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“The petitions fulfill all constitutional and statutory requirements and are thus, legally sufficient under Nebraska law.”
By Zach Wendling, Nebraska Examiner
A Lancaster County District Court judge has dismissed major legal challenges against Nebraska’s two medical cannabis petitions, although the ruling is likely to be appealed.
District Judge Susan Strong, in a 57-page order Tuesday afternoon, said the “case was about numbers.” However, the lawsuit brought by John Kuehn, a former state senator and former State Board of Health member, and aided by Nebraska Secretary of State Bob Evnen and the Nebraska Attorney General’s Office fell “well short” of invalidating enough petition signatures secured for ballot access by this summer, Strong concluded.
The Nebraskans for Medical Marijuana campaign had two measures on the ballot, one to legalize medical cannabis and the other to regulate it. The measures passed with 71 percent and 67 percent voter approval, respectively.
The campaign needed 86,499 valid signatures on each petition. When Evnen certified the measures for the November ballot, he said they both exceeded that number by almost 3,500.
Strong ruled Tuesday that the “presumption of validity” was lost for 711 signatures on the legalization petition and 826 on the regulatory petition.
“In a record of this size, it is likely, perhaps inevitable, that the Court has made some mathematical errors,” Strong wrote. “It is also possible that the Court missed a few petitions that should lose their presumption of validity under this Court’s reasoning.”
Strong cautioned that the judgment wasn’t based on the inclusion or exclusion of a few petitions and that, either way, Evnen and Kuehn “would still fall short” of challenged signatures.
“The petitions fulfill all constitutional and statutory requirements and are thus, legally sufficient under Nebraska law,” Strong wrote.
AG’s Office, campaign weigh in
A spokesperson for the Nebraska Attorney General’s Office, which represented Evnen, said in a text, “We appreciate the Court’s time and thoughtful consideration in deciding this matter. We are reviewing the decision and considering next steps.”
Strong and multiple attorneys involved had noted the case was likely to be appealed to the Nebraska Supreme Court, no matter the outcome.
Eggers said that the campaign is pleased with Strong’s ruling and hopes that the election results will be upheld, soon ushering in safe, regulated treatments.
“Many years of hard work have gone into this effort—from volunteers, patients and families across the state,” Eggers said in a statement. “Knowing that another mother will soon have an option for her suffering child makes it all worthwhile.”
Kuehn’s attorneys did not immediately respond to a request for comment.
The legal arguments
The arguments from Kuehn and Evnen asked Strong to extend alleged instances of circulator fraud or improper notarizations to all petition pages that those individuals touched. For example, all of Egbert’s petitions or all signatures that a “malfeasant” notary oversaw.
Strong said she was “reluctant to create an apparently novel rule of imputation” and said she believed the court should exercise “great caution” before relying upon non-Nebraska cases.
“The only reliable guides to resolving this case are the Constitution and statutes of Nebraska, along with the cases interpreting those texts,” Strong wrote.
The AG’s Office said Strong should abide by Barkley v. Pool, a 1919 Nebraska Supreme Court case that dealt with fraud against a referendum petition seeking to block women’s suffrage. The justices said that once a circulator’s oath was impeached—in that case, three circulators forged signatures and then lied about doing so under oath—it could be extended to other acts.
Evnen’s attorneys also pointed to a 1992 opinion from the Nebraska Attorney General’s Office that said Barkley should apply to notaries. Strong noted that opinion is not binding.
Strong said the Legislature hasn’t created such a rule, but even if it had, Strong said she had “serious doubts” about whether such a rule would help carry out the petition process.
“By implication, courts do not have the power to create new rules for the initiative process,” Strong said. “If the Plaintiff and Secretary’s proposed rule of imputation exists, it must be found in the statutes. It is simply not there.”
Even if courts had that power, Strong said, she would not apply the standard because Evnen and Kuehn failed to prove there were “widespread” or “pervasive” instances of fraud or malfeasance.
Circulator fraud and bad notarizations
Strong did extend observed fraud to all other petitions for one paid circulator: Michael Egbert of Grand Island. However, she declined to do so with other circulators or for any notaries.
Those signatures from Egbert—487 on the legalization petition and 541 on the regulatory petition —represented more than a majority of the signatures that Strong said lost the presumption of validity but could later be rehabilitated, if necessary.
Egbert admitted under oath to using a phone book to illegally add voters and later forge their signatures. He said prosecutors promised him his testimony wouldn’t be used against him. Egbert pleaded guilty Nov. 8 to a Class I misdemeanor and $250 fine. He was initially charged with a felony.
Strong said there were five categories of improper notarizations:
Petitions notarized outside a circulator’s presence (which accounted for more than 300 of the flawed notarizations).
Self-notarization.
No notary stamp.
No circulator’s signature.
No notary’s signature.
Three other signatures were added to a petition page after it had already been notarized.
Credibility of a key witness
Jennifer Henning, another paid circulator, testified during the four-day trial in Lincoln that Eggers instructed Henning to pick up petition pages from Seward County and sign off that she had collected those signatures.
