Attorneys weigh in on whether to dismiss Nebraska medical cannabis lawsuit

Lancaster County District Judge Susan Strong. Sept. 20, 2024. (Zach Wendling/Nebraska Examiner)

LINCOLN — A Lancaster County District Court judge will decide soon from a set of new briefs filed Tuesday whether to dismiss a lawsuit against Nebraska’s two medical cannabis ballot measures.

Judge Susan Strong set the Tuesday deadline for the parties identified in the lawsuit to weigh in. John Kuehn of Heartwell, a veterinarian, rancher, former state senator and former member of the Nebraska State Board of Health, brought the lawsuit. The suit named Secretary of State Bob Evnen and the three sponsors of the Nebraskans for Medical Marijuana campaign.

The sponsors are Lincoln State Sen. Anna Wishart, campaign manager Crista Eggers and former State Sen. Adam Morfeld of Lincoln.

Strong said last Friday she intended to “ narrowly ” issue a decision at the end of this week on the motion from Wishart, Eggers and Morfeld to dismiss the case. It got more complicated after Evnen asked the court to take up the case anyway and determine, once and for all, the true number of valid signatures.

The two petitions at center, set to appear on the Nov. 5 ballot , are:

• Initiative Measure 437, the Nebraska Medical Cannabis Regulation Act — Define cannabis; legalize possessing, manufacturing, distributing, delivering and dispensing cannabis for medical purposes; and create the Nebraska Medical Cannabis Commission to oversee the new state law.
• Initiative Measure 438, the Nebraska Medical Cannabis Patient Protection Act — Set an allowable amount of medical cannabis at five ounces; exempt patients and caregivers from using or assisting someone else in using the cannabis; and require a written recommendation from a health care practitioner prior to prescription.

‘Nebraska’s pro-initiative public policy’

Kuehn’s lawyers wrot e that the “indignation” at Kuehn’s decision to pursue the case is “misplaced,” alleging thousands of allegedly fraudulent signatures that are enough to disqualify the efforts.

“Nebraska’s pro-initiative public policy does not allow initiative petitions to bypass judicial review,” Kuehn’s brief states.

Kuehn has been a leader in “Smart Approaches to Marijuana,” or SAM, a national organization that seeks to prevent “another big tobacco.”

The Wishart-Eggers-Morfeld brief argued that Kuehn “requests the equivalent of a recount” and that he implies that he is “best equipped to make important election decisions” that already went through a robust process with various local resources and tools to determine validity.

“They [Kuehn and his attorneys] also threaten the initiative process more generally — a process the Nebraska Supreme Court reiterated just last week is ‘precious to the people and one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter,’” the Sept. 20 brief states.

Kuehn’s attorneys pushed back on that “breathless and inflammatory characterization” and pointed to Evnen, who is asking the court to definitively determine the number of valid signatures in addition to Evnen’s completed work .

‘Public confidence’ in elections

Evnen’s brief was written in part by Nebraska Attorney General Mike Hilgers, a former state lawmaker. Hilgers has opposed medical cannabis and delta-8, which contains THC, the compound in the cannabis plant most commonly associated with getting a person high.

Hilgers is also investigating alleged fraud on the cannabis petitions , which uncovered at least one instance of alleged petition fraud that led to the arrest of a Grand Island man on felony charges.

However, the Evnen-Hilgers brief suggests a broader reason to take up the lawsuit, stating that “Public confidence in the electoral process is the bedrock of democratic governance.”

Citing a 2012 report from the Global Commission on Elections, Democracy and Security , the Evnen brief states that credible elections are needed to avoid a risk of “rotting the entire political system slowly from within.”

Evnen’s attorneys state that he defends his office, election workers and the validation process and that Evnen must “vigilantly and zealously guard the integrity of all aspects and phases of the electoral process.”

Evnen is pursuing the claim because the Grand Island example “gave rise to suspicion of an unusual and serious irregularity,” the Attorney General’s Office writes.

“Serious irregularities of that sort undermine public confidence in the electoral process,” the Attorney General’s Office wrote on Evnen’s behalf. “It is imperative these irregularities be investigated and any uncertainty regarding the validity of signatures which may be tainted by fraud or malfeasance is authoritatively resolved.”

