close
close
darbo

Nebraska medical cannabis trial begins Tuesday with at least 16 potential witnesses • Nebraska Examiner

Posted on by Nargang
Nebraska medical cannabis trial begins Tuesday with at least 16 potential witnesses • Nebraska Examiner

LINCOLN — The anticipated high-stakes trial involving Nebraska’s two medical-cannabis ballot measures will begin as planned Tuesday, with at least 16 potential witnesses identified in court filings.

The trial will begin at 9 a.m. in Lancaster County District Court before Judge Susan Strong.

At a final preliminary hearing Monday, Strong ruled against a request by the Nebraska Attorney General’s Office to draw “adverse inferences” from four potential witnesses who invoked the Fifth Amendment during depositions.

The AG’s office is representing Nebraska Secretary of State Bob Evnen in the case.

Lancaster County District Judge Susan Strong. September 20, 2024. (Zach Wendling/Nebraska Examiner)

Strong said state law precludes inferring a “privilege claim,” such as the right against self-incrimination, and said the facts of the ballot measure case mean “the court must proceed with great caution.”

“As we all continue to quote, the (Nebraska) Supreme Court has said that the right of the people to bring an initiative is ‘precious to the people, and one which the courts are zealous to preserve in the utmost tenable spirit, as and letters”. ‘” Strong said, referring to a Sept. 13 state Supreme Court decision.

The list of potential witnesses includes three county election commissioners: Todd Wiltgen (Lancaster County), Tracy Overstreet (Hall County) and Dee Ann Nice (Saunders County).

John Kuehn, a former state senator and former member of the State Board of Health, filed the original lawsuit on Sept. 12 to invalidate the petitions, arguing that supporters did not collect enough valid signatures to get on the Nov. 5 ballot.

Heartwell’s John Kuehn, left, looks to his Austin attorney, Anne Marie Mackin, at the start of formal court proceedings in Lancaster County District Court that could determine the fate of two 2024 ballot measures regarding medical cannabis. September 20, 2024. (Zach Wendling/Nebraska Examiner)

The AG’s office is seeking to invalidate tens of thousands of signatures for alleged “misconduct” by notaries or “fraud” by circulators for about a dozen campaign volunteers.

Strong agreed to a request from the Attorney General’s Office to sequester or sequester witnesses during the trial. It means they cannot publicly share their testimony or discuss the case with each other. At least one witness has been released from her subpoena to testify due to illness, but she must appear at a later date, as set by the court.

Regardless of the process, the measures remain on the ballotand the final outcome of the case may not be determined until Election Day on November 5.

Civil court is for “finding the facts”

Deputy Attorney General Zach Viglianco argued that there can be no criminal charges in civil proceedings because the Fifth Amendment applies differently than in criminal cases.

“The purpose of civil proceedings is to discover the truth, to engage in the fact-finding and truth-discovery process, and Fifth Amendment invocations interfere with that truth-seeking,” Viglianco said Monday.

Nebraska Attorney General Mike Hilgers. June 30, 2023. (Zach Wendling/Nebraska Examiner)

A separate criminal investigation is ongoing, although there is a “bulwark” between the criminal and civil divisions of the Attorney General’s Office, lawyers argued. Viglianco said the witnesses who invoked the Fifth Amendment hinder the search for the truth.

“It is not the fact that the witnesses invoked the fifth that is the problem,” he continued. “Inability to obtain the information is excluded here, which is commented on, and therefore there is a distinction.”

Attorney Andrew La Grone, a former state senator representing Kuehn in the case, echoed Viglianco’s concerns and said three of the four witnesses who are notaries for the ballot sponsors have “aligned interests” in seeing the measure go through before the polls.

Fifth Amendment Difficulties

Attorney George Dungan, a Lincoln state senator who represents the three notaries, told Strong that his concern is that “the ongoing and ambiguous nature of the potential criminal charges that come forward makes it virtually impossible to adequately prepare and counsel a witness with as to what might or might not be incriminating.”

State Senator George Dungan of Lincoln. July 29, 2024. (Zach Wendling/Nebraska Examiner)

He pointed out that the criminal laws being used against at least two men — a petition circulator and a notary public — who have been charged criminally in Hall County are “relatively unprecedented, if not completely unprecedented.”

Dungan said it was unclear if additional charges would be forthcoming.

“The idea that a witness is going to be put on the stand and forced to make those decisions for themselves as to whether or not they should answer a question or not, given the ambiguity of criminal charges, I think is problematic,” he Dungan said.

Viglianco said his lawyers “do not intend to reprimand anyone” and “are not trying to attack.”

Attorney Daniel Gutman is one of three attorneys representing state Sen. Anna Wishart, Crista Eggers and former state Sen. Adam Morfeld in a lawsuit against a ballot measure the three are sponsoring to legalize and regulate medical cannabis in Nebraska. September 20, 2024. (Zach Wendling/Nebraska Examiner)

Attorney Daniel Gutman, who defended the ballot sponsors behind the Nebraskans for Medical Marijuana campaign, said Evnen certified the measures on Sept. 13 and then joined “a state apparatus that waged war against those certifications.”

Gutman accused Evnen’s lawyers from llooking for something to back up allegations of “impairment,” leading to fear from potential witnesses in the case, some of whom face possible criminal charges.

“I don’t think anyone should be surprised that people are extremely scared,” Gutman said. “This is an extremely difficult situation that people are in.”

“Pretty unprecedented territory”

He pointed to the deposition last week of Crista Eggers, the statewide campaign director for the ballot measures, who invoked the Fifth Amendment several times during the 13-hour deposition held over two days. Gutman said attorneys used Eggers’ statement to “question her about everything under the sun.” leading to multiple Fifth Amendment invocations.

Secretary of State Bob Evnen listens to testimony about the May 2024 primary election as part of the State Board of canvassers on June 10, 2024. (Zach Wendling/Nebraska Examiner)

Viglianco, speaking of all the witnesses, emphasized that the case is not a criminal one and that it is not appropriate to make a “blanket assertion” of the Fifth Amendment to avoid taking the stand.

“For some color, there were questions about, ‘Do you know your name?’ Is this your signature on the verification form you signed? Did you live with your husband?'” Viglianco told Strong. “I mean, a lot, a lot of things that have the most tenuous, if any, connection to criminality.”

Strong said the AG’s Office can still call witnesses who invoked the Fifth Amendment to the stand. Attorneys could also enter transcripts of those witness statements.

Gutman anticipated that at trial, the ballot sponsors plan to show that the case is “really about the numbers” to find about 3,500 signatures to disqualify the effort. He said an adverse finding would not hurt the witnesses, but the voters.

“I think we’re going into pretty unprecedented territory here,” Gutman said.

The trial will begin on Tuesday and continue on Thursday and Friday if necessary.

YOU MAKE OUR WORK POSSIBLE.


GET MORNING HEADLINES.