Nebraska Supreme Court rejects legal challenge to medical marijuana

Medical marijuana legalization was signed into law later that year. 

But the challenge moved forward. 

In a lengthy, long-awaited ruling, the state's high court rejected the Nebraska Attorney General's argument that the measure's sponsors, Nebraskans for Medical Marijuana, should have to go back and prove at a court hearing that the signatures were valid.  

In a concurring opinion, Justice William Cassel said if sufficient proof establishes widespread and pervasive notarial failure or, worse yet, participation in a scheme to defraud, then a court should require proof of the affected signatures’ validity.

If the sponsor then fails to provide such proof, the signatures should be disqualified, Cassel said.

"Here, however, the majority correctly gives weight to the district court’s findings that the notarial failure did not reach that level. With that understanding, I join the court’s opinion," he wrote.

Crista Eggers, executive director of Nebraskans for Medical Marijuana, hailed the decision as a "major legal and democratic victory for patients, families, and Nebraska voters."

"For years, Nebraskans have spoken with absolute clarity on this issue," Eggers said. "They signed petitions in record numbers. They showed up to vote. And they made their will unmistakably clear. Today’s ruling confirms that the voices of the people cannot be erased by political obstruction or legal maneuvering."

On the other side, Nebraska Attorney General Mike Hilgers, whose office argued the court should reverse the Lincoln judge's ruling and send it back for petition sponsors to prove the signatures were valid, said: "Today is a sad day for election integrity in Nebraska."

"The medical marijuana petition effort used fraud to get on the ballot and abused the notary process and the laws of the state. We disagree with the court’s ruling but will follow the law as it stands," he said in a news release.

Legal challenge focused on petition signatures

Former state Sen. John Kuehn had appealed Lancaster County District Judge Susan Strong's dismissal of his lawsuit, which alleged Nebraskans for Medical Marijuana had collected many of the signatures fraudulently and by other dubious means.

On appeal, Kuehn's attorney said they had presented evidence of notary and circulator malfeasance involving thousands of signatures to put Initiatives 437 and 438 on the general election ballot in 2024.

Kuehn first had sought to block them from appearing on the ballot. When that effort failed, he appealed and filed a new lawsuit, this time asking Lancaster County District Court Judge Susan Strong to block medical marijuana from becoming law.

Strong denied the move, and Gov. Jim Pillen signed medical marijuana into law Dec. 12, 2024.

But the rest of Kuehn's lawsuit continued with the judge ultimately finding that 711 signatures on the legalization petition had lost their presumption of validity and 826 on the regulatory petition, far fewer than the more than 3,300 challengers needed to disqualify either.

In her ruling, Strong found that Kuehn had failed to prove that the petitions had insufficient legal signatures to go before voters.

In a brief to the Supreme Court, Deputy Solicitor General Zachary Pohlman, who represented Secretary of State Bob Evnen, said at its core, this case is not about medical marijuana or even notaries.

"It is about protecting the rule of law and ensuring that when Nebraskans seek to invoke the initiative power — which binds all citizens with new laws — that the correct process is followed," he wrote. 

Pohlman said that the district judge had found that the ballot sponsor and campaign manager had "violated the law" by notarizing 62 signatures in Lincoln despite them coming from all over Nebraska.

He argued that the conduct violated the integrity of the ballot initiative petition process followed by circulators and notaries and mandated a second phase of trial, which never happened.

Kuehn's attorney, former state Sen. Andrew La Grone, agreed, saying: "If this is not a case where signatures lose the presumption of validity due to impeachment, then what is?"

He said any signatures attributable to the notaries and circulators "impeached by their own malfeasance no longer enjoy a presumption of validity." And the burden should shift to the petition-drive sponsors to show that the petitions are legally sufficient, he said.

Attorney Daniel Gutman, who represented the petition-drive sponsors, Eggers and former state Sens. Anna Wishart and Adam Morfeld, said under the state's and Kuehn's theory, if a notary makes a mistake on a single petition page — intentional or not — every other petition notarized by that notary is presumptively invalid unless rehabilitated by the ballot sponsors.

Even if the other petitions fully comply with the law.

He said the district court declined to invalidate the intent of thousands of Nebraska voters based on purported actions of notaries. He said no court in the country has ever taken the extraordinary step the challengers demanded, "and the district court declined the invitation to be the first."

"The record lays bare why challengers rely on a novel rule of decision no court has ever adopted: They offer nowhere near enough evidence to invalidate the petitions," Gutman argued.

In Friday's ruling, Chief Justice Jeff Funke said circulators and notaries have different roles in the petition campaign, and courts in other states have declined to invalidate signatures included on all pages notarized by a notary who had improperly notarized other petitions.

"We reject Kuehn’s and the Secretary’s assignment of error in this regard," he wrote. 

The court also said that Strong hadn't erred by failing to find a "general practice of rule-breaking" by notaries in the campaign based on the evidence. 

Concurring, Justice Stephanie Stacy said: "We often say that the right of initiative is precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of the spirit and letter of the law."

To ensure that the court's case law advances this goal, she said the court should reexamine case law to more thoroughly analyze whether declaratory judgment actions can be used to raise pre-election challenges to initiative petitions, to clarify who has standing to bring them and to analyze whether they become moot after an election. 

Ruling shifts focus to implementation

The Supreme Court could have plenty of opportunity, given the number of ballot initiative challenges currently pending. 

Following the ruling, Eggers said the court battle in this case may be ending, but the consequences of that obstruction remain. Patients are still waiting for access to the medical cannabis program, she said.

"State leaders have run out of excuses," Eggers said. "The voters won. The law stands. It is time for the political attacks and obstruction to end. Nebraska officials need to get out of the way and implement what the people of this state already demanded."

On July 1, the governor signed the state's medical cannabis regulations, replacing temporary regulations.

And at a meeting later that month, the Nebraska Medical Cannabis Commission approved a fee structure for businesses seeking to take part in the program and received applications from two manufacturing companies: Ogre Village and Sweetwater Cannabis Company.

Cultivators, manufacturers and dispensary operators now will be assessed licensing fees to begin or continue operating in Nebraska after the Legislature granted the commission authority earlier this year.