“There is no ‘great public interest’ in invalidating a law approved by a massive supermajority of Nebraska voters.”
By Zach Wendling, Nebraska Examiner
They blasted a lawsuit that was filed against them, calling it “meritless.” The suit also sought to create “a false conflict.”
Attorneys for 11 defendants listed in the lawsuit filed briefs on Friday. John Kuehn v. Gov. Jim Pillen Case explains why the defendants are seeking dismissal of the case.
Kuehn is a Republican former state senator and former member of the State Board of Health. A long-time marijuana critic, Kuehn brought this lawsuit in December. It sought to declare the voter-approved legalization and regulation of medical cannabis unconstitutional. In January, he expanded his case to include more officials.
It is argued in the suit that federal Controlled Substances Act preempts or makes Nebraska laws illegal.
Most cases are only allowed to proceed if a party can demonstrate that they have suffered direct damage as a result of a law, otherwise known “standing.”
Kuehn admits he doesn’t have standing to prove, so he uses the argument that his case is of “great interest” to Nebraskans or the taxpayer to try and get the ball rolling. Both standards are based upon the public spending, and the “greater public interest”.
Kuehn is not entitled to any of the standings that the lawyers representing five state officials and three commissioners from the Nebraska Medical Cannabis Commission, as well as the sponsors of the ballots have said.
“There is no ‘great public interest’ in invalidating a law approved by a massive supermajority of Nebraska voters which will be susceptible to challenge by many,” the attorney wrote for Bruce Bailey of Lincoln, Harry Hoch, Jr. of Omaha and Kim Lowe of Kearney, of the Nebraska Medical Cannabis Commission.
Kuehn’s team of lawyers did not immediately comment on these new documents. A briefing order issued by Lancaster County District Court Judge Susan Strong gives his legal team until the end of April to respond. Strong has set a May 20 hearing for an in-person review of the motions filed to dismiss the case. She ruled in Kuehn’s favor in an earlier marijuana related case.
Congress has a role to play
Kuehns’ lawsuit, according to the supporters of the ballot measure for medical marijuana was an “attempt” by Kuehn to “turn federalism completely upside-down.” Kuehn, they said, “supports a federally expansive government while weakening the state government to the detriment of Nebraska voters that just passed two laws with huge margins.”
The measure legalizing up to five ounces medical cannabis on a doctor’s prescription was overwhelmingly supported by voters, with 71% of them voting in favor. The measure received majority support from all 49 of Nebraska’s legislative districts. Second, a measure to regulate the medical use of cannabis by way of a newly-created commission was approved with 67 per cent support. It also received majority support from 46 districts.
Campaign attorneys said the federal government—under presidents from former President Bill Clinton to President Donald Trump earlier this year—has never taken the preemption position.
While the Trump and Biden Administrations are taking steps towards reclassifying marijuana, it is still listed by the federal government as Schedule I drugs, meaning that the drug has no medically accepted use, and there is a potential abuse.
Attorneys for the ballot sponsoring parties wrote that, in addition to not prosecuting violations of federal marijuana laws within states which have legalized cannabis, neither has the U.S. Department of Justice. Congress prohibits annually the Justice Department’s spending of funds in order to block states from passing medical cannabis laws.
“Congress’ purpose is the ultimate test in any preemption case. Here, Congress has allowed states to pass their own laws on medical cannabis,” said the ballot sponsor.
Protecting ‘state sovereignty’
Jason Grams, an attorney from Omaha who represents the commissioners said, while marijuana manufacture, distribution and possession are illegal at the federal level, that is not the whole story.
Grams said that in this situation, preemption is implicated, according to the Controlled Substances Act as designed by Congress, when it becomes “physically impossible” for state laws and federal law coexist.
Commissioners say that among the 39 States which legalized medical marijuana, Nebraska was one of them. None has yet been rejected on preemption grounds, according to the standards set by the federal government.
Grams said, “We just hold state sovereignty with greater respect than that.”
Grams represented Nebraskans for Medical Marijuana in the 2020 campaign against a suit brought by Lancaster County Sherriff Terry Wagner. The Nebraska Supreme Court removed the measure from the ballot after ruling against the campaign.
In 2022, 2024, and again in 2026 did the same thing before winning at ballot boxes.
Ballot supporters have also pointed out the 10th Amendment in the U.S. Constitution which says: “The power not delegated by the Constitution to the United States nor prohibited by it by the States are reserved respectively to either the States or the People.”
In its motion for dismissal, the AG’s office did not mention federal preemption other than saying that “Kuehn could be right on the merits” of his substantive arguments.
Pillen and Hilgers raised questions about marijuana in federal law.
