Zach Wendling
LINCOLN — A district judge considering a challenge to void Nebraska’s incoming medical cannabis laws denied a request Wednesday to block them from taking effect this week.
Lancaster County District Judge Susan Strong refused to prevent Gov. Jim Pillen from signing the proclamations by the end of the day on Thursday that would legalize and later regulate medical cannabis in Nebraska. Those would be the final steps of the voter-led process.
“I do not feel that there is about to be immediate and irreparable harm to the plaintiff’s interests,” Strong said at a Wednesday hearing. “I also find that the public interest does not favor issuance of the injunction.”
After Strong’s decision, a spokesperson for Pillen confirmed that “the governor will comply with his statutory duty to sign the proclamations by the required deadline.”
The broader lawsuit arguing the measures violate federal law and unconstitutionally delegate lawmaking authority away from the Legislature continues in Strong’s courtroom. It was filed Tuesday against Pillen, Secretary of State Bob Evnen and the three sponsors of the ballot initiatives that voters widely adopted in November.
This is the second legal challenge against the measures led by John Kuehn, a former state senator, former member of the State Board of Health and a longtime marijuana opponent.
Attorneys for Pillen and the ballot sponsors argued in court that the request would force the governor to violate his constitutional duties.
Initiative Measure 437 passed with 71% of Nebraskans’ support to legalize up to 5 ounces of medical cannabis with a written doctor’s recommendation.
Initiative Measure 438 passed with 67% voter approval to regulate the drug through a newly created Nebraska Medical Cannabis Commission, whose licensing and regulatory authority broadly mirrors and includes the three members of the Nebraska Liquor Control Commission.
Once the measures become law, Nebraska will become the 39th state to authorize some form of medical cannabis. Nearly every state except Nebraska has legalized some form of cannabis or its derivatives, and about two dozen states allow recreational marijuana sales and distribution.
Looming proclamation deadline
Pillen and four other state constitutional officers unanimously certified the Nov. 5 election results during a Dec. 2 meeting.
The Nebraska Constitution and state law give the governor a 10-day deadline after the election is certified to declare which ballot measures voters approved. Once that step is taken, the measures become law.
Pillen’s predecessor, U.S. Sen. Pete Ricketts, R-Neb., signed off on eight ballot measures that passed during his time as governor. Ricketts signed all eight measures within eight days. Pillen’s ninth day was Wednesday.
Attorney Daniel Gutman, speaking for the ballot sponsors of Nebraskans for Medical Marijuana, said the “status quo” is that the measures will become law with Pillen’s signature.
“I know that a handful of people in very powerful positions in the state are having a really hard time grappling with this election result, and frankly, they’re turning to the judiciary to overturn it,” Gutman said. “To say that an injunction preventing the overwhelming will of Nebraska voters is in those voters’ best interests is frankly offensive to the electorate.”
‘A small insular government’
Kuehn attorney Eddie Greim of Kansas City, Missouri, argued that Strong should block Pillen from signing because the new laws would:
- Conflict with federal laws that classify marijuana as a Schedule 1 drug alongside heroin or LSD, the highest classification possible.
- Call for an unconstitutional delegation of lawmaking authority to a new agency.
“It sort of creates a small insular government within a government that’s going to control an important new industry,” Greim said. “Whether all the benefits of this measure claimed by the proponents are ultimately realized is really going to depend on standards created from whole cloth by these commissioners.”
The Legislature can amend the laws and offer clarity, Greim said, though doing so would require a two-thirds majority (33 votes) because the laws were enacted by the people.
Greim, one of four attorneys from his Kansas City firm assisting Kuehn, has a history of taking high-profile cases. He defended associates of President-elect Donald Trump after the 2020 election and former Missouri Gov. Eric Greitens against a 2018 impeachment threat.
Kuehn’s team also includes out-of-state attorney Anne Mackin of Austin, Texas, a former Texas assistant attorney general and former legal counsel for the Texas Senate and Federal Elections Commission. She is one of a few attorneys representing Kuehn in a previous lawsuit against the marijuana measures.
Strong also presided over that lawsuit filed Sept. 12, which was rooted in petition signature challenges. Strong dismissed the case on Nov. 26, which Kuehn is appealing.
A new constitutional question?
Solicitor General Eric Hamilton, defending Pillen in the latest lawsuit, said Kuehn’s request, if accepted, “opens the floodgate to some pretty expansive constitutional litigation in Nebraska at a very early stage.”
The speaker of the Legislature and secretary of state have similar duties to oversee successful legislation after a veto override or when the governor refuses to sign a bill, Hamilton argued. And the governor generally signs new bills into law.
Hamilton questioned whether lawsuits could be allowed at those stages to block ministerial duties as “brand new vehicles” for lawsuits under Kuehn’s arguments.
“We’ve had 150-plus years of constitutional litigation in Nebraska,” Hamilton said. “Mr. Kuehn hasn’t cited a single case in which the substantive validity of the statute has been tested in this manner.”
Greim said stopping the laws from taking effect would be in the public’s interest, which Gutman described as “absolutely bewildering” because of broad demand from Nebraskans statewide.
Greim has argued that ministerial duties should not be completed “blindly” if doing so would be against the law, and he said there had been “no chance” to litigate the claims until now.
Kuenn’s first lawsuit initially included the federal preemption and delegation arguments, though both were dropped early on in that case.
“The public interest has to be key to the Constitution, not the results of any passing vote,” Greim said. “Otherwise, the public interest will never weigh in favor of enjoining an unconstitutional initiative petition.”
Strong said she was not going to comment on the merits of the federal preemption or delegation arguments as the case continues in her courtroom.