State Bank Charter Application of Sec. Bank, Buffalo, Matter of

• Decision Date: 05 February 1980
• Docket Number: No. 5153,5153
• Parties: In the Matter of STATE BANK CHARTER APPLICATION OF the SECURITY BANK, BUFFALO, Wyoming. WYOMING BANK & TRUST COMPANY OF BUFFALO, Wyoming, Appellant (Petitioner), v. Dwight D. BONHAM, State Bank Examiner, State of Wyoming, Appellee (Respondent), Security Bank of Buffalo, Wyoming, Appellee (Applicant).
• Court: Wyoming Supreme Court

Page 296

606 P.2d 296

In the Matter of STATE BANK CHARTER APPLICATION OF the SECURITY BANK, BUFFALO,

Wyoming. WYOMING BANK & TRUST COMPANY OF BUFFALO, Wyoming, Appellant (Petitioner), v. Dwight D. BONHAM, State Bank Examiner, State of Wyoming, Appellee (Respondent),

Security Bank of Buffalo, Wyoming, Appellee (Applicant).

No. 5153.

Supreme Court of Wyoming.

Feb. 5, 1980.

Rehearing Denied Feb. 26, 1980.

William J. Kirven, Buffalo, and David D. Uchner, Cheyenne, for appellant.

Kenneth G. Vines, Asst. Atty. Gen., and Henry A. Burgess, Sheridan, argued for appellees; John D. Troughton, Atty. Gen., on brief of appellee Bonham.

Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. ^*

RAPER, Chief Justice.

This case involves the issuance of a state bank charter by the State Bank Examiner (Examiner) after an investigation and a public hearing which were conducted in accordance with procedures established in § 13-44(c) ¹, W.S.1957, 1975 Cum.Supp. ² The question presented is essentially this: Where the Examiner conducts an investigation and public hearing into an application for grant of a new state bank charter and after the evidence has been presented to the Examiner by the parties participating in the hearing, if the Examiner then goes to the community where the new bank is to be located, without giving advance notice to the parties, and inquires into matters relating to the application, may a party aggrieved by the ultimate decision of the Examiner complain on appeal to the district court that the Examiner's independent investigation was illegal and invalidates the grant of the new bank charter? An additional concern is that while the Examiner contacted the parties during his visit he did not place in the record the results, if any, of his investigation nor were the parties afforded an opportunity sua sponte by the Examiner to rebut what he may have learned during his visit.

We will hold that this issue cannot be raised for the first time on appeal under the circumstances of this case and that activities of the Examiner described by appellant were not "misconduct" in the sense intended by Rule 12.08, WRAP. We will affirm.

On August 24, 1976, an application to organize and operate a third bank in Buffalo, Wyoming was filed by the applicant-appellee Security Bank of Buffalo, Wyoming, with the office of the State Bank Examiner. The protestant-appellant Wyoming Bank & Trust Co. of Buffalo, Wyoming, as well as others who did not join in this appeal, protested the application and requested a public hearing. On December 5, 1977, a hearing was held by the Examiner at which evidence for and against the application was received. After this hearing, but prior to a decision, the Examiner made a trip to Buffalo, Wyoming. The appellant described the activities of the Examiner on that trip thus:

"Subsequent to the hearing, but prior to a formal decision, Dwight Bonham conducted a number of informal investigations relating to the application. These investigations consisted, Inter alia, of a trip to Buffalo and Sheridan, Wyoming, on March 29, 1978, to discuss with residents and businesses of Buffalo the need for a third bank; an investigation into the proposed location of the applicant bank and the economy of the Buffalo community; private conferences with various directors and shareholders of the community's existing banks; conversations with county employees; private conferences with applicant organizers; and the acceptance of a dinner invitation by one of the applicant organizers, Mr. Robert Ferril, who was and is president of the Bank of Commerce in Sheridan, a bank controlled by the Scott family which controls the application bank as well as the Security Bank in Sheridan. * * * Mr. Bonham made inquiries concerning past history, ownership and control of the established banks in Buffalo, including particular stock acquisitions. * * * Mr. Bonham made inquiries concerning the possible rejection of loan applications by qualified applicants, such information having been allegedly supplied by out-of-town bankers whose names Mr. Bonham would not supply. * * * Mr. Bonham also made statements to certain members of the community during his visit that the organizers appeared to be intelligent and willing individuals who deserved a chance to risk their money on the venture of establishing a new bank in Buffalo. * * * The State Examiner did not call for nor did he hold any subsequent hearing following these off-the-record investigations."

