Colorado § 11-102-204 - Court review.

§ 11-102-204. Court review.

(1) Any person aggrieved and directly affected by an order of the banking board issued under this code may seek a review in the district court in and for the county in which the bank is located, or proposed bank is to be located, within thirty days after receipt of written notice of the issuance of said order; except that any person aggrieved or directly affected by an order of the banking board pursuant to section 11-103-304 granting or denying a charter for a new state bank may seek a review in the court of appeals and not the district court. Such review in the court of appeals shall be in accordance with section 24-4-106 (11), C.R.S. The validity of an order may be tested only by such a review and may not be placed in issue in an action to enforce it. The filing of such a petition for review shall not, of itself, stay enforcement of an order, but the court may order a stay upon such terms as it deems proper.

(2) The court may affirm the order of the banking board or may direct the banking board to take any action deemed proper. It may reverse or modify the order of the banking board if the order was issued pursuant to an unconstitutional statutory provision, was in excess of statutory authority, was issued upon unlawful procedure, or is not supported by substantial evidence in the record.

Source: L. 2003: Entire article added with relocations, p. 1067, § 3, effective July 1.

Editor's note: This section is similar to former § 11-2-105 as it existed prior to 2003.

ANNOTATION

I. General Consideration.

II. Reviewing Court.

III. Scope of Review.

IV. Order of Reviewing Court.

V. Procedure.

I. GENERAL CONSIDERATION.

Annotator's note. Since § 11-102-204 is similar to § 11-2-105 as it existed prior to the 2003 recodification of the "Colorado Banking Code", articles 101 to 109 of title 11, relevant cases construing that provision have been included in the annotations to this section.

Applied in Monroe Indus. Bank v. Bloom, 648 P.2d 686 (Colo. App. 1982).

II. REVIEWING COURT.

The commission's denial of an application is reviewable in a district court as provided by this section. Colo. Banking Bd. v. Finnigan, 139 Colo. 92, 336 P.2d 98 (1959).

No concurrent jurisdiction. This section was not intended to confer concurrent jurisdiction between the district courts and court of appeals. Nizel v. Banking Bd., 196 Colo. 98, 581 P.2d 306 (1978).

III. SCOPE OF REVIEW.

The state banking board may determine whether to grant bank charter and has jurisdiction to hold hearings to that effect. The district courts cannot usurp this power. Banking Bd. v. District Court, 177 Colo. 77, 492 P.2d 837 (1972).

Board may use expertise which may not be disturbed by court. Convenience is only one of the factors the state banking board was entitled to consider in determining whether the proposed bank would serve a "public need and advantage" in the area. Other factors, such as the already highly competitive nature of banking in the area, outweighed the convenience factor. It was within the board's competence, applying its expertise, to make this determination, and it should not be disturbed on review. Goldy v. Henry, 166 Colo. 401, 443 P.2d 994 (1968).

Court cannot affirm board's order which exceeds statutory tolerances. Where the business location of a proposed bank as described in the banking board's order exceeds the statutory tolerance and does not conform to the proposed location which was specified in the notice of hearing, the conclusion of law made by the district court that the banking board's order was valid insofar as it described the possible location of the proposed bank was in error, and that portion of the district court's judgment would be reversed. Academy Blvd. Bank v. Banking Bd., 30 Colo. App. 331, 492 P.2d 76 (1971).

Court cannot disregard all evidence given to board by interested parties. In reversing the state banking board, the reviewing court disregarded virtually all of the evidence presented by the protesting banks, on the ground that only one of their witnesses was "neutral" or disinterested. Most of the applicants' witnesses were as interested as the protestants' witnesses. The fact that these witnesses had an interest in the outcome of the hearing may affect the weight to be given their opinions, but it does not require the board to assume that these witnesses were not telling the truth when they testified as to factual matters. Goldy v. Henry, 166 Colo. 401, 443 P.2d 994 (1968).

It is up to the board to weigh evidence. The weighing and evaluation of the testimony and evidence offered as to an application for a charter is the statutorily delegated power and responsibility of the banking board, and it is beyond the power of a reviewing court to substitute its judgment for that of the fact-finding authority. Academy Blvd. Bank v. Banking Bd., 30 Colo. App. 331, 492 P.2d 76 (1971).

It is also the board's duty to determine the credibility of witnesses. The credibility of witnesses as well as the weight of the testimony are peculiarly within the province of the board to whom a statute entrusts the fact-finding process. When a conflict in the evidence exists, it is not within the power of a reviewing court to substitute its judgment for that of a fact-finding authority as to the weight of the evidence and the credibility of witnesses. Goldy v. Henry, 166 Colo. 401, 443 P.2d 994 (1968).

IV. ORDER OF REVIEWING COURT.

Reviewing court may modify board's order if basis for modification is on the record. Where the basis for modification of the banking board's order appears in the record, the court may modify and correct that order on appeal. Academy Blvd. Bank v. Banking Bd., 30 Colo. App. 331, 492 P.2d 76 (1971).

This section provides that the reviewing court may affirm the order of the board, direct the taking of any action deemed proper, or may reverse or modify the order of the banking board if it is not supported by substantial evidence in the record. Banking Bd. v. Holyoke Indus. Bank, 152 Colo. 489, 383 P.2d 318 (1963).

There was substantial evidence supporting the banking board's finding of extraordinary circumstances where examinations of the bank over a period of five months revealed a continuing deterioration of its financial status, a negative capital assessment which continued to worsen over time, a failure of the bank to comply with the banking board's order to levy an assessment, the insolvency of one of the bank's major shareholders, and the bank's inability to demonstrate the ability to secure an investor or otherwise inject the necessary capital in the immediate future. First Bank v. Dept. of Regulatory Agencies, 852 P.2d 1345 (Colo. App. 1993) (decided prior to 1989 repeal and reenactment).

V. PROCEDURE.

Extent to which court of appeals governed by rules of civil procedure. Under this section, judicial proceedings to review the banking board determinations originate in the court of appeals. Therefore, to the extent that appellate rules are inadequate in this situation, the court of appeals is governed by the Colorado rules of civil procedure. Columbine State Bank v. Banking Bd., 34 Colo. App. 11, 523 P.2d 474 (1974).

Failure to join indispensable parties within statutory time for appeal is fatal defect. In an action in district courts to review administrative proceedings, failure to join indispensable parties prior to the expiration of the statutory time for appeal is a fatal defect which deprives the court of jurisdiction to entertain the action. Columbine State Bank v. Banking Bd., 34 Colo. App. 11, 523 P.2d 474 (1974).

PART 3

RECORDS, REPORTING, AND INFORMATION