“Many of the Secretary’s proposed changes simply do not conform to the evidence actually presented at trial.”
By Zach Wendling, Nebraska Examiner
A Lancaster County District Court judge has overruled two final attempts to amend legal challenges against Nebraska’s two medical cannabis petitions.
In a five-page order Thursday morning, District Judge Susan Strong denied requests from John Kuehn (R), a former state senator and former State Board of Health member who brought the initial lawsuit, and Nebraska Secretary of State Bob Evnen (R) to amend their complaints.
Strong said the amendments would not affect the outcome of the lawsuit that she had already dismissed last week, and for which she had already anticipated the legal arguments.
The dismissal upheld the ballot certification of two measures from the Nebraskans for Medical Marijuana campaign to legalize and regulate the drug. Voters passed the two measures, and state constitutional officers certified those election results Monday, including Evnen and Attorney General Mike Hilgers (R), whose office defended Evnen in the Kuehn-led lawsuit.
The medical cannabis laws to legalize and regulate the drug are set to take effect by December 12.
Getting ready for appeal
Deputy Solicitor General Zach Viglianco, representing Evnen, told Strong on Tuesday that the state was not asking her to alter her judgment.
“It’s simply asking the court to allow for a modification of the pleading to conform to the evidence in order to properly preserve and prepare this case for the appellate court,” Viglianco said Tuesday.
Viglianco said he realized Strong’s dismissal last week wasn’t based on technicalities, and he acknowledged that the amendment wasn’t needed, though he argued it could be “wise” for appeal.
“We’re just setting up this record for appeal,” Viglianco said, telling Strong the deadline for an appeal is the end of the week.
‘Another bite at the apple’
Attorney Daniel Gutman, representing the ballot sponsors, said the requests were not simple and were instead a “form of error correction,” which was “obviously very frustrating.”
“They pushed and they pushed and they pushed for an impossible progression order, and they got it, and they made mistakes along the way,” Gutman said.
If the requests were granted, Gutman argued Tuesday, the case would have changed from whether there were enough petition signatures for ballot access to whether there was a “pervasiveness” of fraud or malfeasance, regardless of how many signatures were valid.
Gutman said the request had nothing to do with trial evidence and was “an attempt to get another bite at the apple and to fundamentally change the nature of the case on appeal.”
Strong already rejected arguments
Kuehn’s attorneys asked to clearly add “circulator malfeasance” to Kuehn’s case, a phrase that Strong said Thursday was never once used at trial.
The AG’s Office asked to add two arguments to Evnen’s complaint: that the entire list of signatures from another paid petition circulator, Jennifer Henning, should be thrown out and that it didn’t matter how many signatures were collected because of widespread, “pervasive” fraud.
Strong said Henning didn’t collect enough signatures to invalidate the petitions when combined with other signatures that Strong said lost their presumption of validity. She described the latter argument—rooted in a 2006 case from Oklahoma—as Evnen’s “numbers-optional theory.”
Strong had already rejected both arguments in her November 26 opinion.
Viglianco told Strong that it was not a “completely out-of-left-field theory” but agreed it was not presented to the court until closing arguments and post-trial briefs. He said that was because the extent of the alleged conduct wasn’t fully apparent until the trial began.
Strong said Thursday that the end-of-trial addition was “much too late.”
“It was not my intention to imply that anyone would wait until they rested at trial, gave closing arguments, filed post-trial briefs and a judgment was entered before filing to amend the pleadings,” Strong told the attorneys Tuesday. “That was not something that I was contemplating at that time.”
Strong again said the “Oklahoma claim” and the circulator fraud arguments were not enough.
“The Oklahoma claim is also futile because the Court found that the evidence did not show an established pattern of fraud,” Strong wrote Thursday. “Relatedly, many of the Secretary’s proposed changes simply do not conform to the evidence actually presented at trial.”
This story was first published by Nebraska Examiner.
Photo courtesy of Max Pixel.