The secretary of state has already put medical cannabis initiatives to the ballot. It’s too late.
By Zach Wendling, Nebraska Examiner
Lancaster County District Court Judge dismissed a suit seeking to invalidate Nebraska’s Medical Cannabis Laws on grounds they violate federal marijuana laws.
Lancaster County District Court Judge Susan Strong ruled Thursday that John Kuehn – a longtime opponent of marijuana and former senator – could not establish injury in order to bring a lawsuit, also known as standing.
Strong, citing caselaw, explained that the injury had to be “concrete”, distinct and palpable, and “actually or imminent.”
Strong wrote, “Plaintiff concedes that his injury in fact was not caused by defendants actions and the Court finds that Plaintiff lacks standing for any of the exceptions required to rule on injury in fact.”
Kuehn, instead of trying to force his way into the courtroom door, argued that anyone in Nebraska should be allowed to challenge ballot initiatives (even after an elections), that Kuehn has the right to act as a citizen to prevent “illegal spending” of taxpayer funds and that the laws are a matter of “great public concern”.
Strong rejected Kuehn’s arguments on all three counts.
Nebraskans approved of the legalization of medical cannabis in more than 71%, with 67 % also approving a system for regulation.
Strong stated that Kuehn was not challenging the validity of the ballot measures in the challenge related to elections. Strong decided on a separate Kuehn matter last autumn, where she upheld legality for the measures legalizing and regulating medical cannabis, after Kuehn and top officials of the state accused campaign workers and fraud. She dismissed those claims.
Strong wrote: “It’s too late for the Secretary of State to put the medical marijuana initiatives on the ballot.”
Nebraska Supreme Court appeal pending
Kuehn targeted the Secretary of State Bob Evnen, the three sponsors of the ballot for 2024’s medical cannabis campaign and added them again to this case.
Evnen was a defendant but his state attorneys including Nebraska Attorney-General Mike Hilgers(R) embraced Kuehn’s argument and tried to undo Evnen’s decision months prior to place the ballot measures in 2024.
This case is a good example. Kuehn v. Evnen et al.Kuehn’s and Evnen’s appeals will be heard by the Nebraska Supreme Court in this fall.
Kuehn has also set his sights on Gov. Jim Pillen, (R), tried to initially stop the Governor from formally declaring that the ballot measures were successful. Strong would not allow Kuehn to do this, and Pillen confirmed the new laws as effective December 12.
Kuehn invited in January Steve Corsi, CEO of the Nebraska Department of Health and Human Services as well as Tom Briese of the State Treasury, Jim Kamm, the Tax Commissioner, and members of Nebraska Medical Cannabis Commission, which voters had overwhelmingly approved to create last November. The commission was created by the Nebraska Medical Cannabis Commission.
Kuehn argued in his federal preemption lawsuit that Nebraska should not be allowed to establish a medical marijuana program due to federal law, which classifies marijuana as Schedule I drugs. Schedule I drugs have been classified by the federal government as having a very high risk of abuse, and also no approved medical applications. Since decades, advocates from both sides of the political spectrum have called for rescheduling this drug.
Nebraska and nearly 40 other states have passed laws regulating medical cannabis.
‘A clear message’
Crista E. Eggers, Executive Director of Nebraskans for Medical Marijuana (one of the three ballot sponsoring groups targeted in the Kuehn lawsuits), said that she appreciated Strong’s “thoughtful decisions.” She stated that the decision “should be a clear signal to the opponents, that they lost.”
Eggers claimed that Strong’s dismissal is a vindication of many years’ hard work. He also hinted “that the day will come when we as Nebraskans and we ourselves, can finally enjoy what we have worked for.”
Daniel Gutman represented the voters in both Kuehn’s cases before Strong. He said Strong’s order is consistent with dismissals made across the nation on procedural grounds and substantive grounds.
Gutman, in a press release, said that “this is another attempt at undermining the will of Nebraskan voters.”
Both the AG’s Office (representing all defendants in the state except the Medical Cannabis Commission) and a separate lawyer representing the Medical Cannabis Commission declined to make any comments on this dismissal.
Kuehn’s lawyers did not reply to an inquiry for comments.
An ‘exception’ vs. a ‘rule’
Strong called Kuehn’s assertions of a “taxpayer position” “remarkably wide.” Kuehn alleged that Briese, Kamm or other officials would be illegally expending money by collecting taxes on medical marijuana or issuing guidelines or investigating complaints made against doctors who recommended cannabis. Under current law, medical cannabis is exempt from sales taxes. DHHS has not yet issued guidance on the matter or conducted any investigations as early as this week.
Strong stated that Kuehn was “most likely” to argue that taxpayers have a right against the Medical Cannabis Commission, but she also pointed out that no one is compensated by the Medical Cannabis Commission for his or her duties.
The Legislature allocated an extra $30,000 of spending authority to employees at the Liquor Control Commission who may be assigned duties that overlap with those relating to medical cannabis regulation. Strong noted in his ruling that there was no specific funding allocated for the Medical Cannabis Commission under the state’s new budget.
Strong stated that, if the “employee-time” requirement was met for tax payer standing, then it wouldn’t be considered an exception as attorneys from Medical Cannabis Commission (MCC) and ballot sponsoring organizations had claimed.
Strong wrote: “It’s the standard rule whenever a law requires an employee of government to perform any task.” “That result would be inconsistent with the principle that ‘[e]To prevent exceptions from swallowing up the rules, it is important to apply the standing rule with care.
Strong said that the Nebraska Supreme Court may not have applied its 1979 exception for standing to represent a matter of “great public concern” in the past.
Strong wrote that if the expansion of gambling, and the harm done to natural resources in the state, aren’t matters of concern to the public, the court would be hard-pressed not to consider the legalization of medical marijuana as a major issue. He cited cases dating back to 2000 and 2015.
No shortage of ‘strong political opinions’
Strong added that it was also important to note other parties who could bring a lawsuit against the laws governing medical cannabis. She said one such party is “obviously,” the federal government, which enforces the federal Controlled Substances Act.
Strong added that other parties could also sue. For example, if a property owner near an establishment registered with the Medical Cannabis Commission fines someone for reducing their value, enjoyment or use of their land.
Nebraska Attorney General’s Office has also expressed its intention to file a lawsuit if the establishment licensing process begins on October 1, as per law. Hilgers’ office, and specifically his staff in this case as well, has repeatedly stated that it plans to sue should licensing begin.
Strong stated that she has not decided in this case whether Hilgers’ office and Strong would be able to contest the medical marijuana laws.
Nebraska has a lot of taxpayers who are also citizens with strong opinions. Strong wrote that this isn’t necessarily bad. It would be bad for all of those citizens to sue every time a law required a government worker to do something.
Nebraska Examiner was the first to publish this story.
Nebraska Medical Marijuana Regulators Approve Emergency Rules Banning Flower Access For Patients