The Oklahoma Bankers Association has thrust a rhetorical monkey wrench into the efforts of interstate branching opponents, sparking a lively legal controversy.
At issue is whether a state can "opt back in" after it "opts out" of interstate branching.
Some lawyers have argued that the Riegle-Neal Interstate Banking and Branching Act does not allow a state to "opt back in" once its legislature decides to forgo the branching provisions of the act. Some have argued otherwise.
The issue has introduced the first uncertainty into the opt-out debate currently raging in a bloc of central and southwestern states.
"This question is nothing more than a last-minute effort to distract the community banking industry," said James McKeown, director of the Community Bankers Association of Oklahoma. "There's no question that it's been a tool used by those who are fighting opt out."
Mr. McKeown's group is lobbying state legislators to keep Oklahoma from opting into the branching law.
"All I've been saying from the beginning is that this is an open question - you can read it both ways, and the language is unclear," said Roger Beverage, president of the Oklahoma Bankers Association. "A court will ultimately have to decide the question."
The Riegle-Neal law allows full interstate branching by national banks by June 1997. States, however, have the option of "opting out" of the branching provision if they enact a law to that effect before 1997. However, two legal opinions are circulating that argue once a state has opted out, it can never opt in.
The question is important because several of the eight states currently considering opt-out legislation could eventually change their minds.
Mr. Beverage, a former Nebraska bank commissioner, is promulgating the opinion to bolster his argument to Oklahoma legislators that opting out would, ultimately, damage banking in the state because its banks would never be able to branch across state lines.
The opinion, supplied by the Oklahoma City law firm Day, Edwards, Federman, Propeater & Christiansen, said language that would have allowed states to "opt back in" to branching was not inserted into Riegle-Neal in conference committee. Using this premise, the Day opinion argued that Congress did not expressly grant states the right to "opt in" to interstate branching through the repeal of an earlier "opt out" statute.
Opinions, from Foss & Moore of Bismarck, N.D., and Barnett & Sivon of Washington, back up the Day opinion for the same reasons.
"We don't think much of those opinions," said Peter Kravitz, legislative counsel at the Independent Bankers Association of America, which fought for states rights in the Riegle-Neal act.
Indeed, the Day opinion is called "erroneous" by at least two authorities on banking law. Arthur Wilmarth, a partner at Barley, Snyder, Senft & Cohen, Lancaster, Pa., provided the Conference of State Bank Supervisors with an opinion arguing that the Day opinion relies on "congressional silence" to infer a prohibition against opting back into the law. Mr. Wilmarth said this inference is "contrary to controlling principles of legislative authority and federal presumption analysis" and would single-handedly take away any state's right to repeal any law it enacts. Bracewell & Patterson, in an opinion provided to the Independent Community Banks of North Dakota, agreed.
Nonetheless, the issue popped up again in Colorado when large banks, pushing Gov. Roy Romer to veto an opt-out bill, warned that there's a chance his signing the bill could forever keep banks from branching across state lines.
"There is a substantial body of opinion out there that says if you opt out now you can't opt back in," said William Nicholson, chairman of First Bank System Inc. unit Colorado National Bank. "Sure, there's differing opinions, but all we're saying is let's wait on this until it's resolved."
