weight in a report issued Sept. 7, 2010, by Indiana Inspector General David Thomas, who said he found a defect in the public misconduct law. The defect was that even noncriminal behavior, such as violating a noncriminal procedural rule, could amount to a violation of the law.

Thomas recommended that the General Assembly change the language, requiring that a charge for misconduct “must rest upon criminal behavior that is related to the performance of official duties.” The General Assembly changed the law, effective July 1, 2012, to reflect that.

Nelson said the legislature’s quick action to clarify the law “is indicative of the legislative intent to apply the amendment retroactively.” * * *

The judge’s ruling surprised several groups that have decried the secrecy behind the Edwards­port plant’s regulatory review.

“This is certainly a low point for accountability in Indiana government,” said Julia Vaughn of Common Cause Indiana, a government watchdog group. “Clearly, this was a poorly crafted law, and it’s tragic that Hardy is going to escape through a loophole.”

Kerwin Olson, executive director of Citizens Action Coalition of Indiana, said: “This whole thing stinks to high heaven.”

But a legal expert said the court’s ruling rested on solid legal ground.

Joel Schumm, clinical professor of law at Indiana University’s Robert H. McKinney School of Law in Indianapolis, said that in prior cases, defendants convicted of official misconduct have committed a crime, not just a violation of a rule. “The language of the statute was amended to make this clear,” he said.

ILB: Perhaps... But here the amended law is being applied retroactively because, as the judge states at the end of his opinion:
[T]he quick action of the Indiana Legislature in responding to inspector General Thomas’s request to ciarify the application of the Official Misconduct is indicative of the legislative intent to apply the amendment retroactively.
More credible might be an assertion that the lack of a retroactivity clause clearly indicates the General Assembly did NOT intend for it to apply retroactively.

And yesterday's ruling raises the question of whether not only this, but any statute the General Assembly enacts after having been urged to by the Inspector General (or by the Court), is intended to apply retroactively, unless the new law provides otherwise! -- which would be the direct opposite of the way statutes have been applied for decades...

Here is a copy of yesterday's Order to Dismiss.

Here is the Sept. 7, 2010 Inspector General Report recommending a change to the official misconduct statute.*

And here is SEA 262, from 2012, which repealed IC 35-44-1-2 (by PL 126-2012, SEC. 53) and replaced it with IC 35-44.1-1-1.
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*The ILB has had much trouble figuring out how to locate individual Inspector General Reports (not the annual reports) such as the one from 2010 linked above. This one I located via google with a search "indiana inspector general report misconduct", because I already knew the document existed. I have not found online any index or list of these individual Inspector General Reports ...

I did come across this "Complete list of Advisory Opinions", which is a different series, but it is only the most skeletal of aids.

Posted by Marcia Oddi on August 13, 2013 12:51 PM
Posted to Ind. Trial Ct. Decisions | Indiana Government | Indiana Law