Former Nebraska state senator John Kuehn is not giving up his fight to prevent state residents from using and purchasing medical cannabis. Despite overwhelming voter support for legalization initiatives, Kuehn has appealed one lawsuit he lost to the state Supreme Court and has filed another legal challenge to Measures 437 and 438.
Gov. Jim Pillen signed proclamations certifying the enactment of the legalization measures Thursday, Dec. 12, after Lancaster County District Judge Susan Strong denied Kuehn’s request for an emergency injunction on Wednesday.
However, Pillen and Attorney General Mike Hilgers said in a joint statement that the proclamations don’t express a judgement on the validity of the measures, noting that marijuana is still illegal under federal law.
“Both the Governor and the Attorney General believe that serious issues remain regarding the validity of these petitions under federal law and the Nebraska Constitution,” the statement says. “Under federal law, it is unlawful to either possess or sell Schedule I controlled substances. The passed measures cannot, and do not, change federal law.”
Measure 437, the Nebraska Medical Cannabis Patient Protection Act, was approved by 71% of the voters in November. Measure 438, the Nebraska Medical Cannabis Regulation Act, passed with 67% of the vote.
New lawsuit claims medical cannabis measures are unconstitutional
In his first lawsuit filed before the election, Kuehn, who is also a former member of the State Board of Health, alleged that there were not enough valid signatures collected for the pair of initiatives after a signature gatherer and notary were arrested for alleged fraud and malfeasance. Secretary of State Bob Evnen joined the lawsuit, represented by the attorney general’s office.
The charges against the notary were later dismissed by a Hall County judge. Judge Strong then ruled Nov. 26 that the evidence did not demonstrate pervasive fraud. While Strong said the “presumption of validity” was lost on more than 700 signatures for the legalization petition and over 800 for the regulatory petition, the initiatives were still valid, the Nebraska Examiner reported.
Kuehn has appealed that decision, which was accepted by the Nebraska Supreme Court, skipping over an appellate court.
He also filed a new lawsuit on Dec. 10 in Lancaster County District Court. His new complaint alleges that because cannabis is federally illegal, the measures violate the U.S. and Nebraska constitutions. Also, the authority of a special commission to regulate cannabis under Measure 438 violates the state constitution, he claims.
“The Governor has a duty to refuse to spend taxpayer dollars, or to otherwise exercise the executive powers of his office, in support of a measure or statute that cannot be “law” under the Nebraska Constitution,” the complaint states.
Kuehn filed the lawsuit after the governor did not respond to a Dec. 6 “demand letter” requesting that he not perform the “ministerial act that would give legal effect to an unconstitutional statute.”
Medical sales are supposed to start next year
The Nebraska Medical Cannabis Patient Protection Act allows patients and their caregivers to possess up to 5 ounces of cannabis with a health care practitioner’s recommendation. A health care practitioner includes physicians, a physician’s assistant or a nurse practitioner. Caregivers can be individuals at least 21 years of age or healthcare facilities.
The Nebraska Medical Cannabis Regulation Act creates a regulated market to obtain cannabis. The initiative would establish the Nebraska Medical Cannabis Commission, to be comprised of the three members of the state Liquor Control Commission. The governor, with senate approval, could appoint two additional members.
By July 1, 2025, the commission is to establish criteria for applications for cannabis business “registrations.” By no later than Oct. 1, 2025, the commission would need to grant registrations to businesses that meet eligibility requirements. The initiative sets no limits on the number of business types or other requirements, such as social equity criteria, taxes or fees.
The petitions were sponsored by state Sen. Anna Wishart, former Sen. Adam Morfeld and Crista Eggers, campaign manager for Nebraskans for Medical Marijuana. Wishart also sponsored LB 588 to legalize medical cannabis, but the bill was indefinitely postponed in April. This is the third time Nebraskans for Medical Marijuana has tried to pass a ballot initiative.
The campaign collected approximately 114,000 signatures for each of these initiatives. Each petition needed at least 87,000 verified signatures to qualify for the ballot. The patient protection initiative received 89,962 signatures, and the market regulation initiative had 89,856 signatures.
Attorneys for Nebraskans for Medical Marijuana blamed “human error” for isolated mistakes that amounted to only about 700 purportedly fraudulent signatures on one measure and 400 on the other, the Nebraska Examiner reported. Meanwhile, Evnen and Hilgers said there was “pervasive and intentional wrongdoing,” and more than 77,000 signatures across both petitions should be thrown out.
While celebrating the governor’s action Thursday, Eggers acknowledged that the fight to legalize cannabis medicine continues.
“Over a decade ago, a brave and determined group of patients and caregivers began fighting for medical cannabis access in our state. They shared their stories and poured their hearts into educating others about the life-changing potential of medical cannabis. This fight is not just about access to a plant – it’s about hope, dignity, and the belief that no one should suffer needlessly when relief is possible,” Eggers said in the statement.
“However, the journey isn’t over. While these measures are not law, patients must wait for the newly established regulatory commission to draft and implement the rules governing medical cannabis use. For many, this delay will feel agonizing. But today’s victory is a reminder that progress is possible – and that the dream of accessible relief and healing for Nebraskans is closer than ever to becoming a reality.”
Emails to Kuehn’s attorneys seeking comment were not returned.
