New Hampshire Bankers Ass'n v. Nelson

• Decision Date: 29 March 1973
• Docket Number: No. 6540,6540
• Citation: 302 A.2d 810,113 N.H. 127
• Parties: NEW HAMPSHIRE BANKERS ASSOCIATION v. James W. NELSON, Bank Commissioner.
• Court: New Hampshire Supreme Court

Page 810

302 A.2d 810

113 N.H. 127

NEW HAMPSHIRE BANKERS ASSOCIATION v. James W. NELSON, Bank Commissioner.

No. 6540.

Supreme Court of New Hampshire.

March 29, 1973.

Craig & Wenners (William H. Craig and Vincent A. Wenners, Jr., Manchester, orally), for plaintiff.

Warren B. Rudman, Atty. Gen., and Edward A. Haffer, Bow, for defendant.

GRIMES, Justice.

The New Hampshire Banker's Association has filed an appeal under RSA ch. 541 or in the alternative a petition for writ of certiorari from the State bank commissioner's action regarding the issuance of 'Negotiable Orders of Withdrawal' by the New Hampshire Savings Bank of Concord. The bank commissioner has filed a motion to dismiss both proceedings in this court.

The parties agree to the following set of facts solely for the purpose of considering the motion to dismiss. The New Hampshire Savings Bank of Concord began issuing in September of 1972 certain accounts called 'Negotiable Orders of Withdrawal' or N.O.W. accounts. The plaintiff, New Hampshire Banker's Association, representing the class of all commercial banks in New Hampshire, immediately protested such issuance to the bank commissioner on the grounds that 'such activity is beyond the scope of the New Hampshire Savings Bank'. The plaintiff further requested a hearing before the bank commissioner and a restraining order on this type of service pending the bank commissioner's determination of the issue. The bank commissioner after investigating the facts and law pertaining to the issuance of the N.O.W. accounts replied to plaintiff by letter dated October 26, 1972, in which he denied plaintiff a hearing as unnecessary to an investigation and as 'without precedent' and stated that after his investigation he 'determined that the activity of New Hampshire Savings Bank in offering negotiable orders of withdrawal does not constitute a violation of the New Hampshire Banking Statutes.'

The plaintiff contends that this letter constitutes an erroneous decision by the commissioner subject to judicial review under RSA 384:1-a (Supp.1972) and RSA ch. 541 or in the alternative provides grounds for a petition for writ of certiorari. The commissioner contends that the association does not have standing to contest the issuance of N.O.W. accounts; that he had no duty to conduct a hearing or issue a decision on plaintiff's complaint; that his letter to the plaintiff does not constitute a decision of legal consequence; and that if the letter is of legal consequence, it should be reviewed only under a petition for writ of certiorari which this court should deny in its discretion.

The defendant supports his lack-of-standing contention by arguing adoption of the federal bipartite standing test wherein the complainant must allege not only that he suffered 'injury in fact' but also that 'the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute . . ..' Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184, 188 (1970); (hereinafter cited as Data Processing) Davis, Administrative Law Treatise § 22.00-1 (1970 Supp.).

The second part of this test has been severely criticized by those favoring the single injury in fact test that has been adopted by most State courts. Id. § 22.00-3. We hold that the legislature has indicated a preference for the single 'injury in fact' test in appeals under RSA ch. 541. RSA 541:3 provides: 'Within twenty days after any order or decision has been made by the commission, any party to the action or proceeding before the commission or any person directly affected thereby may apply for a rehearing in respect to any matter determined in the action or proceeding, or covered or included in the order . . ..' (Emphasis added). RSA 541:8 likewise states, 'Any person or corporation whose rights may be directly affected by said appeal may appear and become a pary, . . .' (Emphasis added).

Plaintiff was a party before the commissioner and is a person directly affected by his ruling. There is no question but that plaintiff will suffer an 'injury in fact' since the offering of N.O.W. accounts will allow savings banks to compete with the checking accounts of commercial banks. Data Processing supra; Arnold Tours, Inc. v. Camp, 400 U.S. 45, 91 S.Ct. 158, 27 L.Ed.2d 179 (1970). This is sufficient to give plaintiff standing to appeal from the commissioner's action under RSA ch. 541 as provided by RSA 384:1-a (Supp.1972).

Cases such as Clapp v. Jaffrey, 97 N.H. 456, 91 A.2d 464 (1952), and N.H. Board, etc. v. Scott Company, 90 N.H. 368, 9 A.2d 513 (1939), do not require a different result since here we are determining only the question of standing and not the merits of plaintiff's claims.

We have no concern that if this plaintiff is allowed to proceed the controversy will suffer from any lack of adverseness which may be essential to its proper resolution. See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).

The commissioner contends that his letter to the plaintiff constitutes merely a gratuitous, informal response to plaintiff's inquiries rather than an official administrative 'decision, order or ruling' reviewable under RSA 384:1-a (Supp.1972). The label the commissioner places on this letter is not determinative of the letter's actual or purported substantive effect. Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942). Informal letters...