Miller v. New Castle County

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JOHN E. MILLER, )
)
Appellant, ) C.A. No. N14A-10-010 RRC
v. )
)
NEW CASTLE COUNTY and )
DEPARTMENT OF LAND USE, )
Appellee. )
Submitted: October 26, 2015
Decided: January 12, 2016
On Appellant’s Petition for a Writ of Certiorari.
DISMISSED.
ORDER
John E. Miller, pro se, James T. Vaughn Correctional Center, Smyrna,
Delaware.
Darryl A. Parson, Esquire, County Solicitor and Brionna Denby, Esquire,
New Castle County Office of Law, New Castle, Delaware, Attorneys for
New Castle County and Department of Land Use.
COOCH, R.J.
This 12th day of January, 2016, on Appellant’s Petition for a Writ of
Certiorari following a decision in a Rule to Show Cause hearing before the
New Castle County Department of Land Use, it appears to the Court that:
1. On June 4, 2014, the New Castle County Department of Land
Use (“the County”) held a Rule to Show Cause (“RTSC”)
hearing, regarding an alleged May 19, 2014, violation of the
New Castle County Standards for Property Maintenance. 1
1
R. at 3-5. See also The County’s Answering Br. at n. 1 (Specifically, the [p]roperty had
aluminum siding panels missing and exposed wood surfaces on the right, rear of the
Appellant John E. Miller is an absentee owner of 10 Catherine
Street, New Castle, Delaware, the property in question. 2 Mr.
Miller did not appear for the hearing, nor did counsel or anyone
else appear on his behalf. 3 Following the RTSC hearing, Mr.
Miller filed a Petition for a Writ of Certiorari with this Court
on November 4, 2014. In his Petition, Mr. Miller contends that
several violations spanning from May 9, 2009, through April 1,
2013, should be set aside, because he was not properly served
notice of the violations.
2. In his Opening Brief, Mr. Millers asserts three grounds for
relief. First, Mr. Miller argues that “[t]he New Castle County
[a]ssessments dated 5/11/09 through 4/8/13 should be set
aside[,] because there’s no evidence in the record [] Appellant
ever received real notice of them.” 4 Similarly, Mr. Miller’s
second assertion is that the assessments from “5/11/09 through
4/8/13 should be set aside[,] because there’s no evidence in the
record of the June 4, 2014[,] [RTSC] [h]earing that [] Appellant
received real notice of the 5/11/09 through 4/8/13
assessments.”5
3. Mr. Miller’s final argument, which he labels “[a] [p]reemptive
[a]rgument,” asserts that “[t]he New Castle County Department
of Land Use should not be arguing [that] Appellant received
notice of the May 2014 assessment[][,] because they are not the
ones [] Appellant is attempting to rebut notice of.” 6 Apparently
to eliminate any possible ambiguity, Mr. Miller further stated,
“to clarify, the Appellant is attempting to rebut only the 5/11/09
through 4/8/13 assessments.”7
dwelling. Also, the garage displayed exposed rotting wood, it was missing siding and
had a hole at the top of its exterior wall.”).
2
The County’s Answering Br. at 1.
3
R. at 4. It appears that at the time of the RTSC hearing Mr. Miller was incarcerated at
the James T. Vaughn Correctional Center. He is still an inmate there. The County’s
Answering Br. at 2.
4
Appellant’s Opening Br. at 6.
5
Id. at 7.
6
Id. at 8.
7
Id.
2
4. The County responded in its Answering Brief that Mr. Miller is
unable to dispute the 5/11/09 through 4/8/12 assessments on a
writ of certiorari. The writ is improper, argues the County,
because Mr. Miller did not exhaust his administrative remedies,
and because Mr. Miller received actual notice of the May 19,
2014 violation, “because it was mailed to the Smyrna prison
where he was and is incarcerated.” 8 The County further stated,
“[It] has spent hundreds of employee hours sending notices,
inspecting, ticketing, re-inspecting, re-ticketing and, finally,
abating the persistent and recurring property maintenance issues
on the [p]roperty.” 9
5. On January 9, 2015, the County filed the record and transcript
of the RTSC hearing that took place on June 4, 2014, with the
Prothonotary. On March 26, 2015, Mr. Miller filed a “Petition
for Expansion of the Record.” In his “Petition,” Mr. Miller
moved this Court to include “the violation notices [] Appellant
is actually contesting”; meaning the violations from 5/11/09-
4/8/12. The County filed a Motion in Opposition to Expansion
of the Record, arguing that the writ was premature because Mr.
