Nebraska medical marijuana petition dispute will go to trial

LINCOLN, Neb. (WOWT) – The judge overseeing the case on Nebraska’s medical marijuana petitions ruled Friday that the matter will proceed to trial.

In a Zoom hearing Friday morning, Judge Susan Strong overruled the motion to dismiss a cross-claim brought forward by Secretary of State Bob Evnen. She said she was skeptical the cross-claim could stand on its own but would leave questions about standing to the appellate courts.

If passed by voters in November as they stand now, one ballot initiative would allow patients to purchase medical marijuana and the other would allow businesses to sell it.

“We have kind of a burden-shifting situation,” Judge Strong said, noting that good arguments were presented on both sides.

And while an extension was sought for issues that weren’t the subject of the original filing, more allegations have come to light that should allow amending of the filings, the judge said.

Certainly some signatures will be thrown out, she said, such as the ones confirmed to be fraudulent. But there may be other situations where the defendants can prove a sufficient number of signatures were collected legally.

But first, the plaintiff and the Secretary of State have to prove the petitions included many signatures that were wrongly obtained — and that intentional fraud was committed, not just clerical errors. If they can’t prove enough signatures are in question that the ballot initiatives would not have been certified for inclusion on the ballot, then the case stops there.

If they do prove it, then it falls to the defendants to prove they obtained enough legal signatures — that circulators and petitions were genuine — to rightly put the matter on Nebraska’s November ballot.

If both arguments are presented and there’s not clear way to tell whether there was widespread wrongdoing, Judge Strong said the decision will default to assume fraud under the precedent of Barkley v. Pool, a case argued in front of the Nebraska Supreme Court in 1919 over women’s suffrage.

Should the trial move into a second phase, the burden of proof would fall on the defendant to prove that the signatures on the petitions were valid.

That phase likely would be post-election, Judge Strong said.

“That timeline is extremely tight,” she said.

The state’s attorneys said they were supportive of the idea of splitting the case, but the defense said they wanted to talk to their clients about whether to split the case once the formal proposal is filed, so they can see how the state envisions that split.

Regardless, the judge said she is leaning toward doing so, saying that it should benefit the defense as she sees their tasks as daunting.

“I don’t know how you’re going to concentrate on responding to the plaintiff and the Secretary of State at the same time you’re trying to prove genuineness of signatures. I mean, it sounds like an overwhelming task,” she said.

Noting that the deadlines may need to be fluid given the nature and urgency of the case, the judge granted deadlines to move to Monday for disclosure of exhibits and witnesses and Tuesday for deposition notices.

“Everything has to be somewhat fluid so that I give everybody a fair shake here,” she said at the conclusion of Friday’s hearing.

According to the state’s attorneys, Evnen stands by the work done during the petition certification process.

“It’s clear to us, as we say in our brief, that Sec. Evnen intends to use this case kind of in a broader effort to undermine the initiative process. And we don’t say that lightly. We know that is a bold statement,” he said. “But it’s justified here because he’s advancing a position in this case that has never been adopted by a single court in Nebraska and as far as we can tell has never been adopted by a single court in the entire country.”

He said that Evnen wants to “balloon” the theory, saying that any mistakes found on certain signatures collected by a petition circulator should not invalidate all 200 pages of signatures collected by that person. The claim moves the dispute from 17,000 to 100,000 signatures.

“It just makes little sense to us that they would come to the court and say, ‘Judge, as a result of notary malfeasance, we want you to strike the will of 100,000 Nebraskans who validly signed this petition.’”

He said the Nebraska AG’s office is conflating “malfeasance” with “fraud” — that malfeasance is a technicality and the plaintiffs aren’t fulfilling the claim of fraud. He also pointed out that notaries have no interaction with the voter, agreeing that if there’s a bad signature by a voter, it should be stricken.

Zachary Viglianco with the AG’s office said that “serious and significant tangible evidence of fraud” has been uncovered in the investigation, noting that two have been officially charged.

“There have been, since the Secretary’s certification, serious and significant tangible evidence of fraud that was uncovered in a investigation in conjunction with local officials that has cast a cloud of certainty over the validity of the signatures — many of the signatures, thousands of the signatures that have been submitted,” he said.

He said that counter to the defense arguments, the AG’s office has been focused on serious issues with petition validity, not just any mistake for any reason. The crossclaim is focused on serious irregularities, overt fraud, and malfeasance by notaries — criminal activity, not just sloppiness and mistakes.

Evnen has said publicly that he’s not going to take unilateral actions like walking back the certification. Instead, the state is asking the court to look at significant regularities and say whether there are a sufficient number of signatures for the initiatives to legally appear on the ballot.

But Gutman said that Evnen himself would be the one to provide the remedy in the case.

“Secretary of State Bob Evnen is essentially suing himself,” he said.

Defense attorneys said Friday that they hadn’t yet received any notification from the state about which petition pages they allege are fraudulent — that they haven’t been able to examine the evidence. Instead, they said, they were provided a list of all petitions provided from each notary and a general statement saying all are tainted with fraud.

The attorneys from the AG’s office, however, countered that the entirety of those petitions were precisely those in question, and said those files had been sent out. Those files were so big that even the judge commented on how unwieldy they were, stating that her computer only managed to get about 12% through the file over the span of five or six hours.

• Notary Shari Lawlor related to petitions submitted in approximately 45 counties.
• Notary Shannon Coryell related to petitions submitted in approximately 44 counties.
• Notary Patricia Petersen related to petitions submitted in approximately 54 counties.
• Notary Kimberly Bowling-Martin related to petitions submitted in approximately 41 counties.
• Notary Crista Eggers related to petitions submitted in approximately 28 counties.
• Notary Garrett Connely related to petitions submitted in approximately 45 counties.
• Notary Marcie Reed related to petitions in submitted in approximately 31 counties.
• Petitioner Edward Matthews related to petitions submitted in two counties.
• Peititioner Tommy Davis related to petitions submitted in two counties.
• Petitioner Linda Middleton related to petitions submitted in three counties

The state says the evidence allegedly impacts petitions collected in at least 71 of Nebraska’s 93 counties:

Read the documents

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