Nebraska Medical Marijuana Initiative Heads to Court

By Hilary Corrigan
Aug 31, 2020

Supporters of a MED ballot proposal in Nebraska overcame COVID-19 hurdles to collect enough signatures. Then they beat back a challenge from concerned residents over whether it met legal requirements to qualify for the ballot.

Now they face a lawsuit in the state’s supreme court from a Nebraska county sheriff.

The initiative calls for changing the state’s constitution to allow adults—with a doctor’s recommendation—to use, possess, access, buy and produce cannabis to alleviate a serious medical condition. It does not specify qualifying conditions, but the state legislature would create a regulatory program to facilitate it.

Now a court case is challenging whether Nebraskans will have the chance to vote on it. “We’re on the ballot, but we’re in a legal fight to stay on the ballot,” said Jared Moffat, the campaign’s coordinator for Marijuana Policy Project. “Last week was pretty intense.”

Challenge via letter

Nebraska Secretary of State Robert Evnen (R) approved the measure for the ballot Friday. It required 122,325 valid signatures and received at least that many.

A group of residents had challenged the measure in a letter to Evnen last week, raising concerns that the initiative’s wording did not meet state requirements. For instance, they highlighted the “single subject rule” that requires an initiative to have a single subject and purpose. Initiatives also can’t confuse voters on issues they’re asked to decide or create doubt about the action they authorize.

A Thursday response letter from Evnen found the proposal legally sufficient, meaning it meets state rules to qualify as a ballot measure. For instance, Evnen stated that the initiative complies with the single-subject rule, although he said it was a close call. 

The residents had argued that voters may be willing to approve the use of cannabis to treat medical conditions, but may not want to allow private entities to grow and sell cannabis. Evnen responded that “production and sale of medical cannabis has a natural and necessary connection to legalization” for individual use. “It is inherent in the legalization” of MED “that someone or some category of persons must be granted the right or authority” to produce, sell and distribute it.

The residents had also argued that the proposal violates the single-subject rule by including separate provisions for those under and over the age of 18. Evnen discounted that argument, saying the proposal has separate categories in order to allow parental consent for minors.

The residents had also complained of a lack of a penalty to distributors for using cannabis unlawfully, but Evnen said a subsection addresses that issue. He also knocked down arguments that the proposal creates confusion and doubt about actions authorized by a vote. The challengers had raised concerns over the lack of definition for serious medical conditions and over the rights granted to minors.

While the lack of criteria on medical conditions warranting medical cannabis “makes this a close case,” the proposal clearly lets medical professionals determine that question, Evnen stated. And while those under the age of 19 are generally considered minors in Nebraska, state laws have many carve-outs for 18-year-olds—including in health, so they don’t need parental consent.

Challenge via lawsuit

The lawsuit, filed Friday by Lancaster County Sheriff Terry Wagner, immediately followed Evnen’s letter with his decision allowing the measure to proceed. The suit names Evnen as the defendant, arguing that he can’t certify the initiative “because it is legally insufficient.” It calls for requiring him to remove it from the ballot.

The complaint lays out much of the same arguments over the initiative that the residents raised in their letter. (Read the complaint here.)

For instance, the complaint states that the initiative “contains several proposals that constitute direct and separate measures.” Those include amending the state constitution for different purposes—to legalize cannabis use by those with serious medical conditions, to allow private entities to produce cannabis, and to provide immunity for people and entities exercising those rights, the complaint argues. 

“These proposals lack a natural and necessary connection with each other,” the complaint says, arguing that the “separate subjects” need separate votes. 

Plaintiffs did not return calls requesting comment.

The complaint notes that Wagner’s attorney, Mark Fahleson—former chairman of the Nebraska Republican Party—filed the suit immediately after getting Evnen’s response letter.

Moffat expects the court to hear the case later this week. 

In his response letter to the residents, Evnen noted the “eleventh hour” challenge and that the issue “will surely result in court review no matter what I decide here.” He said he was issuing his decision quickly to give the courts time to review the matter. He also noted that “the constitutional right to bring forward initiative petitions for a vote of the people is fundamental to our state governance and is to be zealously protected.”

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