The ‘presumption of validity’

The Evnen brief contends that at least one notary, who signed off on the Grand Island man’s petitions when he was allegedly not in the notary’s presence, also calls into question more signatures.

On those petitions, the brief reads, the “presumption of validity” of those signatures is lost, but the sponsors could present evidence and have those signatures be “rehabilitated.”

“To be sure, stripping the presumption of validity is strong medicine,” the Evnen brief states. “But it is justified here.”

Kuehn’s attorneys join Evnen in arguing the Grand Island allegations call “into doubt” thousands more signatures.

Evnen and Hall County Election Commission Tracy Overstreet have confirmed that the allegedly fraudulent signatures were excluded prior to the ballot being certified for the Nov. 5 election.

The sponsors’ attorneys argue Evnen hasn’t identified a single signature that was “erroneously counted” during verification.

“In fact, in the same pleading, he [Evnen] affirmatively denies Plaintiff’s allegations that he incorrectly counted signatures,” the sponsors’ brief states.

The sponsors’ attorneys state the Kuehn lawsuit and Evnen’s allegations would lead to determining whether to revalidate more than 228,000 signatures on both petitions.

Kuehn’s allegations included signatures from voters who did not provide their full information (birth date, address, signature and more) or from voters who signed the petition but the petition circulators did not disclose whether they were paid.

The briefs from Kuehn and Evnen argue that the paid vs. unpaid circulator requirement is a serious one that the courts shouldn’t overlook and which should be up to the sponsors to defend.

‘Single subject’ allegations

Kuehn also argues that the measure related to regulating medical cannabis consists of various “subjects,” in violation of the Nebraska Constitution, contending that creating a new commission is different from decriminalizing cannabis for private entities.

The attorneys for Wishart, Eggers and Morfeld pointed to 2020, when a successful ballot measure on gambling led to expanding the Nebraska Racing Commission to become the Nebraska Racing and Gaming Commission to oversee expanded gaming. They also argue the topics are “naturally and necessarily related” as the Nebraska Supreme Court requires.

Also in 2020, when the high court decided the gambling petitions’ constitutionality for the ballot, it also tossed a sole medical cannabis petition from the ballot on the single subject grounds. As a result, the sponsors divided the petition into two parts in later ballot drives .

Kuehn’s attorneys state the cannabis effort is different than gambling because no “natural regulator” existed for gambling at the time, while the Nebraska Department of Health and Human Services, and the Board of Pharmacy, already oversees all drugs and prescriptions.

“Creating a new executive entity purely to regulate one drug is neither natural nor necessary to the general purpose of providing for the regulation of medical cannabis,” Kuehn’s brief states.

In Evnen’s first response to the court last week, his attorneys argued the single subject issue should be up to the court’s ​​”ultimate determination.” However, the brief filed Tuesday states that Evnen “firmly opposes” the challenge.

The legal requirements of a court case

The ballot sponsors argue Evnen’s “cross-claim” is “entirely hypothetical,” with the secretary of state on one hand denying Kuehn’s allegations while on the other arguing that the court should weigh in.

“Rather than defend the work of his office and election officials across the state, Secretary Evnen asks the Court to perform his ministerial duties,” the sponsors’ brief states.

The sponsors argue the court can’t yet decide the case because there isn’t yet an “actual case or controversy.” Citing past court cases, the brief states courts can’t decide facts that are “future, contingent or uncertain.”

“The cross-claim is full of conclusory allegations that are insufficient to survive a motion to dismiss — unsurprising since the facts on which his claim relies do not presently exist (and likely never will),” the sponsors’ attorneys wrote. “… The cross-claim presents an unripe, nonjusticiable issue, and the Court lacks jurisdiction.”

The Evnen brief states the court can help Nebraskans have the “utmost faith” in the integrity and fairness of Nebraska elections and electoral processes.

Unless that certainty is resolved, the brief continues, Evnen’s satisfaction with and his ability to carry out the duties of his office “will be stymied.” He and Hilgers argue that the public needs assurance that doesn’t encroach on the authority of public ballot initiatives or referendums.

“Honoring the constitutional and statutory requirements that protect the integrity of the electoral process facilitates rather than frustrates the exercise of those powers,” Evnen’s states.

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