In her deposition, Henning said Eggers gave that direction over the phone. Strong said she found no evidence of wrongdoing on Eggers’ behalf.
“Henning’s credibility problems are serious and numerous,” Strong added, noting she is on probation for felony insurance fraud, has submitted fraudulent documents to Nebraska courts in the past and was previously sanctioned by a district court judge.
Garrett Connely, the statewide grassroots campaign coordinator for the ballot measures, said in his deposition that Henning had “a disdain for Crista Eggers that she’s not shy about.” Strong said she agreed, based on Henning’s “demeanor” during the four-day trial. She said in her ruling that she found Connely to be more credible.
“The Court finds Henning’s disdain for Eggers, her self-interest in exonerating her own conduct and her general disregard for the truth, affected her testimony in this case,” Strong wrote.
Strong said some of the signatures that Henning collected were notarized by Eggers and Connely outside Henning’s presence in part to accommodate her schedule and so she could get paid. Strong noted that Eggers and Connely were wrong to do so and that the accommodation didn’t excuse or justify their wrongdoing, but stated it wasn’t a pervasive practice.
Strong also concluded there was no evidence that Eggers or others told campaign volunteers to destroy evidence, as Henning alleged, or to withhold evidence, as the AG’s Office alleged.
The Fifth Amendment
Other witnesses, including Connely and Eggers, pleaded their Fifth Amendment right against self-incrimination. As a result, Kuehn and Evnen asked Strong to make an “adverse inference” that the testimony they would have provided would have been damaging.
Strong rejected those requests, as she also did before the trial, adding Tuesday that the dual role of the AG’s Office, with concurring criminal and civil investigations, differentiated the case.
Like Egbert, Henning was asked during the trial whether she received a “deal” or “benefit” in exchange for her testimony.
“Her answers were evasive,” Strong wrote. “For example, she claimed to not understand what the word ‘benefit’ means.”
Connely was told that his deposition couldn’t be used against him but that testifying at trial could, so he pleaded the Fifth.
Another notary, Jacy Todd of York, was criminally charged with 24 misdemeanors. He couldn’t appear in the trial because of his health. Todd’s attorney said in a signed affidavit that the AG’s Office “suggested” that Todd could benefit if he cooperated, which Todd refused to do.
A Hall County judge dismissed the charges against Todd last week; the AG’s Office has said it will appeal that decision.
“Although the Plaintiff and Secretary were entitled to an expedited trial, they were not entitled to a trial by inference,” Strong wrote. “… The fact that the Attorney General himself could influence whether a particular witness invoked the privilege against self-incrimination is also relevant to the appropriateness of an adverse inference.”
Strong said another key witness for Evnen, an out-of-state handwriting expert, was given little weight as his review relied on “handpicked” samples by Evnen’s attorneys, didn’t include sample signatures and didn’t conform with professional standards.
Evidence of rule-following
Evnen had advanced a “numbers-optional theory” that regardless of how many valid signatures were collected, the petitions should be tossed anyway for “widespread, coordinated” wrongdoing, which Strong rejected.
Even if she accepted the arguments, she concluded, there was insufficient evidence of such “widespread, coordinated” wrongdoing.
For example, in more than 800 pages of texts between Eggers and Connely this spring, only one page suggested a “practice” of notarizing pages outside a circulator’s presence.
Instead, Strong said, there was much evidence that Eggers and Connely regularly told campaign members to follow the “rules.” That includes texts where Eggers said they must be “100% adhering to legal” and when she requested members to go above and beyond state law.
In one text, Eggers said there was “no more nice campaign” and that “we don’t follow the rules anymore.” In other instances, Eggers was joking but not careful, Strong concluded.
Strong noted that some of the questionable texts were about collecting signatures at different venues, like baseball fields or concerts, not about breaking the law, as the AG’s Office contended.
“If there was a pervasive practice of notarizing petitions outside of the circulators’ presence,” Strong said, “then the Court would expect the evidence to be more pervasive.”
The medical cannabis petitions will head to the State Board of Canvassers on Monday alongside other ballot measures that were approved by voters. The board consists of five state constitutional officers: Gov. Jim Pillen, Evnen, Hilgers, State Treasurer Tom Briese and State Auditor Mike Foley.
Evnen and Hilgers previously said they would certify the cannabis results regardless of Strong’s decision. The measures would take effect within 10 days of certification by Pillen’s proclamation.
This story was first published by Nebraska Examiner.
Photo elements courtesy of rawpixel and Philip Steffan.
“}]] “The petitions fulfill all constitutional and statutory requirements and are thus, legally sufficient under Nebraska law.” By Zach Wendling, Nebraska Examiner A Lancaster County District Court judge has dismissed major legal challenges against Nebraska’s two medical cannabis petitions, although the ruling is likely to be appealed. District Judge Susan Strong, in a 57-page order Tuesday Read More
