Opinion
C.A. No. 03A-07-001 WLW.
Submitted: February 11, 2004.
Decided: April 12, 2004.
Upon Appellee's Motion for Reargument. Order to Remand is Vacated.
Scott E. Chambers, Esquire of Schmittinger and Rodriguez, P.A., Dover, Delaware; attorneys for the Appellant.
James J. Hanley, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware; attorneys for the Appellee.
OPINION AND ORDER
Introduction
Before this Court is Appellee's motion for reargument pursuant to Superior Court Civil Rule 59(e). In a letter to the Court, Appellant David Johns indicated that he did not wish to offer any additional argument in response to the motion for reargument. Based upon the following, the Court's original order to remand the case is vacated.
Background
This motion arises from Johns' appeal of a decision of the Council of the Delaware Association of Professional Engineers ("DAPE") revoking his professional engineering license. Originally this Court concluded that DAPE failed to follow its procedure when it provided Johns with 26 days notice, rather than the 30 days notice required in 24 Del. C. § 2824(c). In its decision this Court took notice of the fact that the Administrative Procedures Act at 29 Del. C. § 10131(d) requires only 20 days notice, but because of the seriousness of the action against Johns, the Court concluded that the 30 day notice requirement should apply. Based upon this, the Court remanded the case back to DAPE. The State then filed this motion for reargument.
Discussion
Superior Court Civil Rule 59(e) permits a party to file a motion for reargument within 5 days after the filing of the Court's opinion. When determining a motion for reargument, the Court must consider whether it overlooked a precedent or legal principle that would have controlling effect or whether it has misapprehended the law such as would affect the outcome of the decision.
Board of Managers of the Delaware Criminal Justice System v. Gannett Co., 2003 Del. Super. LEXIS 27, *3-4.
The State contends that because the Administrative Procedures Act was enacted after 24 Del. C. § 2824(c), the notice requirement of the APA is controlling. In support of its contention, the State points to a Supreme Court decision in which the Court concluded that when there is irreconcilable conflict between two statutes, the later enacted statute controls. Further the State argues that the Court disregarded the holding of Kreshtool v. Delmarva Power Light Co. when it concluded that the agency should be in strict compliance with its notice rules.
State v. Minner, 448 A.2d 227, 229 (Del. 1982).
Upon further consideration, this Court finds that because the 20 day notice requirement in the APA was enacted after the 30 day notice requirement in 24 Del. C. § 2824(c), the 20 day notice requirement found in 29 Del. C. § 10131(d) is controlling in this case. Based upon Minner, the Court finds that because there is an irreconcilable conflict between the two statutes, that is § 2824(c) requires 30 days notice and § 10131(d) requires only 20 days notice, the more recently enacted statute would control. Thus, the notice provided to Johns 26 days prior to the hearing date was in compliance with the statute and thus was proper.
Id.
However, this Court disagrees with the State's assertion that administrative agencies need not strictly comply with their notice requirements. With an issue as important as the loss of one's professional license, the idea that an agency would not strictly comply with their notice requirements is disturbing to this Court. A professional license is property within the Fourteenth Amendment to the United States Constitution and as such is afforded due process protection. Thus, the party must receive notice of the time, date, place and subject matter of the proceeding and must have adequate time to prepare his or her case. In this type of case, it appears that compliance with the notice provision would be necessary to allow the party to have time to prepare an adequate defense.
The State relies upon Kreshtool v. Delmarva Power Light Co., 310 A.2d 649 (Del.Super.Ct. 1973), in making this argument.
Cain v. Delaware State Board of Accountancy, 1989 Del. Super. LEXIS 427, *5.
Id. at *6.
Conclusion
Based upon a further review of the statutes and case law, this Court concludes that the notice Johns received was adequate as provided in 29 Del. C. § 10131(d). Therefore, the Court's previous order to remand the case to DAPE is vacated. In a future decision, the Court will consider the additional arguments raised by Johns in his original appeal.
Johns contended that the Council erred in relying upon the expert testimony of Brian Carbaugh and that the Council's punishment was excessive.
IT IS SO ORDERED.