Turning a blind-eye to a ballot measure that helps individuals who are in need of help within the State Nebraska? It’s a way to undermine the will of voters.
By Zach Wendling, Nebraska Examiner
Why? This is the most frequent question Nebraskans ask state legislators when they are considering new legislation regulating medical marijuana laws.
Some supporters of medical marijuana asked, at a series public forums held this month in La Vista and Omaha, and Lincoln why the state Senate was even considering Legislative Bill 67, a year after Nebraskans voted to legalize and regulate medical cannabis.
Two ballot initiatives were approved by a large majority of voters in November. A medical marijuana measure that was 71 percent approved. A regulatory companion measure was approved by 68 percent.
Why lawmakers might be considering changing these laws is due to the fact that they have set aside state funding for the new commission approved by voters, and are putting in place additional guardrails against bureaucratic and Executive Branch opposition to medical cannabis. There’s also the issue of limiting the amount a ballot can achieve in one vote as well as legal challenges.
Ben Hansen said repeatedly that the Nebraska medical cannabis system could be like the wild west if LB677 is not passed by the Legislature, largely due to a lack of funding.
Hansen said to reporters that “we will have nothing” in Nebraska. You want to deny the will of voters and turn a blind-eye to a ballot measure that helps individuals who are in need of help within the State of Nebraska? It’s a way to undermine the will of voters.”
Nebraska Attorney-General Mike Hilgers’ (R) opposition to medical cannabis, and his support of efforts to block the bill in its current form has led him to argue that the law as it is would better serve the “will” of the public. Hansen dismisses this as “false optimism.”
Hansen’s LB677 is supported by the sponsors of medical marijuana ballot measures in Nebraska.
Financement for new regulatory agency
One of the main concerns of the newly created Nebraska Medical Cannabis Commission – which is the only regulatory body for medical marijuana – is to get the regulatory process going so doctors can recommend it and patients can buy it legally in the state.
Nebraska’s Legislature has the power to distribute state funds. While Nebraska voters approved a measure establishing a deadline of July 1, for new regulations, and October 1, for licensing medical dispensaries. The new commissioners will not have any funding until the end of the fiscal year on June 30, which is the deadline set by the voters.
Nebraska Liquor Control Commission staff would receive an annual additional $30,000. This is part of the state’s proposed budget. Voters approved the Medical Cannabis Commission and assigned these additional duties to three Liquor Control Commission commissioners.
The state budget does not create a new line item or separate funding for the Medical Cannabis Commission.
LB677 offers a route to providing more funding for the Commission, although the amount will depend on the budget deficit projected. It would allow for the sharing of staff and other resources.
Hilgers has said that the Medical Cannabis Commission must draft regulations regardless, despite the fact that the commissioners claimed in court late last month they had “no capability to carry out any duty” described by the new law without funding. For example, creating public meeting notices and paying staff.
No meetings as of March. No deliberations. No votes. No employees. No rules.
Hilgers is a former member of the Legislature. He said the Medical Cannabis Commission would be able to spend “incidental funding” on cannabis regulation and ask for reimbursement the following year. Some senators, however, questioned whether this was possible without a line item or an overarching organization to carry out the task.
Hilgers’s office has threatened to sue commissioners who license dispensaries for medical marijuana if the Legislature does not approve of such reimbursement.
Continued legal challenges
LB677 faces opposition by state senators, who cite Hilgers’s pledged and ongoing legal challenges to the underlying laws on cannabis as a cause for hesitation.
The passage of LB677, however, could potentially weaken or nullify a pending Nebraska Supreme Court appeal, which is being led by Hilgers, a former Republican State Senator who has been opposed to marijuana for many years.
Hilgers said last week that if LB677 passes, it “makes our job a whole lot harder to what we believe should be a fairly fought” before the Nebraska Supreme Court.
The office of the Attorney General has accused widespread fraud during the campaign for a ballot measure. Organizers have denied this, and in November, a Lancaster County District Court Judge rejected it after voting.
The appeal from Hilgers’s office argues that because the district court judge found at least some signatures from four notaries that should not have been counted—not enough to disqualify the petitions—as grounds for the thousands of signatures collected by those notaries to lose a “presumption of validity.” In this case, campaign officials would have to try and rehabilitate signatures in order to meet the necessary threshold to appear on the ballot.
Hilgers last week confirmed that no criminal charges have been brought against the four target notaries.
