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Fri. Oct 4th, 2024
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Lawyers weigh whether to throw out Nebraska medical cannabis lawsuit • Nebraska Examiner

By Matthew. Jr
Lawyers weigh whether to throw out Nebraska medical cannabis lawsuit • Nebraska Examiner

LINCOLN — A Lancaster County District Court judge will soon decide, in a new set of documents filed Tuesday, whether to dismiss a lawsuit against two Nebraska medical-cannabis ballot measures.

Judge Susan Strong set the deadline for Tuesday parties identified in the process to weigh John Kuehn of Heartwell, a veterinarian, farmer, former state senator and former member of the Nebraska State Board of Health, filed the suit. The lawsuit names Secretary of State Bob Evnen and the three sponsors of the Nebraskans for Medical Marijuana campaign.

Sponsors are Lincoln state Sen. Anna Wishart, campaign manager Crista Eggers and former Lincoln state Sen. Adam Morfeld.

Strong said last Friday that he plans to “narrow” issues a decision later this week on Wishart, Eggers and Morfeld’s motion to dismiss the case. It got complicated after Evnen asked the court to take the case anyway and determine, once and for all, the actual number of valid signatures.

The two petitions in the center, scheduled to appear on the Nov. 5 ballotare:

“Nebraska’s Pro-Initiative Public Policy”

Kuehn’s attorneys wrote that the “outrage” over Kuehn’s decision to pursue the case is “misplaced,” claiming thousands of allegedly fraudulent signatures are enough to disqualify the efforts.

“Nebraska’s pro-initiative public policy does not permit initiative petitions to bypass judicial review,” Kuehn’s brief states.

Heartwell’s John Kuehn, left, joins three attorneys to begin formal legal proceedings in a case against two 2024 ballot measures related to medical cannabis. Attorneys, from left, are Steven Guenzel, Andrew La Grone and Anne Marie Mackin. September 20, 2024. (Zach Wendling/Nebraska Examiner)(Zach Wendling/Nebraska Examiner)

Kuehn was a leader in Smart Approaches to Marijuana, or SAM, a national organization trying to prevent “another big tobacco.”

The Wishart-Eggers-Morfeld brief argued that Kuehn is “asking for the equivalent of a recount” and that he implies he is “best equipped to make important electoral decisions” that have already gone through a robust process with various local resources and tools to determine validity. .

“They (Kuehn and his lawyers) also threaten the initiative process in general — a process that the Nebraska Supreme Court reiterated just last week is ‘precious to the people and one that courts are eager to preserve in the greater sustainable measure of spirit. as a letter'”, the brief of September 20 states.

Kuehn’s lawyers rejected that “breathless and inflammatory characterization” and pointed to Evnen, who is asking the court to definitively determine the number of valid signatures in addition to Evnen’s. completed work.

“Public confidence” in elections

Evnen’s brief was written in part by Nebraska Attorney General Mike Hilgers, a former state lawmaker. Hilgers opposed medical cannabis and delta-8, which contains THC, the compound in the cannabis plant most commonly associated with getting a person high.

Hilgers is too investigating alleged cannabis petition fraudwhich revealed at least one case of alleged petition fraud that led to the arrest of a Grand Island man on felony charges.

Secretary of State Bob Evnen Announces Official Completion of Nebraska's Fall 2024 Election
Nebraska Secretary of State Bob Evnen announces the completion and certification of candidates and issues to be submitted to voters in the November 5, 2024 general election. September 13, 2024. (Zach Wendling/Nebraska Examiner)

However, the Evnen-Hilgers brief suggests a broader reason for taking up the process, stating that “Public confidence in the electoral process is the cornerstone of democratic governance.”

Citing a 2012 report from Global Commission on Elections, Democracy and Securitythe Evnen summary states that credible elections are needed to avoid the risk of “slow rotting of the entire political system from within”.

Evnen’s attorneys say he is defending his office, election workers and the validation process, and that Evnen must “vigilantly and diligently guard the integrity of all aspects and phases of the election process.”

Evnen is continuing the request because the Grand Island example “raised suspicions of an unusual and serious irregularity,” the Attorney General’s Office writes.

“Serious irregularities of this kind undermine public confidence in the electoral process,” the Attorney General’s Office wrote on behalf of Evnen. “It is imperative that these irregularities be investigated and any uncertainty about the validity of signatures that may be affected by fraud or misconduct be authoritatively resolved.”

“Presumption of Validity”

Evnen’s brief alleges that at least one notary, who signed the Grand Island man’s petitions when he was allegedly not in the notary’s presence, calls into question even more signatures.

On those petitions, the brief states, the “presumption of validity” of those signatures is lost, but sponsors could also present evidence that those signatures are “reinstated.”

“Of course, removing the presumption of validity is powerful medicine,” Evnen’s brief states. “But here it is justified.”

