LINCOLN — The targets of a legal effort arguing that Nebraska’s voter-initiated legalization of medical cannabis is federally unconstitutional have been expanded to include a new regulatory commission, the state treasurer and two state agencies.

Attorneys for John Kuehn, a former state senator, a former member of the State Board of Health and a longtime marijuana opponent, amended his December lawsuit on Friday to include broader swaths of state government overseeing implementation of the new medical cannabis laws.

The lawsuit first targeted Gov. Jim Pillen and Secretary of State Bob Evnen for allowing the measures to go into law, as well as the three ballot sponsors of the effort.

The amended complaint now adds:

• The three commissioners of the Nebraska Liquor Control Commission, who, by virtue of the voter initiatives, will compose a new Nebraska Medical Cannabis Commission.
• State Treasurer Tom Briese and Tax Commissioner Jim Kamm of the Nebraska Department of Revenue, who will oversee the new collection of sales taxes on medical cannabis. 
• CEO Steve Corsi of the Nebraska Department of Health and Human Services, whose department handles oversight of medical practitioners.

“In November 2024, taxpayers paid for two statewide votes which together sought to obtain an objective that was unconstitutional, unlawful and impossible: the legalization of the manufacturing, dispensing, and profiting from marijuana products for so-called medical purposes,” the amended complaint states.

Initiative Measure 437, to legalize up to 5 ounces of medical marijuana with a doctor’s written recommendation, passed with 71% of voter support. Initiative Measure 438, to create the state regulatory commission, passed with 67% voter approval.

Laws took effect Dec. 12

Kuehn’s lawsuit argues that the “activist-drafted initiative measures,” whose sponsors include two of Kuehn’s former colleagues in the Legislature, had evaded any judicial review by the time of the vote.

This is the second complaint from Kuehn. His first is being appealed to the Nebraska Supreme Court. Lancaster County District Judge Susan Strong in November rejected arguments that the measures were placed on the ballot illegally. A hearing on the appeal has not yet been scheduled.

Strong is presiding over Kuehn’s latest lawsuit. She was the same judge who rejected his last-minute attempt to block the measures from becoming law. The laws took effect Dec. 12.

Pillen and Attorney General Mike Hilgers have said “serious issues” remain whether the measures are legal under federal law or the Nebraska Constitution.

The core of Kuehn’s argument in the second case remains that no state can legalize marijuana because it remains listed as a federal Schedule I drug, which is defined as having no currently accepted medical use and having a high potential for abuse. Examples include heroin, ecstasy or LSD.

The federal government has been in the process of changing the classification of marijuana to a Schedule III drug, defined as drugs with a moderate to low potential for abuse that can be accessed with a prescription. Examples include ketamine, anabolic steroids, testosterone and Tylenol with codeine.

Expanded constitutional argument

The new lawsuit argues that once the laws are fully implemented, the State Treasurer’s Office, Department of Revenue and Department of Health and Human Services would need to unconstitutionally expend public funds and employee time to carry out the laws.

The AG’s Office, which typically defends state officials in lawsuits, declined to comment. None of the new defendants had any immediate comment.

Briese and Kamm, the lawsuit alleges, would need to violate federal money laundering laws because marijuana would be subject to sales taxes, similar to over-the-counter drugs.

And Corsi’s department would need to investigate possible disciplinary complaints against health care practitioners who recommend cannabis to Nebraskans, the lawsuit alleges, to see whether the practitioners followed their scope of practice or professional conduct, which Kuehn argues includes following federal laws. DHHS also would need to expend taxpayer dollars to issue guidance for the measures.

The Nebraska Medical Cannabis Commission — consisting of Commissioners Bruce Bailey, Harry Hoch, Jr., and Kim Lowe and up to two more members as appointed by Pillen — is required to develop regulations for allowing medical cannabis sales in the state.

By July 1, the new commission must establish criteria to accept or deny applications to license establishments to possess, manufacture, distribute, deliver or dispense medical marijuana. By Oct. 1, the commission must begin granting those registrations.

Until that time, it is illegal to purchase marijuana in Nebraska, and multiple advocates of the measures have expressed displeasure with many doctors refusing to recommend the drug. Advocates have argued the drug could help with seizures, chronic pain and other drug-resistant medical conditions.

The licensing framework is similar to that of the Liquor Control Commission. 

The delegation to the Medical Cannabis Commission is similar to voter-approved gambling initiatives in 2020, which created the Nebraska Gaming Commission. Lawmakers merged that group with the existing Nebraska Racing Commission in 2021.

Briese, a former lawmaker, oversaw legislative efforts to implement voters’ wishes of three gambling-related ballot initiatives as chair of the Legislature’s General Affairs Committee.

Possible legislative tweaks coming

That legislative committee, now led by State Sen. Rick Holdcroft of Bellevue, is expected to consider any legislation to tweak the medical cannabis measures, if introduced this year.

No such proposals have been introduced so far. Bill introductions continue through Jan. 22.

“While we understand and support reasonable rules and regulations – we will NOT support legislative attempts to subvert the will of the people, such as interfering with a health care practitioner’s ability to make a recommendation for alleviation of a patient’s medical condition, its symptoms or side effects of the condition’s treatment,” the Nebraskans for Medical Marijuana campaign said Sunday in a statement.

Kuehn’s attorneys argue that the delegation of legislative authority to the unelected medical cannabis commission effectively freezes out “all other legislative or executive efforts to ensure the public’s health, safety and welfare.”

On Thursday, Kuehn’s attorneys sent letters to the regulatory commission members, Briese and the state department directors demanding that they refuse to implement the laws. The move was similar to the December push urging that Pillen not issue proclamations making the measures law.

“No matter is of greater public concern than preventing the government from burdening the taxpayer with the administrative costs of violating federal law,” the amended lawsuit states.

The public officials did not respond to the requests from Kuehn’s attorney based in Kansas City, Missouri.

10th Amendment of U.S. Constitution

Crista Eggers, one of three sponsors for the marijuana ballot measures, said in December that the assertion the laws violate the U.S. Constitution “disregards decades of state-led independence and innovation.”

“Under the 10th Amendment of the Constitution, states have the right to address the unique needs of their citizens without undue interference,” Eggers, the campaign manager, said then. “The campaign remains committed to defending Nebraska’s medical cannabis laws to ensure patients and families have access to the care they deserve.”

Nebraska became the 39th state to authorize some form of medical cannabis. Nearly every state has now legalized some form of cannabis or its derivatives. About two dozen states allow recreational marijuana sales and distribution.

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