Hilgers’s Office has planned to argue, should any medical cannabis dispensers be licensed, that the federal laws preempt the laws, as the government still classifies marijuana as a drug dangerous with no medicinal value. There have been efforts under both the Biden Administration and the Trump Administration to reclassify this drug. Dutzende of states also have medical marijuana or recreational cannabis programs.
Hilgers stated last week that “I believe two plus two equals four even though everyone else thinks two plus two equals five.”
LB677 will also grant immunity to medical practitioners who prescribe cannabis for patients. Hilgers explained that, under the current law, all health licenses are subject to revocation. However, this would not be true if LB 677 were passed.
His office did not answer directly a question from a journalist about whether it would look into the licenses for all doctors that recommend medical cannabis or on a per-case basis.
Nebraska Medical Association expressed support in a comment letter written for LB677 this past year. The measure provides additional protections to doctors.
There are new guardrails and restrictions
In order to pass LB 677 through the General Affairs Committee, it was necessary to add a list with qualifying conditions that excludes the post-traumatic disorder and prohibited smoking of medical marijuana.
According to the original ballot, patients or caregivers only had to obtain a sign-off by a healthcare provider before they could use medical marijuana in any form. This included smoking.
Some senators, including Hilgers, argue that smoking isn’t a valid form of medical use. However, Nebraskans stood in line a week ago, claiming they had voted for the November election believing all Nebraskans, regardless of their needs, could access cannabis. Some people said they would have not voted in favor of the ballot measures if that were true.
LB 677 also changes the limit of five ounces to say that only two ounces can be used for dried flowers or buds, and that they cannot be made into edibles, tinctures or other products. This bill also includes sales taxes on medical cannabis, and tax revenues from direct taxes for property tax relief.
Hansen said to supporters that PTSD is an example of a factor left out in the “negotiation” process for the bill’s passage out of the committee. The bill, Hansen explained, remains a target “that moves.”
John Cavanaugh, D-Omaha, State Senator and Vice Chair of the General Affairs Committee has filed amendements to include PTSD, or leave it up to the patient’s physician.
Cavanaugh stated that “medical cannabis is legal.” We need LB677 to make medical cannabis accessible and secure.
Nebraskans are concerned that LB 677, which leaves all regulation to the Medical Cannabis Commission (as it is currently written), could result in more restrictions. The governor appointed two commissioners at large who have been opposed to medical marijuana legislation. One of the commissioners opposed LB677 during its hearing in March.
Restraints on constitutional rights
Why wasn’t every guardrail considered, or even presented to the voters? Partly, this is because Nebraska Constitutional requirements for “single-subject” ballot measures limit what can be proposed to voters.
In lieu of constitutional amendments the ballot measures created and sought new laws in the state. This gave the Legislature the power to amend provisions by a majority of at least two thirds or 33 votes. This was the third election in six years, after many legislative bills had stalled.
Some Nebraskans are also drawing connections between LB677 and pending efforts in Congress to water down the voter-approved wage hikes and sick leave provisions.
In contrast to those measures, supporters of medical cannabis have joined forces with Hansen.
Legislative strategy
In order to pass the legislation, it is necessary that at least 30 votes are obtained, and this would mean all 15 Democrats plus one progressive nonpartisan, 17 Republicans as well.
It would result in a stricter outcome than if it were decided at the polls, but some supporters believe that this is the most effective way to implement the law.
Hansen’s campaign and Hansen have both said that LB677 offers an “opportunity to study the medical cannabis program in other states” and design the best possible one for Nebraska.
Hansen, who is Republican but has a Libertarian leaning, told his supporters that they should share their stories with him and with other Republicans to garner 33 votes. He told his Republican colleagues that if they don’t pass LB 677, and regulate medical marijuana, the voters may end up legalizing cannabis for recreational use.
Jared Storm of David City (R), a state senator who has been a vocal opponent to Hansen’s LB 677, and already sees it as recreational law, says he will and other opponents be prepared to oppose the bill for eight hours, if that is what it’s scheduled to last, during its first-round discussion, which he described as “very tumultuous and divisive.”
The deadline for adjourning the June 9th session of Congress is fast approaching.
Hansen stated that incremental progress shows “the world isn’t over” and lawmakers will be able to return in order to expand LB 677.
Hansen stated that “we’re not eating 100 percent of an apple.” We get about 75 to 80 percent of the apple. Make sure you give it to those who are in need.
Nebraska Examiner was the first to publish this story.
A study shows that legalizing marijuana reduces the cost of workers’ compensation claims and lowers prescription drug use by patients.
Side Pocket Images. Photo by Chris Wallis.