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

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

LINCOLN — An expected high-stakes trial involving two medical cannabis ballot measures in Nebraska will begin as scheduled Tuesday, with court documents listing at least 16 potential witnesses.

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

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

The Attorney General’s Office is representing Nebraska Secretary of State Bob Evnen in this case.

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

Strong said state law does not allow inferences to be drawn from a “claim of privilege” such as the right against self-incrimination, and said the facts of the case involving ballot measures mean “the court must proceed very carefully.”

“As we all keep quoting, the (Nebraska) Supreme Court has stated that the right of the people to take initiative “is precious to the people and a right which the courts have zealously preserved to the fullest extent in both letter and spirit.” Strong said, referring to the state Supreme Court’s Sept. 13 decision.

The list of potential witnesses includes three county election officials: 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 Sept. 12 seeking to invalidate the petitions, arguing that their supporters did not collect enough valid signatures to access the Nov. 5 ballot.

John Kuehn of Hartwell, left, looks at his Austin lawyer Anne Marie McKean at the start of formal proceedings in Lancaster County Circuit Court that could determine the fate of two 2024 medical cannabis ballot measures. September 20, 2024 (Zach Wendling/Nebraska Examiner)

The attorney general’s office is seeking to invalidate tens of thousands of signatures from about a dozen campaign volunteers on charges of “malfeasance” by notaries or “fraud” by distributors.

Strong agreed with the Prosecutor General’s Office’s request to isolate witnesses during the trial. This means they cannot publicly share their testimony or discuss the case with each other. At least one witness was excused from testifying due to illness, but must appear at a later date to be determined by the court.

Regardless of the court, the measures remain on the ballot and the final outcome of the case may not be determined by Election Day on Nov. 5.

Civil court is intended to “find the facts”

Deputy Attorney General Zach Villanco said there could be no charge in civil proceedings because the Fifth Amendment applies differently than in criminal cases.

“The purpose of civil litigation is to discover the truth, to engage in the process of fact-finding and truth-seeking, and invoking the Fifth Amendment interferes with that search for truth,” Villanco said Monday.

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

A separate criminal investigation is currently underway, although there is a “wall of protection” between the criminal and civil divisions of the Attorney General’s Office, lawyers say. Villanco said witnesses invoking the Fifth Amendment were obstructing the truth.

“The problem is not that the witnesses turned to Five,” he continued. “It is the inability to obtain information that is prohibited here, which is commented on, and therefore there is a difference.”

Attorney Andrew LaGrone, a former state senator who represented Kuehn in the case, echoed Villanco’s concerns and said three of the four witnesses, who are notaries of the ballot sponsors, have “converging interests” in getting the measure passed at the ballot box.

Difficulties of the Fifth Amendment

Attorney George Dungan, a Lincoln state senator who represents the three notaries, told Strong that he was concerned that “the ongoing, ambiguous nature of the possible criminal charges that are pending makes it virtually impossible to properly prepare and counsel a witness as to whether which may or may not be incriminating.”

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

He pointed out that the criminal laws applied to at least two men — a petition circulator and a notary public — who faced criminal charges in Hall County are “relatively unprecedented, if not entirely unprecedented.”

Dungan said it was unclear whether more charges would be filed.

“The idea that a witness would be put on trial and forced to make their own decisions as to whether they should or should not answer a question, given the ambiguity of criminal charges, I think that’s problematic,” Dungan said.

Villanco said his lawyers “do not intend to berate anyone” and are “not trying to attack.”

Attorney Daniel Gutman is one of three attorneys representing State Sen. Anna Wishart, Krista 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 is defending ballot sponsors behind the Nebraskans for Medical Marijuana campaign, said Evnen certified the measures on Sept. 13 and then later joined “the government apparatus that waged war on these certifications.”

Gutman batterySED lawyers Evnena ltrying to do anything to substantiate the “malfeasance” charges, which has caused fear among potential witnesses in the case, some of whom could face 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 find themselves in.”

“Some completely unprecedented territory”

He pointed to last week’s deposition of Krista Eggers, the campaign manager for the statewide ballot measure, who invoked the Fifth Amendment several times during her 13 hours of testimony spanning more than two days. Gutman said attorneys used Eggers’ testimony to “ask her everything.” leading to multiple uses of the Fifth Amendment.

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

Villanco, speaking about all the witnesses, stressed that the case is not criminal and it is inappropriate to make an “unqualified assertion” of the Fifth Amendment in order to avoid sitting in court.

“Because of some color, there were questions like: “Do you know your name?” Is this your signature on the confirmation form you signed? Did you live with your husband? Villanco told Strong. “I mean a lot of things that have the weakest connection, if any connection at all, to the prosecution.”

Strong said the Attorney General’s Office could still subpoena witnesses who invoked the Fifth Amendment. Lawyers could also introduce transcripts of these witnesses’ testimony into evidence.

Gutman said that at trial, the ballot sponsors intend to argue that it’s “really about the numbers” to find about 3,500 signatures to disqualify the effort. He said an unfavorable finding would hurt voters, not witnesses.

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

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

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