On July 5, 1978, the Examiner issued his Findings of Fact, Conclusions of Law, and Decision and Order approving and granting the application for a bank charter. On August 3, 1978, the appellant filed a petition for review in the district court. Prior to a hearing on that petition, appellant made application to the district court for leave to present additional evidence and further to take the deposition of the Examiner pursuant to Rule 72.1(h), W.R.C.P. ³ The district court denied the appellant's Rule 72.1(h) request and entered judgment affirming the decision of the Examiner. The appellant then brought its appeal to this court as permitted by the Wyoming Administrative Procedure Act. The issues are somewhat narrowed from those presented to the district court:

"1. Were the conversations and personal contacts made by the Wyoming State Bank Examiner after the hearing on the application for a state bank charter improper because such conversations and personal contacts constituted extra-record evidence, not made a part of the record, so that appellant bank was not given an opportunity to examine and refute such evidence?

"2. Was the visit to Buffalo, and Sheridan, Wyoming, and view of the community conducted by the Wyoming State Bank Examiner after the hearing on the application for a state bank charter, improper because such a view of the area constituted extra-record evidence, not made a part of the record, so that appellant bank was not given an opportunity to examine and refute such evidence?

"3. Are extra-record conversations and extra-record views of the premises and area impermissible unless such activities are officially noticed in accordance with the Wyoming Administrative Procedure Act?

"4. Can an administrative hearing officer base a decision in whole or in part on evidence, the source of which he refuses to disclose to the parties, without violating minimal standards of due process?

"5. Appellant having demonstrated that the State Examiner had private post-hearing interviews with some identified and some unidentified persons relating to the granting of the bank charter application, did the district court commit reversible error in denying Appellant's application to develop further evidence on the issue of misconduct of this administrative hearing officer?

"6. Did the district court err in refusing the application of Appellant to take the deposition of the State Bank Examiner and other agents and representatives of the State Examiner's office?

"7. Did the district court err and deny due process to Appellant in entering its Judgment on May 3, 1979, confirming the decision of the State Bank Examiner when the district court acknowledged in its Judgment that the Appellant was not given an opportunity to test or rebut the post-hearing information privately gathered by the State Examiner?

"8. Was the decision of the State Bank Examiner reached in conformity with the law?

"9. Based upon the evidence appearing in the record and in the State Bank Examiner's findings of fact, was the decision granting a charter to Security Bank arbitrary, capricious, and an abuse of discretion?"

The issues described in items (1) through (5) above were never called to the attention ⁴ of the Examiner and as said in Wyoming Bancorporation v. Bonham, Wyo.1974, 527 P.2d 432, 439:

"Unless adverse parties appearing before administrators or administrative bodies are required to frame issues and contentions for decision by the hearing body, such hearings will become meaningless charades necessitating upon appeal what would be factually a trial de novo contrary to the purpose and philosophy of the Administrative Procedure Act. For a reviewing court to reach an asserted proposition of an appellant the issue must have been raised for decision before the administrative body or administrator responsible for the decision. This is admirably expressed by the United States Supreme Court in the case of United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 73 S.Ct. 67, 68-69, 97 L.Ed. 54, where it is said:

" 'We have recognized in more than a few decisions, and Congress has recognized in more than a few statutes, that orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the court. * * *'

"See additionally, Moog Industries v. Federal Trade Commission, 355 U.S. 411, 78 S.Ct. 377, 380, 2 L.Ed.2d 370, rehearing denied 356 U.S. 905, 78 S.Ct. 559, 2 L.Ed.2d 583, and United States v. Elof Hansson, Inc., 48 C.C.P.A. 91, 296 F.2d 779, 781, certiorari denied 368 U.S. 899, 82 S.Ct. 179, 7 L.Ed.2d 95, following Tucker Truck Lines, and with a further discussion. Further, objections must have had particularity as to properly identify the question and to give notice of the contention, National Labor Relations Board v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 290-291, 97 L.Ed. 377. Thus, in our view the competition as between these two banks was never properly posed to the examiner and we cannot now consider or order him to consider it. There must be some finality even in administrative proceedings, as in judicial proceedings, Martellaro v. Sailors, Wyo., 515 P.2d 974, 976."

This rule is nothing more than a rephrasing of the standard appellate rule that issues not raised before the trial court will not be considered for the first time on appeal....