Nebraska Lawsuit Seeks To Block Governor From Certifying Medical Marijuana Initiatives That Voters Approved At The Ballot

“The time for that reckoning is now, before further taxpayer funds are spent on a futile effort.”

By Zach Wendling, Nebraska Examiner

A top opponent of medical cannabis in Nebraska filed a new lawsuit Tuesday seeking to void two successful 2024 ballot measures to legalize and regulate the drug.

Gov. Jim Pillen (R) has until Thursday under the Nebraska Constitution and state law to declare which measures were successful.

John Kuehn of Heartwell, a former state senator and former member of the State Board of Health, filed his second lawsuit this fall against the Nebraskans for Medical Marijuana campaign, as well as Nebraska Secretary of State Bob Evnen (R). The new lawsuit was filed in Lancaster County District Court, where Kuehn on November 26 lost and is appealing a related case.

The latest lawsuit, which includes Pillen this time, argues state-level marijuana laws are “unconstitutional, unlawful, and impossible” and that the campaign’s efforts to create and delegate exclusive regulation of the drug to a new executive agency is prohibited.

“The votes were held on two activist-drafted initiative measures which had, to that point, evaded any judicial review for their compliance with the United States Constitution or Nebraska Constitution,” the lawsuit states. “The time for that reckoning is now, before further taxpayer funds are spent on a futile effort.”

‘State-led independence and innovation’

Thirty-eight states already authorize some form of medical cannabis, about two dozen of which also allow recreational marijuana sales and distribution.

Crista Eggers, one of three sponsors for the ballot measures and the campaign manager, said Tuesday that 48 other states have laws legalizing some form of cannabis or its derivatives. She said Nebraskans last month made it “overwhelmingly clear that they support safe and regulated medical cannabis access.”

“The assertion that Nebraska’s new medical cannabis laws violate the Supremacy Clause of the U.S. Constitution disregards decades of state-led independence and innovation,” Eggers said in a statement. “Under the 10th Amendment of the Constitution, states have the right to address the unique needs of their citizens without undue interference.”

Eggers continued: “The campaign remains committed to defending Nebraska’s medical cannabis laws to ensure patients and families have access to the care they deserve.”

If successful, Kuehn’s lawsuit could have ripple effects, including serving as a vehicle to challenge marijuana laws in other states. The federal government has been in the process of reclassifying marijuana as a less dangerous drug.

The medical cannabis campaign had no immediate comment on Tuesday evening.

Measures set to take effect

Kuehn previously argued that the measures would violate federal law if successful when he filed his first lawsuit on September 12. The core of that case alleged the measures should not have been placed on the ballot to begin with by Evnen. He argued neither secured enough valid petition signatures. His previous lawsuit included the new lawsuit’s broader arguments and later withdrew them.

Evnen, represented by the Attorney General’s Office as a defendant in Kuehn’s case, later joined Kuehn’s challenge to invalidate the measures. Evnen and the AG’s Office alleged widespread petition circulator fraud and notarial malfeasance. Evnen himself certified the initiatives for the ballot.

Lancaster County District Judge Susan Strong denied the arguments from Kuehn and Evnen, and Kuehn has appealed the case to the Nebraska Court of Appeals.

On December 2, the State Canvassing Board—which consists of Pillen, Evnen, Attorney General Mike Hilgers, State Treasurer Tom Briese and State Auditor Mike Foley—unanimously approved the election results for Initiative Measures 437 and 438 at the November 5 election.

Those measures respectively passed with 71 percent and 67 percent voter approval.

Strong was assigned Kuehn’s new case as well, which is headed to her courtroom Wednesday afternoon. She will consider an initial request to block Pillen from formally signing the measures into law.

The Governor’s Office has not responded to multiple requests for comment on if or when Pillen will sign those proclamations. The office had no immediate comment on the lawsuit.

Staff for Evnen did not respond to requests for comment Tuesday evening. A spokesperson for Hilgers, whose office defends state officials, declined to comment.

‘Squarely at odds’ with federal law

Kuehn’s attorneys urged Pillen in a letter Friday not to sign the proclamations. The letter gave him until Tuesday morning to respond. They argued Pillen is “under no such compulsion” to declare the measures successful because federal law classifies marijuana as a dangerous drug.

Kuehn attorney Edward Greim of Kansas City, Missouri, whose past clients include associates of President-elect Donald Trump after the 2020 election and former Missouri Gov. Eric Greiten against a 2018 impeachment threat, wrote that Pillen has a greater duty: to the U.S. and Nebraska Constitutions.

“This scheme places Nebraska squarely at odds with several federal statutes intended to strictly circumscribe the dissemination of marijuana and the business of profiting from, or laundering money gained through, marijuana production and sales,” Greim wrote.

Greim’s letter points to a 2019 Nebraska Attorney General’s Opinion, authored by then-Attorney General Doug Peterson and then-Deputy Solicitor General Dave Lopez, who is now Pillen’s chief of staff.

Greim wrote that Pillen “has not only the power, but also the duty, not to issue a proclamation giving legal effect to an initiative that violates the Nebraska and the United States Constitutions and is therefore no law at all.

“We are confident that your office will exercise its duty not to expend any taxpayer resources by preparing and issuing a proclamation declaring the Marijuana Measures to be valid Nebraska laws,” Greim continued, adding legal action could follow.

The 2019 AG’s opinion, which is advisory and does not carry the weight of law or a judicial opinion, said any state laws regarding cannabis would be unconstitutional. This partly led to the defeat of a previous legislative bill from State Sen. Anna Wishart of Lincoln, another ballot sponsor who Kuehn is suing.

Former State Sen. Andrew La Grone of Dunbar requested that opinion in 2019. He is one of Kuehn’s attorneys.

Pillen’s staff did not respond, the lawsuit alleges, and Kuehn’s lawsuit was filed just before 3 p.m. Tuesday.

Kuehn’s request

Measure 437 would legalize up to 5 ounces of medical cannabis with a written doctor’s recommendation, while Measure 438 would establish the Nebraska Medical Cannabis Commission to regulate the drug and license medical retailers by October 1, 2025.

Kuehn offers three reasons to prevent Pillen from issuing proclamations in favor of the initiatives:

“The governor lacks authority to issue a proclamation that violates the Nebraska Constitution,” the lawsuit states.

This story was first published by Nebraska Examiner.

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Photo courtesy of Brian Shamblen.