A Lancaster County District Court judge overruled a motion to amend the complaints against Nebraska’s medical marijuana initiatives on Thursday, a little more than a week after dismissing the legal challenges against them.
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Judge Susan Strong denied requests from former Sen. John Kuehn, who sued to stop the initiatives from being placed on the ballot, and Secretary of State Bob Evnen, who filed a cross-claim against Nebraskans for Medical Marijuana.
Lancaster County District Judge Susan Strong listens as evidence is presented during the first day of the medical marijuana civil trial on Oct. 29 in a lawsuit seeking to invalidate Nebraskans for Medical Marijuana petitions.
KENNETH FERRIERA, Journal Star file photo
In a Nov. 26 decision, Strong said Kuehn and Evnen’s legal teams were only able to prove that several hundred signatures should be deemed invalid, falling well short of the number needed to rule the successful initiatives void.
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The Nebraska Attorney General’s Office, which is representing Evnen in the case, asked Strong permission to amend its cross-claim on Nov. 29 to throw out all the petition pages circulated by an Omaha woman who admitted wrongdoing during trial.
Evnen’s legal team also asked to have the initiatives tossed because of systemic wrongdoing that made it impossible to determine which signatures were genuine and which weren’t.
A few days later, Kuehn’s attorneys asked Strong to reconsider evidence of “circulator malfeasance” it said was shown during the four-day trial that ended on Nov. 4, a day before Nebraska voters overwhelmingly supported the measures.
Zach Viglianco, the deputy solicitor general who represented Evnen in the civil trial, told the court the filings were part of preparing an appeal of Strong’s decision — action that must be taken by Friday.
In a response filed on Tuesday, Daniel Gutman, an attorney representing Nebraskans for Medical Marijuana, said the arguments put forward by Kuehn and Evnen after trial amounted to “an entirely new and novel legal theory.”
“Simply put, the ballot sponsors would have defended the case differently had they known of the newly raised issues and theories,” Gutman wrote in a Dec. 3 filing.
On Thursday, in a five-page order, Strong denied the requests, saying that even if considered and accepted they would not have altered the outcome of the case.
Strong said attempting to add a claim that any petition circulated by Jennifer Henning, an Omaha woman who admitted to wrongdoing during the trial, be rejected was not reflected in the evidence entered at trial.
Henning claimed she signed petition sheets outside the presence of a notary, and dropped off other sheets to the home of Crista Eggers, the campaign manager, which were later improperly signed.
The judge said the attorney general’s office sought to use Henning’s testimony to prove Eggers’ wrongdoing; not as proof of fraud itself.
“Thus, it appeared that the Secretary treated Henning’s testimony only as evidence of improper notarization, not circulator fraud,” Strong wrote.
Strong also said that removing the signatures collected by Henning would not have changed the outcome of the case, and said the argument put forward to declare the initiatives invalid based on pervasive fraud was not made until closing arguments.
Regarding Kuehn’s attempt to amend his complaint, Strong said there were no allegations made regarding circulator fraud or malfeasance, only improper notarization.
“The phrase ‘circulator malfeasance’ was not even said once during the trial,” Strong wrote, adding there was also no evidence of circulator fraud presented.
The successful medical marijuana petitions were unanimously certified by the five-member State Canvassing Board on Monday, which included Gov. Jim Pillen, Evnen, Attorney General Mike Hilgers, Treasurer Tom Briese, and Auditor Mike Foley.
Initiative 437, which legalizes medical cannabis in Nebraska, passed with more than 70% of the vote. Initiative 438, which sets regulations for medical marijuana, won with two-thirds of the vote at the Nov. 5 general election.
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Rachel Mulcahy of Lincoln unveils a roll of about 300 signatures supporting the group Justice in Action during a rally in front of the Hall of Justice on Thursday. The scroll was later delivered to the office of Lancaster County Attorney Pat Condon.
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A line of people waiting to vote has been normal at the Lancaster County Election Commission Office at 601 N. 46th St., as it was Friday afternoon. The office will be open 7 a.m. to 5 p.m. Monday to allow voters to cast an early ballot. If they wait until Election Day, they will need to go to their precinct or drop off their ballots at one of five drop boxes across the city. For more stories about about Tuesday’s election, go to Journalstar.com.
KENNETH FERRIERA, Journal Star
Reach the writer at 402-473-7120 or cdunker@journalstar.com.
On Twitter @ChrisDunkerLJS
“}]] Lancaster County District Court Judge Susan Strong said the suggested amendments would not have changed her decision to dismiss the lawsuit filed against Nebraskans for Medical Marijuana. Read More