Kuehn, according to the ballot sponsors, is “in an odd position,” as a Nebraskan taxpayer who sues “not for the sake of his fellow Nebraskan taxpayers’ rights but rather to protect the rights and interests of the federal Government.”
“Unlike most taxpayer lawsuits, success for Kuehn would not save taxpayers money—to the contrary, Kuehn’s success would decrease tax revenue, thereby increasing the per capita tax burden and harming taxpayers,” the brief states. The federal government is not the party interested.
No tax dollars, yet
Grams said that another obstacle to taking on Kuehn’s case is the pending legislation currently being discussed by the Nebraska Legislature. This could make the statutes Kuehn challenges “moot”. Kuehn said that his arguments against the commissions were “aiming at an ever-moving target.”
General Affairs Committee is yet to vote on the bill that represents Ben Hansen’s (R), Blair State Senator, main proposal. The bill’s advancement could be decided this week.
The commission also has no public dollars set aside to carry out its duties—no state funds, no donations, no fee revenue, no office, no address, no contact information, no equipment, no staff.
The NMRCA does not allow for the performance of any duty. [Nebraska Medical Cannabis Regulation Act]”, the short continues.
Commissioners were unable to do much until last Friday due to a lack of “resources”.
- Executed no contracts.
- No meetings were held.
- No meetings advertised
- No deliberation is carried out.
- No votes held
- Issued no regulations.
- No work has begun on the regulations.
- No office space or meeting room was required.
- No employees were sought.
- No work has been done on licensing criteria.
- No law enforcement resource retention
Three months after the vote, Commissioners will have to draft regulations for licensing. By October 1, licensing is to commence. A pending bill could extend these deadlines and provide appropriations to the Commission.
Medical Cannabis Commission members have called the claim that the use of taxpayer money in the future is sufficient to progress the case “bunkum” (nonsense).
They said that allowing Kuehn to move forward on “taxpayer standing” grounds could involve the “incidental expenses” of state laws and allow for any legal challenge. They said allowing Kuehn to move forward on “taxpayer standing” grounds “would effectively swallow the rule—contrary to the Supreme Court’s instruction to apply the exception narrowly.”
Kuehn, if he is trying to prevent anyone from being able to appropriate funds, “has filed the wrong parties,” the commissioners stated. Instead, Kuehn should “address [his] claim to the Legislature.”
Indefinite Regulations
Grams claims in this case that the commissions were not properly served.
Kuehn’s attorneys, most of whom were from out-of state, sent “legal threats” on January 9 – one day before commissioners joined the case – telling them to not enforce the law.
The letter, however, was sent via email to addresses Kuehn had “guessed” at, which the commissioners do not have access to. It was also mailed to Nebraska Liquor Control Commission, where both commissioners hold dual roles (but are separate), and left in a box with an employee of the AG’s Office.
The brief claims that none of the commissioners saw the threat from the court telling them not to take action until “long” after January 10 and Kuehn did not give the commissioners “even one day to think about his request, if they were given a chance at all.”
The pledged challenge
Along with Pillen, AG’s Office also defends Secretary of state Bob Evnen and CEO Steve Corsi of Nebraska Department of Health and Human Services. State Treasurer Tom Briese and Tax Commissioner Jim Kamm are both Republicans.
The AG’s Office stated that Evnen could not be sued twice on this topic. Kuehn is continuing to appeal the case he lost against Evnen, and his campaign last September.
Kuehn cited Corsi’s argument that DHHS should discipline doctors for recommending cannabis to their patients. While DHHS did not issue guidance to doctors as part of these laws, the AG’s Office claimed that recommending cannabis could lead Nebraska doctors to be disciplined.
Briese & Kamm claim they could be in violation of the money-laundering laws if tax revenue is collected from sales of medical marijuana. But all three groups say courts have consistently upheld collecting such taxes on illicit activity.
The AG’s Office suggested that Mike Hilgers, Nebraska’s Attorney General (R), would be a better candidate to take on the law.
Zachary Pohlman joined Hilgers to represent state officials in the Legislature at the beginning of this month.
Pohlman then and again in the latest brief pledged—or in the view of some lawmakers, threatened—to challenge the constitutionality of the laws if the commission licensed medical cannabis establishments. In the brief, it was stated that litigation would be “only one example” of possible future actions.
In the brief, it is stated: “Expanding the taxpayer’s standing by allowing a private person to sue a public official to invalidate statutes which don’t harm him when the Attorney general has promised to do this himself not only extends the judiciary jurisdiction beyond its rightful scope.” It also violates the authority of Nebraska’s chief law officer.
Nebraska Examiner was the first to publish this story.
Nebraska lawmakers are preparing to vote on medical marijuana bills. The AG’s office is threatening a lawsuit for licensing.
Images courtesy of Rawpixel and Philip Steffan.