Lawyers weigh whether to fire Nebraska health care provider

LINCOLN — A Lancaster County District Court judge will soon decide whether to dismiss lawsuits against two Nebraska medical marijuana ballot measures based on a series of new briefs filed Tuesday.

Judge Susan Strong set a Tuesday deadline for the parties named in the lawsuit. John Kuehn sued. The lawsuit names Secretary of State Bob Evnen and three sponsors of Nebraska’s medical marijuana movement.

Sponsors include Lincoln state Sen. Anna Wishart, campaign manager Crista Eggers and former Lincoln state Sen. Adam Morfeld.

Strong said Friday she intends to make a decision “narrowly” on Wishart, Eggers and Morfield’s motion to dismiss the case this weekend. Things became more complicated after Avni asked the court to hear the case anyway and determine once and for all the true number of valid signatures.

The two petitions in the middle will be on the November 5th ballot, they are:

“Nebraska supports proactive public policies”

Kuhn’s attorneys wrote that “outrage” over Kuhn’s decision to pursue the case was “misplaced,” claiming that thousands of allegedly fraudulent signatures were enough to disqualify the effort.

“Nebraska’s pro-initiative public policy does not allow initiative petitions to bypass judicial review,” Kuhn’s brief states.

Heartwell’s John Kuehn (left) joins three attorneys to begin formal court proceedings in a case against two 2024 ballot measures related to medical marijuana. Attorneys (from left) are Steven Guenzel, Andrew La Grone and Anne Marie Mackin. September 20, 2024.

Kuhn has been a leader in Sensible Approaches to Marijuana (SAM), a national organization dedicated to preventing “another big tobacco.”

The Wishart-Eggers-Morfield brief argued that Coon was “demanding what amounted to a recount” and suggested that he was “best positioned to make important election decisions” that had already been made through a variety of local resources and tools Have a robust process in place to determine effectiveness.

“They (Kuhn and his attorneys) also pose a threat to the broader advocacy process — a process that the Nebraska Supreme Court just last week reaffirmed “is valuable to the people and that the court is passionate about maximizing. Maintain the spirit of this program to the maximum extent possible.

Kuhn’s attorneys disputed that “suffocating and inflammatory characterization,” pointing to Efnan, who asked the court to finalize the number of valid signatures in addition to the work Efnan had already completed.

‘Public confidence in elections’

Avnen’s brief was written in part by former state lawmaker and Nebraska Attorney General Mike Hilgers. Hilgers opposes medical marijuana and delta-8, which contains tetrahydrocannabinol (THC), the compound in the marijuana plant often associated with getting people high.

Hilgers is also investigating alleged fraud in marijuana petitions, which uncovered at least one case of alleged petition fraud that led to the arrest of a Grand Island man on felony charges.

Nebraska Secretary of State Bob Evnen announces the finalization and certification of candidates and the questions that will be presented to voters in the November 5, 2024 general election. September 13, 2024.

Evan-Hilgers’ brief, however, lays out a broader rationale for the lawsuit, noting that “public confidence in the electoral process is a cornerstone of democratic governance.”

Quoting a 2012 report global commission on elections, democracy and securityAvnen’s brief noted the need for credible elections to avoid the risk of “the entire political system slowly rotting away from within”.

Efnan’s attorney said he defended his office, election staff and the verification process and said Efnan must be “vigilant and zealous in safeguarding the integrity of all aspects and stages of the election process.”

Evnen is pursuing the charge because the Grand Island example “raises suspicions of unusual and serious irregularities,” the attorney general’s office wrote.

“Such serious violations undermine public confidence in the electoral process,” wrote Evnen on behalf of the Attorney General’s Office. “These breaches must be investigated and any uncertainty about the validity of signatures that may have been tainted by fraud or malfeasance authoritatively resolved.”

“Presumption of validity”

Evnen’s brief said at least one notary signed the Grand Island man’s petition without his alleged absence, which also raises questions about additional signatures.

On these petitions, the “presumption of validity” of the signatures has been lost, but the sponsors can provide evidence and have the signatures “reinstated,” the brief reads.

“To be sure, removing the presumption of effectiveness is a good medicine,” Evnen’s briefing notes. “But here it makes sense.”

Nebraska Board of Pardons Secretary Bob Evening, Gov. Jim Pillen and Attorney General Mike Hilgers spoke before the Board of Pardons meeting. August 20, 2024.

