One commissioner stated that his “gut feel, knowing how short the window is”, is that “most probably” emergency regulations will be considered by the board.
By Zach Wendling, Nebraska Examiner
Nebraska Medical Cannabis Commission had its official first meeting in advance of a July 1st deadline for licensing criteria, and an October 1, 2018 deadline for granting licenses.
A public hearing requirement will likely require emergency regulation to meet the deadline of July that was approved by voters last November.
The commission is unsure of the next steps, as it has very little money to accomplish the job. Bruce Bailey, a Lincoln commissioner who chairs the Nebraska Liquor Control Commission separately, stated that the commission’s goal was to present a plan to the public before July 1, and to solicit feedback.
Bailey, speaking to reporters following the meeting, said: “That is where we stand at this moment.” “Until then, there’s nothing we can say.”
Bailey’s “gut instinct, knowing how short the window is,” was that “most probably” emergency regulations would be considered by the board.
The next regulatory step
Ben Swanson, the Assistant Nebraska Attorney-General, explained Monday the normal rulemaking procedure to commissioners. Swanson said he’d address the emergency procedures at the commission meeting on Friday, June 26, at 10:00 am. Commission is still considering a venue. The group has not yet decided whether it will hold any additional meetings prior to the deadline of July 1.
In normal rulesmaking, an agency will draft guidelines and set up a hearing to receive public comments. At least 30 days prior to the public hearing, it must be announced.
The Attorney General’s Office will review the constitutionality of the guidelines if the commissioners do not make any significant changes to the rules and regulations proposed by the Secretary of State’s Office. Governors have final approval on rules and regulations. They are then filed at the Secretary’s Office.
The commission must convene a second hearing within 30 days if it makes substantial changes.
The focus of much of the meeting on the first day was administrative issues, such as Open Meetings Acts for both virtual and physical meetings. Also included were the Nebraska Department of Administrative Services’ support for human resources and budget control.
‘We have to take the wins’
Bailey and Crista Egners, Executive Director of Nebraskans for Med Marijuana (the group which led to 2024’s victories on the ballot) described Monday’s gathering as “a necessary step.”
Eggers said to reporters, “We must take our wins as they come.” Today, just having the meeting was a victory.
Eggers, however, cautioned there were still major questions regarding how the Commission will be funded to do its work, how it will set a timeline for the future of regulations, and whether the commissioners would respect the intentions that the public had when they passed these new laws.
Eggers stated, “We are committed to staying in Nebraska and advocating, fighting, and educating, until we see Nebraskan patients with medical cannabis have access to it and that it is safe and accessible for them.” The day for that is still not here.
Uncertain budget authority
The state legislature approved in May a budget that will cover the two years. It includes an increase of $30,000 in the bottom line at the Nebraska Liquor Control Commission to pay for additional staff needed for shared duties between the Nebraska Cannabis Commission and the Nebraska Liquor Control Commission.
The voters placed the three members from the Nebraska Liquor Control Commission in the Medical Cannabis Commission. In recent weeks, the governor decided not to re-appoint Harry Hoch Jr. for the 2nd Congressional District, which left only Bailey and Kim Lowe, formerly of Kearney. This was first reported by The Nebraska Examiner.
Unlike when they created the Asian American Affairs Commission 2024, legislators did not create a new line in the budget for the Medical Cannabis Commission. A bill that clarified the Liquor Commission’s framework for collecting revenue from medical cannabis and spending related to it was also rejected by lawmakers.
It is a system of confusion that the commissioners have been grappling with since Monday.
Jacob Leaver said that the Liquor Control Commission’s cash fund was to be spent for “bare minimal” purposes.
He proposed that cannabis commissioners adopt a “subprogram”, which could be accomplished administratively, but does not equate to additional spending. The commissioners, he said, “theoretically” have no appropriations.
“Essentially, you have to ‘borrow’ [an] Leaver explained that money from the medical marijuana side of the program could be transferred to the liquor side.
Liquor Control Commission maintains a cash fund with an annual limit of $100,000. This was increased slightly this spring. This fund is funded by various alcohol-related fees like registration and server training. It also includes revenue generated from the sale of documents such as governing rules. Although the fund is seldom used, tapping into it requires a different juggling act.
The state law permits these funds to be spent on “any administrative expenses” related to specific liquor laws. The medical cannabis laws were in another section of law and budget bills didn’t expressly allow additional expenditures from this fund.
‘We’ll do our best’
Bailey asked if those funds would be refunded if the Liquor Control Commission approved diverting money to the Medical Cannabis Commission. Leaver replied “yes and No” as the Medical Cannabis Commission does not collect general state taxes such as income, sales etc. But could, for example, direct the application fees back to cash fund.
Budget officials from the state have stated that liquor commissioners can ask for extra funds or to backfill expenditures in 2026.
Bailey, who is a reporter for the BBC, told them that the commission was looking to get some funding soon despite the tight budget.
Bailey replied, “We will do the best we can.”
Bailey and Lowe, along with Dr. Monica Oldenburg (Lincoln), were sworn-in to their new positions on Monday. Oldenburg, a physician and anesthesiologist was elected unanimously as chair. The group also approved that up to two of its members could meet with experts or consultants outside and report back on their findings.
Gretna Commissioner Lorelle mueting missed the initial meeting. Oldenburg said Mueting had to miss the first meeting because she was on a previous commitment. She also stated that commissioners try to start working as quickly as possible.
Threats to legal rights
It was not the AG’s Office that threatened the Commission with litigation if it failed to issue licenses by October 1, as in previous years. The office of Attorney General Mike Hilgers has repeatedly warned that this would happen, both in court as well as before the Legislature.
In Lancaster County District Court, John Kuehn, a former state senator from Heartwell and ardent marijuana critic, continues to fight the legalization of medical cannabis. Kuehn’s legal filings claim that these laws violate federal marijuana laws and are an illegal delegation of authority.
Hilgers, and his staff have claimed that it is up to the AG to contest laws that encroach on constitutional federal powers. They have also asked for the dismissal of Kuehn’s lawsuit.
Susan Strong of Lancaster County is currently deciding whether the case should be dismissed. Kuehn has filed a new filing on June 5 that seeks the addition of Oldenburg and Mueting while dropping Hoch.
Hoch did not get a second term on the Commission as Governor. Hoch says Jim Pillen is seeking someone with “more cannabis experience”
Kuehn’s most recent court document stated that the controversy was constantly evolving as actors in government actively sought new methods to employ taxpayer funds to implement the policies at issue.
‘Voters…are watching’
Andrew La Grone (former State Senator) was one of Kuehn’s lawyers who attended Monday’s first Cannabis Commission meeting.
Kuehn also sued Pillen, Bob Evnen (Secretary of State), other officials of state and three of the sponsors of 2024, including Eggers.
Eggers expressed her hope that the commission will keep in mind the lives of those at the forefront of the battle, such as her son with a severe type of drug-resistant Epilepsy. She said that there is still time to collaborate for safe access.
Eggers, speaking of the commission: “I hope that they will approach it with the understanding that their decisions and how they make them impact the real people. And those people as well as the patients and voters in the state watch,” Eggers stated. I believe that they are very concerned about the outcome of this process.
Nebraska Examiner published this article first.
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Mike Latimer provided the photo.