Former Nebraska Senator Seeks High Court Review In Medical Marijuana Case Seeking To Scrap Voter-Approved Legalization Law

“This latest appeal is just another desperate attempt to silence the will of Nebraskans, who overwhelmingly support safe, legal access to medical cannabis.”

By Zach Wendling, Nebraska Examiner

A former state senator appealed a second case to the Nebraska Supreme Court seeking to invalidate the state’s voter-approved medical cannabis laws.

Former state Sen. John Kuehn of Heartwell, a former member of the State Board of Health and a longtime marijuana opponent, filed the brief appeal request Saturday. Kuehn has asked the Nebraska Supreme Court to step in without going through the intermediate Nebraska Court of Appeals. The courts have not yet decided whether to take up the appeal.

Kuehn seeks to argue that the 2024 voter-approved laws to legalize and regulate medical cannabis are unconstitutional because of federal laws against marijuana.

“Plaintiff has a right to appeal directly to the Supreme Court because his case challenges the constitutionality of Nebraska laws,” the one-page filing states.

Lancaster County District Judge Susan Strong on June 26 ruled that Kuehn could not prove “injury in fact,” known as “standing,” as a direct result of the medical cannabis laws.

Strong disagreed with Kuehn’s arguments that he should be able to sue because taxpayer funds would help carry out the laws, such as employee time, and that the laws were a “matter of great public concern.”

“Nebraska, like other states, has no shortage of citizen-taxpayers with strong political opinions. That is not necessarily a bad thing,” Strong wrote. “But it would be bad if all those citizens could sue whenever a law requires a government employee to do something.”

Among Kuehn’s main contentions is that Nebraska shouldn’t be able to create a medical cannabis program because of federal law classifying marijuana as a Schedule I drug. A Schedule I drug is one that the federal government says has a high potential for abuse and no accepted medical uses. A bipartisan swath of advocates has called for rescheduling the drug for decades.

Nearly 40 states, including Nebraska, have laws on the books for some form of medical cannabis program.

Kuehn also argues that the creation of the new Nebraska Medical Cannabis Commission, the members of which are named in the lawsuit, is an unlawful delegation of lawmaking authority.

The preemption case also names Gov. Jim Pillen (R), Secretary of State Bob Evnen, State Treasurer Tom Briese, Tax Commissioner Jim Kamm and the ballot sponsors who ushered the laws through the 2024 election.

Nebraska Attorney General Mike Hilgers (R) and his office, who are representing the state defendants, had asked for the case to be dismissed.

However, the AG’s Office did so after pledging to sue the Medical Cannabis Commission once it begins licensing medical cannabis establishments while making similar preemption arguments as Kuehn. Licensing must begin by October 1.

The Nebraska Supreme Court, as early as September, will hear a separate appeal from Kuehn, Evnen and Hilgers that seeks to invalidate the medical cannabis laws. That case, targeting Evnen and the ballot sponsors, argues there were not enough valid petition signatures for the ballot measures to have been placed on the 2024 ballot in the first place.

Strong presided over that earlier case and ruled last November in favor of the ballot measures. About 71 percent of Nebraskans voted to legalize the drug, and about 67 percent voted to regulate it.

Crista Eggers, executive director of Nebraskans for Medical Marijuana, the 2024 campaign that ushered in the new laws, said the continued legal challenges “are nothing short of an abuse of power.”

“This latest appeal is just another desperate attempt to silence the will of Nebraskans, who overwhelmingly support safe, legal access to medical cannabis,” Eggers said in a statement. “We will not be intimidated.”

This story was first published by Nebraska Examiner.

Photo courtesy of M a n u e l.