Kuhn’s attorneys, along with Evnen, argued that Grand Island’s accusations “thrown into question” thousands of signatures.

Evnen and Hall County Elections Commissioner Tracy Overstreet confirmed that the alleged fraudulent signatures were excluded before the ballots for the Nov. 5 election were certified.

Lawyers for the sponsor argued that Avnan did not discover any signatures that were “miscalculated” during the verification process.

“In fact, in the same complaint, he (Evnen) categorically denied plaintiffs’ allegations that he miscalculated his signature,” the sponsor’s brief states.

Lawyers for the sponsors said the Kuehn lawsuit and Evnen’s accusations will lead to a decision on whether to re-verify the more than 228,000 signatures on the two petitions.

Kuhn’s accusations include signatures from voters who did not provide complete information (date of birth, address, signature, etc.) or who signed petitions but whose distributors did not disclose whether they were paid.

Kuehn and Evnen’s brief argued that the paid versus unpaid circulator requirement is a serious one that should not be ignored by courts and should be defended by sponsors.

“Single subject” allegation

Kuhn also believes that measures related to regulating medical marijuana are composed of various “subjects” that violate the Nebraska Constitution, and he believes that establishing a new commission is different from decriminalizing marijuana for private entities.

Attorney Daniel Gutman is one of three attorneys representing state Sens. Anna Wishart, Crista Eggers and former state Sen. Adam Morfeld in a lawsuit against the three A lawsuit was filed against a ballot measure that would legalize and regulate medical marijuana in Nebraska. September 20, 2024.

Attorneys for Wishart, Eggers and Morefield noted that in 2020, a successful ballot measure targeting gambling led to the expansion of the Nebraska Horse Racing Commission into Nebraska Racing and Gaming Commission Oversee expanded play. They also argued that the subjects were “naturally and necessarily related,” as the Nebraska Supreme Court required.

Also in 2020, when the high court ruled on whether gambling petitions qualified for the ballot, it also dismissed the only medical marijuana petition from the ballot on single-subject grounds. As a result, the sponsor split the petition into two parts during a subsequent ballot campaign.

Kuhn’s attorney said the marijuana effort differed from gambling because no “natural regulator” of gambling existed at the time and that the Nebraska Department of Health and Human Services and the Board of Pharmacy already oversaw all drugs and prescriptions.

“Creating a new enforcement entity solely for the purpose of regulating a drug is neither natural nor necessary for the overall purpose of regulating medical marijuana,” Kuhn’s brief states.

In Avnen’s first response to the court last week, his lawyers argued that the single-subject matter should be “finally decided” by the court. However, the brief filed Tuesday noted that Evnen “firmly opposes” the challenge.

Legal requirements for court cases

Sponsors of the vote argued that Avnen’s “cross-claims” were “entirely hypothetical,” and the secretary of state, while denying Kuhn’s accusations, argued that the courts should intervene.

“Secretary Evan is asking the court to discharge his ministerial duties rather than defend his office and the work of election officials across the state,” the sponsors’ brief said.

Supporters of medical marijuana packed the courtroom Friday for the first day of court hearings that could determine the fate of two 2024 medical marijuana ballot measures. Front row center is the petition’s originator. From left: Sen. Anna Wishart of Lincoln, Sen. Crista Eggers of Gretna and former state Sen. Adam Morfeld. September 20, 2024.

The promoters argue that the court cannot yet rule on the case because there is no “actual case or dispute.” The brief cited past court cases and noted that courts cannot decide “future, contingent or uncertain” facts.

“The cross-claim is filled with conclusive allegations that are insufficient to survive a motion to dismiss—not surprising since the facts on which his claim is based do not currently exist (and likely never will),” Sponsored Shang’s lawyer wrote. “…the cross-claim raises a premature and non-justiciable issue for which the court lacks jurisdiction.”

Avnen’s brief states that the court can help Nebraskans have “the utmost confidence” in the integrity and fairness of Nebraska’s elections and election processes.

The brief goes on to say that unless this certainty is resolved, Avnien’s satisfaction with the responsibilities of his office and his ability to perform them “will be hindered.” He and Hilgers believe the public needs assurances that the authority of a public ballot initiative or referendum will not be infringed.

“Compliance with constitutional and legal requirements that protect the integrity of the electoral process will facilitate, not hinder, the exercise of these powers,” Avnen said.

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