Miller had not exhausted his administrative remedies. Also, the
County asserted that ‘“the Superior Court cannot look behind
the face of the record.”’ 10 Mr. Miller’s “Petition” was denied in
an Order signed by the Court on May 14, 2015.
6. “Any person aggrieved by any administrative enforcement
action under [the County Code] …shall have the right to appeal
to the Board of License, Inspection and Review.”11 “An
aggrieved party may appeal the decision of the Board of
License, Inspection and Review by filing a petition for a writ of
certiorari in the Delaware Superior Court.12 A writ of
certiorari ‘“is simply a form that calls up, for review, the record
8
The County’s Answering Br. at 2.
9
. Id. at 1.
10
The County’s Mot. in Opp’n to Expansion of the R. at 3 (quoting Maddrey v. Justice of
the Peace Court 13, 956 A.2d 1204, 1215 (Del. 2008).
11
New Castle County Property Maintenance Code Ch. 7, § 106.3.1.6.1.
12
Id. at § 106.3.1.6.8.
3
from the lower court or tribunal.”’13 “The Court may order an
appeal dismissed sua sponte . . . for failure to comply with any
rule, statute, or order of the Court or for any other reason
deemed by the Court to be appropriate.” 14
7. Mr. Miller’s Petition for Writ of Certiorari must be dismissed.
He did not exhaust all of his administrative remedies. Only
after taking an appeal to the Board of License, Inspection and
Review is it proper to petition this Court for a writ of
certiorari.15 Mr. Miller did not contest any of the 2009-2013
violations to the Board of License, Inspection and Review, and
is now time barred from raising any such challenge. 16 Since,
Mr. Miller’s writ is improperly before this Court and this Court
lacks jurisdiction to hear the matter under the doctrine of
exhaustion of administrative remedies, dismissal is
appropriate. 17
13
Maddrey v. Justice of the Peace 13, 956 A.2d 1204, 1213 (Del. 2008) (quoting Reise v.
Bd. of Bldg. App. of Newark, Del., 746 A.2d 271, 273 (Del. 2000).
14
Super. Ct. Civ. R. 72(i).
15
Id. at § 106.3.1.6.8 (“An aggrieved party may appeal the decision of the Board of
License, Inspection and Review by filing a petition for a writ of certiorari in the Delaware
Superior Court.”). See also Levinson v. Delaware Compensation Rating Bureau, Inc.,
616 A.2d 1182, 1187 (Del. 1992) (“[W]here a remedy before an administrative agency is
provided, relief must be sought by exhausting this remedy before the courts will either
review any action by the agency or provide an independent remedy.”).
16
The County’s Answering Br. at 3 (“Although Appellant’s first and second arguments
are without merit, the Court should be aware that Mr. Miller did not contest any of the
2009-2013 Property Maintenance Code violation notices and is time barred from now
raising objections.”).
17
On October 26, 2015, this Court received a letter from Mr. Miller, in which he asked if
this Court would
please tell [him] what case(s) it is [this Court] thinks [he] asked the Court to review. . . .
[he] want[s] case[] ‘A’ reviewed and the Court and the Dept. of Land Use keep[s]
pushing case ‘B.’ The confusion comes from [when he] attached a Rule to Show Cause
Hearing Decision to [his] petition as an example of the right way to do notice.
There is no need for the Court to reach the issue of notice.
4
Therefore, Appellant’s Petition for Writ of Certiorari is DISMISSED.
IT IS SO ORDERED.
______________________
Richard R. Cooch, R.J.
oc: Prothonotary
5