Crista Eggers of Nebraskans for Medical Marijuana, center, leads a news conference urging legislative support for bills to help implement a safe, fully regulated medical cannabis system. March 3, 2025. (Zach Wendling/Nebraska Examiner)
LINCOLN — The new commissioners set to regulate medical cannabis in Nebraska, as well as the ballot sponsors of the successful effort to legalize it in 2024, blasted an ongoing lawsuit against them as “meritless” and seeking to create a “false conflict.”
In briefs filed Friday, attorneys for the 11 defendants named in the John Kuehn v. Gov. Jim Pillen case explained why they are seeking to dismiss the case.
Kuehn, a former state senator, former State Board of Health member and longtime marijuana opponent, filed the case in December. It sought to declare the voter-approved legalization and regulation of medical cannabis unconstitutional. He expanded the case in January to encompass more state officials.
The lawsuit’s main argument is that the Nebraska laws are unlawful, or preempted, because of the federal Controlled Substances Act.
The legal filings so far
John Kuehn initial lawsuit (filed Dec. 10)
John Kuehn amended lawsuit (filed Jan. 10)
State officials brief in support of motion to dismiss (filed March 28)
Nebraska Medical Cannabis Commission brief in support of motion to dismiss (filed March 28)
Ballot sponsors brief in support of motion to dismiss (filed March 28)
Typically, cases can only move forward if the party suing can prove direct harm because of the laws, known as “standing.”
Kuehn has conceded he can’t prove standing directly, so to get his foot in the door, he is arguing that his case has standing on behalf of the “taxpayer” or “great public interest,” narrow paths for certain cases to proceed. The first standard regards the spending of public dollars, while the second argues the matter should be taken up because it is of a “great public interest” to Nebraskans.
The lawyers for five state officials, the three commissioners on the Nebraska Medical Cannabis Commission and the three ballot sponsors said neither type of standing applies to Kuehn.
“There is no ‘great public interest’ in invalidating a law approved by a massive supermajority of Nebraska voters which will be susceptible to challenge by many,” the attorney wrote for Bruce Bailey of Lincoln, Harry Hoch, Jr. of Omaha and Kim Lowe of Kearney of the Nebraska Medical Cannabis Commission.
Kuehn’s legal team had no immediate comment on the new filings. His team has until late April to file a response under a briefing order by Lancaster County District Judge Susan Strong. Strong, who ruled against Kuehn in an earlier marijuana-related case, has scheduled an in-person hearing on the motions to dismiss the preemption case for May 20.
The role of Congress
The sponsors of the medical cannabis ballot measure criticized Kuehn’s lawsuit as an attempt “to flip federalism on its head.” They said Kuehn “supports an expansive federal government and a weakened state government at the expense of Nebraska voters who just passed two laws by huge margins.”
Voters overwhelmingly approved the measure to legalize up to 5 ounces of medical cannabis with a physician’s recommendation with 71% support. It secured majority support in all of Nebraska’s 49 legislative districts. A second measure to regulate medical cannabis through the newly created commission passed with 67% support, including majority support in 46 legislative districts.
H/T: nebraskaexaminer.com
