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Monday, September 09, 2013

Ind. Gov't. - Attorney General Zoeller appeals to reinstate charges against David Lott Hardy in utility regulator case

From a news release issued this afternoon:

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. [Emphasis by ILB] * * *

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.

For background, see the ILB entry from August 13th. Re the trial court ruling, the ILB wrote:
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...

Attached is the State’s notice of appeal, filed Friday in the Indiana Court of Appeals, as well as the trial court’s August 12 order dismissing the criminal charges.

Posted by Marcia Oddi on September 9, 2013 03:54 PM
Posted to Indiana Courts | Indiana Government