Federal judge tosses Colorado marijuana banking lawsuit
Forcing Federal Reserve to bank on Fourth Corner Credit Union would give approval to criminal activity, federal judge says
By David Migoya, The Denver Post
A judge on Tuesday dismissed a lawsuit seeking federal approval for the first credit union for marijuana in Colorado, saying that allowing it “would facilitate criminal activity.”
U.S. District Judge R. Brooke Jackson said in a nine-page opinion that he was compelled to reject The Fourth Corner Credit Union’s suit because marijuana remains illegal under federal law.
The U.S. Department of Justice has issued guidelines on how banks can work with legal marijuana businesses — and that prosecutors would not pursue investigations unless certain guidelines were not met. But Jackson said he could not take that tack.
“These guidance documents simply suggest that prosecutors and bank regulators might ‘look the other way’ if financial institutions don’t mind violating the law,” Brooke wrote. “A federal court cannot look the other way.”
Colorado chartered Denver-based Fourth Corner as a credit union in November, allowing it to acquire a bank routing number and to apply directly to the Federal Reserve Bank of Kansas City, the regional bank for the board of governors of the Federal Reserve System, for a master account. The account allows banks to transact business. The Federal Reserve turned down the application.
Jackson noted that Fourth Corner’s arguments that the federal justice guidance, which were issued in February 2014 through the Financial Criminal Enforcement Network, was tacit approval for banking marijuana “is something of a sleight of hand.”
The government remains “committed to enforcement of” federal drug laws, Jackson said, and prosecutors “apply certain priorities in making enforcement actions, but it does not change the law.”
Marijuana banking issues
Credit union attorney Mark Mason, who helped in the founding of Fourth Corner, was not immediately available for comment on Jackson’s ruling. The Federal Reserve would not comment.
A separate credit union lawsuit against the National Credit Union Administration for refusing to issue share deposit insurance, a requirement for a master account, is pending in U.S. District Court in Denver. NCUA said it turned down Fourth Corner’s application on a number of grounds including concerns over the credit union’s ability to mitigate the risk of banking only marijuana businesses.
Like the Federal Reserve, NCUA asked the court to dismiss the lawsuit.
Jackson noted how bankruptcy courts cannot offer the same protection against creditors for a marijuana business as for another type of business. In a local case where owners of a medical pot dispensary filed for bankruptcy, “while the debtors have not engaged in intrinsically evil conduct, the debtors cannot obtain bankruptcy relief because their marijuana business activities are federal crimes,” Jackson quoted the Tenth Circuit Bankruptcy Appellate Court.
Tuesday’s decision is the latest setback in the credit union’s effort to become the first legal banking system for the marijuana industry.
Many, though not all, marijuana businesses have difficulty acquiring and holding a bank account because the product is illegal under federal law, which also governs the nation’s banking system.
As such, banks that do handle pot money, even though legal under state law, risk prosecution for money laundering. Also, federal banking regulators have said banks that do business with the pot industry could be held liable for their transgressions even if bankers are unaware of a businesses’ conduct or associations outside of Colorado.
Fourth Corner has been the closest anyone has gotten to solving a problem most say can only be corrected in Congress. Even Jackson agreed.
“I regard the situation as untenable and hope that it will soon be addressed and resolved by Congress,” the judge wrote in Tuesday’s opinion.
David Migoya: 303-954-1506, firstname.lastname@example.org or @davidmigoya