LINCOLN — A Lancaster County District Court judge is expected to decide soon whether to dismiss a lawsuit challenging two Nebraska medical marijuana ballot measures, based on a set of new briefs filed Tuesday.
Judge Susan Strong set a deadline of Tuesday for the parties identified in the lawsuit to comment. The lawsuit was filed by veterinarian, rancher, former state senator and former Nebraska Health Commissioner John Kuhn of Hartwell. The suit also names Secretary of State Bob Evenen and three sponsors of the Nebraska Medical Marijuana Campaign.
The sponsors are Lincoln State Sen. Anna Wishart, campaign manager Krista Eggers and former Lincoln State Sen. Adam Morfeld.
Judge Strong said last Friday that he would “just barely” rule on Wishart, Eggers and Morfeld's motion to dismiss the lawsuit this weekend. Things got more complicated when Evenen asked the court to take up the case anyway and finally determine the true number of valid signatures.
The two central petitions are expected to appear on the Nov. 5 ballot.
“Public Policies to Promote Initiative in Nebraska”
Kuhn's lawyers argued that “outrage” over Kuhn's decision to continue the lawsuit was “misguided” and that the thousands of fraudulent signatures were enough to invalidate the case.
“Nebraska's pro-initiative policy does not permit initiative petitions to circumvent judicial review,” Kuhn's brief read.
John Kuhn, of Hartwell, left, joins three attorneys at the start of the formal court proceedings in the lawsuit against two medical marijuana ballot measures in 2024. Attorneys, from left, are Steven Guenzel, Andrew La Grone and Anne Marie Mackin, on Sept. 20, 2024. (Zach Wendling/Nebraska Examiner) (Zach Wendling/Nebraska Examiner)
Kuhn leads a national organization called Smart Approaches to Marijuana (SAM), which aims to prevent the emergence of a “new big tobacco company.”
Wishart Eggers Molfeld's brief argued that Kuhn is “requesting what amounts to a recount” and has already gone through a rigorous process to determine validity using a variety of local resources and tools, suggesting that he is “best equipped to make critical election decisions.”
“They (Kuhn and his lawyers) also threaten the initiative process more generally, which, as the Nebraska Supreme Court reiterated last week, 'is a process that the public treasures and which Courts are passionate about protecting to the fullest extent possible, not only in letter but also in spirit,'” the Sept. 20 filing said.
Kuhn's lawyers dispute this “suffering and sensationalist portrayal” and point to Evenen, who is asking the court to determine the number of valid signatures in addition to the work Evenen has completed.
“Public confidence” in elections
Evenen's brief was written in part by former Nebraska lawmaker and current Attorney General Mike Hilgers, who is an opponent of medical marijuana and Delta 8, which contains THC, the compound in the marijuana plant best known for getting people high.
Hilgers has also been investigating alleged marijuana petition fraud, uncovering at least one case of alleged petition fraud that led to the arrest of a Grand Island man on felony charges.
Nebraska Secretary of State Bob Evenen announces the confirmation and certification of the candidates and issues that will be presented to voters in the Nov. 5, 2024 general election, Sept. 13, 2024. (Zach Wendling/Nebraska Examiner)
But Evenen Hilgers' legal brief suggests a broader reason for filing the lawsuit, stating that “public confidence in the electoral process is the foundation of democratic governance.”
The Evenen report cited a 2012 report by the Global Commission on Elections, Democracy and Security, which said credible elections were needed to avoid the risk of “the slow erosion of the entire political system from within.”
Evenen's lawyers say he is defending his office, his election staff and the certification process, saying he “must carefully and diligently safeguard the integrity of every aspect and stage of our election process.”
Evenen is pursuing the case because the Grand Island case “raises unusual and significant allegations of misconduct,” the attorney general's office wrote.
“Such serious irregularities undermine public confidence in the electoral process,” the attorney general's office said in a written statement on Evenen's behalf. “Such irregularities must be investigated and any uncertainties regarding the validity of signatures that may have been tainted by fraud or irregularities must be authoritatively resolved.”
“Estimate of Effectiveness”
Evenen's brief argues that at least one notary signed the Grand Island man's petition even though he was not there, and he also questions the signature.
According to the brief, these petitions lose the “presumption of validity” of a signature, but a signer can present evidence to “reinstate” his or her signature.
“To be sure, stripping the presumption of validity is a powerful tool,” the Evenen brief states. “But it is justified here.”
