New lawsuit seeks to stop Nebraska Gov. Jim Pillen from signing medical marijuana laws

The laws are set to take effect with Pillen’s signature on Thursday.

The lawsuit, filed Tuesday by former state Sen. John Kuehn argued Pillen is barred by federal law from declaring Initiatives 437 and 438 were “in full force.”

The complaint puts the state in the position of defending the medical marijuana initiatives at the same time it is seeking to have them ruled void in a separate lawsuit now before the Nebraska Court of Appeals.

And because the lawsuit focuses on federal laws preempting state laws — something Attorney General Mike Hilgers and other top state officials often rail against — it could ultimately find its way into the federal court system, where it could impact other states where marijuana has been legalized.

In the meantime, the measures circulated by Nebraskans for Medical Marijuana that passed during the Nov. 5 general election are supposed to take effect on Thursday with Pillen’s signature.

Initiative 437, which legalizes medical marijuana in Nebraska, passed with nearly 71% of the vote, while Initiative 438, which carried 67% of the vote, would regulate medical marijuana.

Despite the overwhelming results, Kuehn, in a Dec. 6 letter to Pillen, said the governor was not obligated to issue a proclamation declaring them in effect if they in fact violated federal statute.

“Given the governor’s constitutional charge, he may refuse to perform even a ministerial duty imposed by the Legislature where that ministerial act would cause him to violate the Constitution,” the letter states.

Pillen ignored Kuehn’s demand that he not issue the proclamation, however, which resulted in the lawsuit filed Tuesday afternoon. It will get a hearing in Lancaster County District Court on Wednesday afternoon.

In his latest complaint, Kuehn argues that any state law legalizing medical marijuana runs counter to the Controlled Substances Act passed by Congress in 1970.

Marijuana remains a Schedule I drug under the Controlled Substances Act, which Kuehn’s lawsuit said indicates the seriousness with which the federal government continues to view the drug, despite 38 of 50 states now having medical marijuana laws on the books.

Two dozen states allow for the purchase and use of recreational marijuana.

Kuehn pointed to an opinion from former Attorney General Doug Peterson, who in 2019 said a previous attempt to legalize medical marijuana would violate the Supremacy Clause of the U.S. Constitution.

“Nothing about the federal government’s relaxed view of its enforcement obligations under the CSA changes the fact that Congress intended the CSA to prohibit” marijuana legalization, Peterson’s opinion stated.

While attorney general’s opinions are often sought by state legislators crafting policy, Nebraska courts have determined they do not carry the weight of law or a judge’s decision.

The complaint also argues Initiative 438, which creates regulations around medical marijuana in Nebraska, also violates the separation of powers clause in the state constitution because it goes around the Legislature to create a regulatory commission.

Kuehn, who is represented by former state Sen. Andrew La Grone, Anna Marie Mackin of Austin, Texas, and Edward Geim of Kansas City, Missouri, asked for an injunction against Pillen.

The lawsuit is the latest seeking to stop the medical marijuana petitions from taking effect.

In September, Kuehn sued Secretary of State Bob Evnen to stop the certification of the two petitions circulated by Nebraskans for Medical Marijuana, alleging widespread fraud and malfeasance by circulators and notaries.

Evnen certified by petitions on Sept. 13, but a week later filed a cross claim against Nebraskans for Medical Marijuana after an investigation by Attorney General Mike Hilgers uncovered what he alleged was evidence that could invalidate the petitions.

However, Lancaster County District Court Judge Susan Strong ruled against Kuehn and Evnen on Nov. 4 at the end of a four-day civil trial, arguing there wasn’t enough evidence to deem the medical marijuana initiatives “legally insufficient.”

In a Nov. 26 order, Strong said the limited number of irregularities that could lead to signatures being thrown out would not have disqualified the petitions. That case has been appealed.

Strong’s involvement with the lawsuits against Nebraskans for Medical Marijuana’s initiatives is not over — she was assigned Kuehn’s latest attempt to overturn the successful initiatives that could soon become law.

Nebraskans for Medical Marijuana sponsors Anna Wishart and Adam Morfeld, both former state senators from Lincoln, and campaign manager Crista Eggers, are also named in the lawsuit.

In a statement Tuesday night, Eggers said Nebraska’s voters “made it overwhelmingly clear” they supported legalizing and regulating medical marijuana.

“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,” Eggers said. “Under the 10th Amendment of the Constitution, states have the right to address the unique needs of their citizens without undue interference.”

Nebraskans for Medical Marijuana said it remained committed to defending the medical marijuana laws “to ensure patients and families have access to the care they deserve.”