Update - Dec. 12, 2024: Lancaster County District Court Judge Susan Strong rejected a request in a lawsuit from John Kuehn that attempted to prevent Nebraska Gov. Jim Pillen from issuing a proclamation to approve the November election results by a Dec. 12 constitutional deadline. Pillen signed the proclamation on Thursday, but the lawsuit remains open.
Despite a Nebraska judge tossing John Kuehn’s legal claim last month that the signature-collecting process for a pair of medical cannabis ballot measures was insufficient, the prohibitionist is at it again with a new lawsuit.
A former Republican state senator, Kuehn filed a new lawsuit Dec. 10 asking for declaratory and injunctive relief in Lancaster County District Court—the same court where Judge Susan Strong ruled on Nov. 26 that a pair of voter-approved legalization measures from last month’s election fulfilled state requirements.
Still, Kuehn remains steadfast in blocking the initiatives—measures 437 and 438—from becoming law. Those statutory measures to legalize medical cannabis and provide for a regulated commercial marketplace passed with 71% and 67% support at the polls, respectively.
“The votes were held on two activist-drafted initiative measures which had, to that point, evaded any judicial review for their compliance with the United States Constitution or Nebraska Constitution,” Kuehn’s legal team argues in the latest case. “The time for that reckoning is now, before further taxpayer funds are spent on a futile effort. This lawsuit seeks a determination that both marijuana measures are in direct conflict with federal law, and therefore are preempted and cannot be law.”
The lawsuit names Nebraska Gov. Jim Pillen and Secretary of State Bob Evnen as defendants, as well as the Nebraskans for Medical Marijuana (NMM) legalization committee’s leaders: Campaign Manager Crista Eggers, Democratic state Sen. Anna Wishart and former Democratic state Sen. Adam Morfeld.
In part, Kuehn argues that the Supremacy Clause bars the voter-approved measures from going into effect because federal law preempts state cannabis regulations that conflict with the Controlled Substances Act (CSA).
This argument comes at a time when 38 states have implemented full-scale medical cannabis programs, while another nine states have loosened their laws to allow for limited access to medical cannabis or its derivatives. Idaho and Kansas are the only states where medical cannabis remains completely illegal: Nebraska voters favored parting ways with this lonesome duo in November’s election.
“With 70% support at the polls, Nebraska voters made it overwhelmingly clear that they support safe and regulated medical cannabis access,” Eggers said in a public statement on Tuesday. “The assertion that Nebraska’s new medical cannabis laws violate the Supremacy Clause of the U.S. Constitution disregards decades of state-led independence and innovation. Under the 10th Amendment of the Constitution, states have the right to address the unique needs of their citizens without undue interference.”
In the face of ongoing legal hurdles, Eggers said NMM remains committed to defending Nebraska’s medical cannabis laws to ensure that patients have access to “the care they deserve.”
Kuehn’s latest lawsuit calls attention to a Dec. 12 deadline for Pillen to issue a governor’s proclamation to declare ballot measures as approved or rejected by the voters, arguing that there is still time to block measures 437 and 438 from going into effect as laws, evening following the Nebraska State Board of Canvassers certification of the election results on Dec. 2.
Kuehn, through his legal counsel, served a demand letter to Pillen on Dec. 6, requesting that he refrain from declaring the medical cannabis legalization measures as Nebraska law by the proclamation deadline.
“This [legalization] scheme places Nebraska squarely at odds with several federal statutes intended to strictly circumscribe the dissemination of marijuana and the business of profiting from, or laundering money gained through, marijuana production and sales,” Kuehn’s lawyer, Edward Greim, wrote in the letter to the governor.
Pillen did not respond to the letter, according to the lawsuit.
Also in the lawsuit, Kuehn’s legal team argues that the “nondelegation doctrine” of the Nebraska Constitution bars the measures from going into effect.
“The governor has not only the power, but also the duty, not to expend public funds illegally and not to issue a proclamation giving legal effect to an initiative that violates the Nebraska Constitution and is therefore no law at all,” according to the suit.
This was one of five general allegations Kuehn’s legal team made in an attempt to block the voter-approved initiatives from being implemented:
- Federal law prohibits the use, production and distribution of marijuana;
- Nebraska’s attorney general issued an opinion deeming a state medical marijuana bill to be unconstitutional;
- Initiative measures 437 and 438 unlawfully passed in 2024;
- The Supremacy Clause bars the measures from going into effect; and
- The nondelegation doctrine bars these measures from going into effect.
The second allegation, in particular, was in reference to former Attorney General Douglas J. Peterson issuing an opinion on Aug. 1, 2019, on Legislative Bill 110. Sponsored by Wishart, L.B. 110 was to adopt the Medical Cannabis Act (MCA) to legalize and regulate medical cannabis.
“The attorney general cautioned against the MCA, arguing that the MCA would violate the Supremacy Clause because it was preempted by the CSA,” Kuehn’s legal team argued. “The attorney general’s reasoning did not stop with the MCA. It extended to any legalization or state regulation of marijuana.”