Nebraska Board of Pardons Secretary of State Bob Evenen, Gov. Jim Pilen and Attorney General Mike Hilgers talk before a meeting of the Board of Pardons on Aug. 20, 2024. (Aaron Sanderford/Nebraska Examiner)
Kuhn's lawyers echoed Evenen's argument, arguing that Grand Island's motion calls thousands more signatures into question as “suspicious.”
Evenen and Hall County Election Commissioner Tracy Overstreet confirmed that the allegedly fraudulent signatures were removed before ballots for the Nov. 5 election were certified.
The sponsors' lawyers argue that Evenen did not identify a single signature that was “miscounted” during the verification.
“Indeed, in that same answer, he (Evenen) affirmatively denies Plaintiffs' allegation that he miscounted the signatures,” the sponsor's brief states.
Lawyers for the petitioners say Kuhn's lawsuit and Evenen's motion will determine whether the more than 228,000 signatures on both petitions will be reverified.
Kuhn's complaint included signatures of voters who did not provide complete information (such as date of birth, address or signature) and signatures of voters who signed petitions but did not disclose whether the petition circulators received payment.
In their brief, Kuhn and Evenen argue that the requirement of paying distributors versus non-paying distributors is a critical requirement that courts should not overlook and that sponsors should adhere to.
The “single subject” allegation
Kuhn also argues that the measure regulating medical marijuana is made up of a variety of “subjects” and violates the Nebraska Constitution, and that creating a new commission is not the same as decriminalizing marijuana for private entities.
Attorney Daniel Gutman is one of three attorneys representing state Sens. Anna Wishart, Krista Eggers and former state Sen. Adam Morfeld in a lawsuit challenging a ballot measure the trio are sponsoring to legalize and regulate medical marijuana in Nebraska, Sept. 20, 2024. (Zach Wendling/Nebraska Examiner)
Attorneys for Wishart, Eggers and Morfeld point to 2020, when a gambling ballot measure passed and the Nebraska Horse Racing Commission expanded to become the Nebraska Horse Racing Gaming Commission, which oversees expanded gambling, and argue that the topics are “naturally and necessarily related,” as required by the Nebraska Supreme Court.
Additionally, when the Supreme Court ruled on the constitutionality of the gambling petition to place it on the ballot in 2020, it also removed the medical marijuana petition from the ballot for single-subject matter, which resulted in the petitioners splitting the petition into two for subsequent ballot campaigns.
Kuhn's lawyers say the marijuana initiative is different from gambling because, while gambling had no “natural regulator” at the time, the Nebraska Department of Health and Human Services and the Board of Pharmacy already oversee all medicines and prescriptions.
“Creating a new enforcement agency purely for the purpose of regulating a single drug would be unnatural and unnecessary to the general purpose of providing for the regulation of medical marijuana,” Kuhn's brief states.
In Evenen's initial response filed with the court last week, his lawyers argued that the single-subject matter should be left to the court's “final decision”. But a brief filed on Tuesday said Evenen would “firmly oppose” the challenge.
Legal requirements for litigation
The ballot proponents argue that Evenen's “counterclaim” is “purely hypothetical” and that the Secretary of State should deny Kuhn's claims on the one hand, while the courts should rule on them on the other.
“Rather than defending the actions of his office or election officials across the state, Chief Evenen is asking the court to carry out his ministerial duties,” the proponents' statement read.
Medical marijuana advocates packed the courtroom on Friday for the first day of a court hearing that could decide the fate of two medical marijuana ballot measures in 2024. Pictured in the front row, center, are the petition's sponsors, from left, state Sen. Anna Wishart of Lincoln, Krista Eggers of Gretna and former state Sen. Adam Morfeld, on Sept. 20, 2024. (Zach Wendling/Nebraska Examiner)
The plaintiffs argue that the court cannot yet rule on the case because there is no “actual litigation or controversy” yet. Citing past cases, the brief states that the court cannot rule on facts that are “future, contingent, or uncertain.”
“The cross-action is replete with conclusory allegations insufficient to survive a motion to dismiss, which is unsurprising given that the facts on which his claims are based do not currently exist (and likely never will exist),” plaintiffs' attorneys wrote. “…The cross-action raises frivolous and unjudicative issues over which the Court lacks jurisdiction.”
Evenen's brief said the court can help Nebraskans have the “utmost confidence” in the integrity and fairness of Nebraska's elections and election processes.
Unless that uncertainty is resolved, the brief continues, Evenen's ability to perform his job and his job satisfaction will be “impaired.” Evenen and Hilgers argue that people need assurances that their right to initiate a referendum and the authority of the referendum will not be infringed.
“Respecting constitutional and legal requirements to protect the integrity of the electoral process facilitates, rather than hinders, the exercise of those powers,” Evenen said.
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