Nebraska Board of Pardons Secretary of State Bob Evnen, Gov. Jim Pillen and Attorney General Mike Hilgers speak before a Board of Pardons meeting. August 20, 2024. (Aaron Sanderford/Nebraska Examiner)

Kuehn’s attorneys join Evnen in arguing that Grand Island’s allegations “cast doubt” on thousands of other signatures.

Evnen and Hall County Election Commission Tracy Overstreet confirmed that the allegedly fraudulent signatures were excluded before the vote is certified for the November 5 elections.

Lawyers for the sponsors claim that Evnen did not identify a single signature that was “miscounted” during the verification.

“In fact, in the same pleading, he (Evnen) affirmatively denies plaintiff’s allegations that he improperly counted signatures,” the sponsors’ brief states.

Attorneys for the sponsors say the Kuehn lawsuit and Evnen’s allegations would lead to a determination of whether to revalidate more than 228,000 signatures on both petitions.

Kuehn’s allegations included signatures from voters who did not provide their full information (date of birth, address, signature and others) or from voters who signed the petition but the petition circulators did not disclose whether they were paid.

Kuehn and Evnen’s summaries argue that the paid circulator requirement vs. unpaid is a serious one which the courts should not overlook and which it should be up to the sponsors to defend.

“Single subject” charges.

Kuehn also argues that the measure related to the regulation of medical cannabis consists of various “subjects” in violation of the Nebraska Constitution, arguing that creating a new commission is different from decriminalizing cannabis for private entities.

Attorney Daniel Gutman is one of three attorneys representing state Sen. Anna Wishart, Crista Eggers and former state Sen. Adam Morfeld in a lawsuit against a ballot measure the three are sponsoring to legalize and regulate medical cannabis in Nebraska. September 20, 2024. (Zach Wendling/Nebraska Examiner)

Attorneys Wishart, Eggers and Morfeld pointed to 2020, when a successful gambling measure led to the expansion of the Nebraska Racing Commission to become Nebraska Racing and Gaming Commission to oversee extended play. They also argue that the subjects are “naturally and necessarily related,” as required by the Nebraska Supreme Court.

Also in 2020, when the high court ruled on the constitutionality of ballot gambling petitions, it also rejected a single medical cannabis ballot petition on a single issue. As a result, sponsors split the petition into two parts in subsequent elections.

Kuehn’s lawyers say the cannabis effort is different from gambling because there was no “natural regulator” for gambling at the time, while the Nebraska Department of Health and Human Services and the Board of Pharmacy already oversee all drugs and prescriptions.

“Creating a new executive entity solely to regulate a single drug is neither natural nor necessary to the overall purpose of providing for the regulation of medical cannabis,” Kuehn’s brief states.

In Evnen’s first response to the court last week, his lawyers argued that the unique issue should be up to the court’s “final determination.” However, the patent filed on Tuesday said Evnen “strongly opposes” the challenge.

The legal requirements of a legal process

Sponsors of the vote say Evnen’s “cross-claim” is “entirely hypothetical,” with the secretary of state denying Kuehn’s allegations and arguing the court should intervene.

“Instead of defending the work of his office and election officials across the state, Secretary Evnen is asking the Court to fulfill his ministerial duties,” the sponsors said in a statement.

Medical cannabis advocates packed a courtroom Friday for the first day of a hearing that could determine the fate of two 2024 ballot measures on medical cannabis. First, in the center, are the sponsors of that petition. From left, state Sen. Anna Wishart of Lincoln, Crista Eggers of Gretna and former state Sen. Adam Morfeld. September 20, 2024. (Zach Wendling/Nebraska Examiner)

The sponsors argue that the court cannot yet decide the case because there is no “real case or controversy” yet. Citing past cases, the patent states that courts cannot rule on facts that are “future, contingent or uncertain.”

“The cross-claim is replete with conclusory allegations that are insufficient to survive a motion to dismiss—not surprising, since the facts upon which its claim is based do not currently exist (and likely never will),” the sponsors’ attorneys wrote. “… The cross-claim presents an unripe, non-justiciable issue, and the Court lacks jurisdiction.”

Evnen’s brief states that the court can help Nebraskans have the “greatest confidence” in the integrity and fairness of Nebraska’s elections and election processes.

Unless that certainty is resolved, the filing continues, Evnen’s satisfaction and ability to perform the duties of his office “will be hindered.” He and Hilgers argue that the public needs assurances that do not violate the authority of public ballot initiatives or referendums.

“Honoring the constitutional and statutory requirements that protect the integrity of the electoral process facilitates rather than thwarts the exercise of those powers,” says Evnen.

kuehn-response-MTD evnen-response-MTD sponsors-response-MTD sponsors-response-MTD-cross

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By Matthew. Jr

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