A new lawsuit seeks to invalidate Nebraska’s medical cannabis ballot measures

John Kuehn of Heartwell, left, and Steven Guenzel, one of Kuehn’s attorneys in an election-related case against medical cannabis. September 20, 2024. (Zach Wendling/Nebraska Examiner)

LINCOLN – A top opponent of medical cannabis in Nebraska filed a new lawsuit Tuesday seeking to overturn two successful 2024 ballot measures to legalize and regulate the drug.

Gov. Jim Pillen has until Thursday under Nebraska’s constitution and state law to declare which measures were successful.

John Kuehn of Heartwell, a former state senator and former member of the State Board of Health, filed his second lawsuit this fall against the Nebraskans for Medical Marijuana campaign, as well as Nebraska Secretary of State Bob Evnen. The new lawsuit was filed in Lancaster County District Court, where Kuehn lost on Nov. 26 and appealed a related case.

The latest lawsuit, this time involving Pillen, argues that state-level marijuana laws are “unconstitutional, unlawful and impossible” and that the campaign’s efforts to create exclusive regulation of the drug and delegate it to a new executive agency are prohibited .

“Two activist-drafted initiative measures were voted on that had, up to that point, circumvented any judicial review of their compliance with the U.S. Constitution or the Nebraska Constitution,” the lawsuit said. “The time for that reckoning is now, before any more taxpayer dollars are spent on futile efforts.”

State law gives Pillen a ministerial duty to certify which ballot measures were successful in the Nov. 5 general election, including the marijuana measures: Initiative Measures 437 and 438. Kuehn’s lawsuit seeks to block Pillen from carrying out that duty.

Thirty-eight states already allow some form of medical cannabis, with about two dozen also allowing the sale and distribution of recreational marijuana.

If successful, Kuehn’s lawsuit could have ripple effects, including serving as a vehicle to challenge marijuana laws in other states. The federal government is in the process of reclassifying marijuana as a less dangerous drug.

The medical cannabis campaign had no immediate Tuesday evening.

Measures coming into effect

Kuehn previously argued that the measures would violate federal law if successful when he filed his first lawsuit on September 12. The core of that case alleged that the measures should not have been put to a vote by Evnen in the first place. He argued that neither had secured enough valid signatures for the petition. His previous lawsuit included the broader arguments of the new lawsuit and later withdrew them.

Evnen, represented by the Public Prosecution Service as a defendant in Kuehn’s case, later joined Kuehn’s challenge to declare the measures invalid. Evnen and the AG’s office alleged widespread petition fraud and notarial crimes. Evnen himself certified the initiatives for the vote.

Lancaster County District Judge Susan Strong denied Kuehn and Evnen’s arguments, and Kuehn has appealed the case to the Nebraska Court of Appeals.

On December 2, the State Canvassing Board – which consists of Pillen, Evnen, Attorney General Mike Hilgers, State Treasurer Tom Briese and State Auditor Mike Foley – unanimously approved the election results for initiative measures 437 and 438 in the November 5 election.

These measures were passed with 71% and 67% approval from voters respectively.

Strong was also assigned Kuehn’s new case, which heads to her courtroom Wednesday afternoon. She will consider an initial request to prevent Pillen from formally signing the measures into law.

The governor’s office did not respond to multiple requests for comment on whether and when Pillen will sign these proclamations. The office had no immediate comment on the lawsuit.

Staff members of Evnen and Hilgers, whose office defends state officials, also did not respond to requests for comment Tuesday evening.

‘Contrary’ to federal law

Kuehn’s attorneys urged Pillen in a letter Friday not to sign the proclamations. He was given until Tuesday morning to respond to the letter. They argued that Pillen “has no such obligation” to declare the measures successful because federal law classifies marijuana as a dangerous drug.

Kuehn attorney Edward Greim of Kansas City, Missouri, whose past clients include employees of Newly elected President Donald Trump after the 2020 election and former Missouri Governor Eric Greiten, against a threat of impeachment in 2018, wrote that Pillen has a greater duty: to the US and Nebraska constitutions.

“This plan places Nebraska squarely at odds with several federal statutes designed to narrowly define the distribution of marijuana and the profiteering or laundering of funds derived from the production and sale of marijuana,” Greim wrote.

Greim’s letter references a 2019 Nebraska attorney general opinion written by then-Attorney General Doug Peterson and then-Deputy Attorney General Dave Lopez, who is now Pillen’s chief of staff.

Greim wrote that Pillen “has not only the power, but the obligation not to issue a proclamation giving legal effect to an initiative that is contrary to the Constitution of Nebraska and the United States and therefore not a law at all.

“We are confident that your office will exercise its duty not to spend taxpayer dollars by drafting and issuing a proclamation declaring the Marijuana Measures valid Nebraska laws,” Greim continued, adding that legal action could follow.

The AG’s 2019 opinion, which is advisory and does not carry the weight of law or legal opinion, said all state laws regarding cannabis would be unconstitutional. This led in part to the rejection of an earlier bill from Senator Anna Wishart of Lincoln, one of three sponsors of the ballot measures Kuehn is suing.

Former state Sen. Andrew La Grone of Dunbar requested that advice in 2019. He’s one of Kuehn’s lawyers.

Pillen’s staff did not respond, the lawsuit alleges, and Kuehn’s lawsuit was filed Tuesday just before 3 p.m.

Kuehn’s request

Measure 437 would legalize up to 5 ounces of medical cannabis with a written recommendation from a doctor, while Measure 438 would create the Nebraska Medical Cannabis Commission to regulate the drug and license it to medical retailers by October 1, 2025.

Kuehn gives three reasons to prevent Pillen from issuing proclamations in favor of the initiatives:

• The governor cannot spend taxpayer money on illegal activities.

• The issue is of ‘major public interest’.

• The measures are legally insufficient due to mandatory federal laws.

“The Governor does not have the authority to issue a proclamation inconsistent with the Nebraska Constitution,” the lawsuit states.

kuehn-v-piles-et-al

SUBSCRIBE: GET THE MORNING HEADLINES IN YOUR INBOX