Politics
Nebraska Judge Rejects Lawsuit Seeking To Overturn Medical Marijuana Law Approved By Voters
“It is much too late to stop the secretary of state from putting the medical cannabis initiatives on the ballot.”
By Zach Wendling, Nebraska Examiner
A Lancaster County District Court judge has dismissed a lawsuit seeking to void Nebraska’s medical cannabis laws on the grounds that they violate federal laws against marijuana.
Lancaster County District Judge Susan Strong, in a 16-page opinion Thursday, ruled that John Kuehn, a former state senator and longtime marijuana opponent, could not prove injury to sue, the legal term of art known as “standing.”
Strong, citing past case law, said such injury would need to be “concrete,” “distinct and palpable” and “actual or imminent.”
“Plaintiff admits that he has not suffered an injury-in-fact resulting from defendants’ actions, and the court finds that he lacks standing under any of the exceptions to the rule requiring an injury-in-fact,” Strong wrote.
Instead, Kuehn sought to get his foot in the courthouse door arguing that any Nebraskan should be able to challenge ballot measures (even after an election), that he has standing as a taxpayer to prevent the “illegal expenditure” of public funds and that he should have standing because the laws constitute a “matter of great public concern.”
Strong ruled against Kuehn on all three points.
More than 71 percent of Nebraskans approved legalizing medical cannabis, and 67 percent approved a regulatory system.
On the election-related challenge, Strong said Kuehn isn’t challenging the legal sufficiency of a ballot measure. Strong ruled over a separate Kuehn case last fall where she upheld the legality of the measures to legalize and regulate medical cannabis after Kuehn, and later top state officials, accused campaign workers of fraud and malfeasance. She rejected those claims.
“It is much too late to stop the secretary of state from putting the medical cannabis initiatives on the ballot,” Strong wrote.
Nebraska Supreme Court appeal pending
Kuehn had targeted Secretary of State Bob Evnen (R) and the trio of ballot sponsors of the 2024 medical cannabis campaign in the earlier case and again added them to this one.
Despite being a defendant, Evnen and his state attorneys, including Nebraska Attorney General Mike Hilgers (R), all but embraced Kuehn’s arguments and sought to overturn Evnen’s placing of the ballot measures on the 2024 ballot just months before.
That earlier case, Kuehn v. Evnen et al., heads to the Nebraska Supreme Court this fall on appeals from Kuehn and Evnen.
This time around, Kuehn also targeted Gov. Jim Pillen (R), initially seeking to stop the governor from ceremoniously declaring the ballot measures successful. Strong did not let Kuehn do so, and Pillen certified the new laws, effective December 12.
In January, Kuehn added CEO Steve Corsi of the Nebraska Department of Health and Human Services, State Treasurer Tom Briese, Tax Commissioner Jim Kamm and the members of the Nebraska Medical Cannabis Commission that voters overwhelmingly approved creating in November to regulate the medication.
Among Kuehn’s main contentions in the federal preemption case was that Nebraska shouldn’t be able to create a medical cannabis program because of federal law classifying marijuana as a Schedule I drug. A Schedule I drug is one that the federal government says has a high potential for abuse and no accepted medical uses. A bipartisan swath of advocates has called for rescheduling the drug for decades.
Nearly 40 states, including Nebraska, have laws on the books for medical cannabis.
‘A clear message’
Crista Eggers, executive director of Nebraskans for Medical Marijuana, one of the three ballot sponsors targeted in the Kuehn cases, said she appreciated Strong’s “thoughtful decision.” She said the ruling “should send a clear message to the opposition that they have lost.”
Eggers said Strong’s dismissal upholds many years of hard work and hints “that we will finally see the day that we, and all Nebraskans, have fought for.”
Daniel Gutman, who represented the ballot sponsors in both Kuehn cases before Strong, said her order was consistent with other dismissals nationwide on procedural and substantive grounds.
“This is yet another failed attempt to undermine the will of Nebraska voters,” Gutman said in a statement.
The AG’s Office, representing all state defendants except for the Medical Cannabis Commission members, as well as a separate attorney representing the commission, declined to comment on the dismissal.
Kuehn’s attorneys did not respond to a request for comment.
An ‘exception’ vs. a ‘rule’
Strong called Kuehn’s allegations of “taxpayer standing” “remarkably broad,” ranging from allegations that Briese or Kamm would illegally be expending funds by collecting sales taxes on medical cannabis or by issuing guidance or investigating complaints against doctors who recommend cannabis. Medical cannabis would be sales tax exempt under current law. DHHS had not issued guidance or investigated complaints as of earlier this week.
Strong did say that Kuehn’s “strongest case” for taxpayer standing is against the commission itself, though Strong she noted none of the members are compensated for their duties and that the voter-approved laws did not give specific funds to the Medical Cannabis Commission.
The Legislature set aside an additional $30,000 in spending authority for Liquor Control Commission employees who might take on joint duties with medical cannabis regulations. Strong’s ruling noted that the new state budget didn’t earmark any specific funding for the Medical Cannabis Commission.
Strong said that if “employee time” was enough for taxpayer standing, it would no longer be an “exception,” which attorneys for the Medical Cannabis Commission and ballot sponsors had argued.
“It would be the rule anytime a statute requires a government employee to do anything,” Strong wrote. “That result would be inconsistent with the principle that ‘[e]xceptions to the rule of standing must be carefully applied in order to prevent the exceptions from swallowing the rule.’”
On standing for a “matter of great public concern,” Strong said it’s unclear whether the Nebraska Supreme Court has applied the exception since it was created in 1979.
“If the proliferation of gambling and harm to the state’s natural resources are not matters of great public concern, then the court is hard-pressed to say that the legalization and regulation of medical cannabis is,” Strong wrote, citing cases from 2000 and 2015.
No shortage of ‘strong political opinions’
Strong said it is also relevant that other people could challenge the medical cannabis laws in court, one of which she said “obviously” is the federal government to enforce the federal Controlled Substances Act.
Others could sue, too, such as a landowner near a registered cannabis establishment if property valuation, use or enjoyment is impaired or someone fined by the Medical Cannabis Commission, Strong said.
Another party that has voiced intentions to sue if establishment licensing begins by an October 1 deadline, as required under law, is the Nebraska Attorney General’s Office. Hilgers and his staff, including in this case, have repeatedly said they plan to sue if licensing begins, part of why his office supported dismissing Kuehn’s latest case.
Strong said she does not decide in the present lawsuit whether Hilgers and his office would have standing to challenge the medical cannabis laws.
“Nebraska, like other states, has no shortage of citizen-taxpayers with strong political opinions. That is not necessarily a bad thing,” Strong wrote. “But it would be bad if all those citizens could sue whenever a law requires a government employee to do something.”
This story was first published by Nebraska Examiner.
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