Nebraska lawmakers kill measure to expand medical marijuana regulations

Both measures — Initiatives 437 and 438 — passed by wide majorities at the ballot box, but the effort to flesh out the details and install guardrails in state law was thwarted by a filibuster in the Legislature on Tuesday.

State lawmakers blocked a bill (LB677) from Sen. Ben Hansen of Blair from advancing to the second round of consideration. Just 24 senators voted to invoke cloture, falling well short of the 33 votes needed.

With the vote, the proposal to implement what seven out of 10 voters supported at last November’s general election is done for the year.

Hansen, following the vote, said he was disappointed that lawmakers failed to take action to put in place a system that allowed patients to obtain medical cannabis in a systematic, legal way.

But the veteran lawmaker, a Republican in the officially nonpartisan Legislature, said he was most disappointed that the families waiting for their elected leaders to act will have to keep waiting.

“I knew it was going to be a hard hill to climb,” Hansen said. “I’m bummed for the families this really could have mattered to.”

Crista Eggers, the executive director of Nebraskans for Medical Marijuana, said advocates “had a lot of hope and faith” in state lawmakers to enact what she described as “good, safe regulations” that supported patient access.

Over the course of the eight-hour debate, it became clear the regulations sought by medical marijuana advocates through Initiative 438 — which passed with 65% support — would not cross the finish line on Tuesday.

“I feel like it’s an absolute failure,” Eggers said. “It’s extremely disappointing.”

How they voted

Just 23 senators voted to invoke cloture on a bill (LB677) that would have directed the Nebraska Medical Cannabis Commission to write rules and regulations for medical marijuana. The commission was created through the passage of Initiative 438 by Nebraska voters last fall.

Voting yes (23): Bostar, Brandt, J. Cavanaugh, M. Cavanaugh, Clouse, Conrad, DeBoer, Dorn, Dungan, Fredrickson, Guereca, Hansen, Holdcroft, Hughes, Hunt, Juarez, McKinney, Meyer, Prokop, Quick, Raybould, Rountree, Wordekemper.

Voting no (22): Andersen, Armendariz, Ballard, Clements, DeKay, Dover, Hallstrom, Hardin, Ibach, Jacobson, Kauth, Lippincott, Lonowski, McKeon, Moser, Murman, Sanders, Sorrentino, Storer, Storm, Strommen, von Gillern.

Present, not voting (3): Arch, Bosn, Riepe.

Excused, no voting (1): Spivey.

What the bill did

Hansen’s bill, which largely reflected similar efforts brought in past legislative sessions, would have allowed doctors, physician assistants or certified nurse practitioners licensed and practicing in Nebraska to recommend cannabis to patients with qualifying medical conditions.

Patients who had been recommended cannabis could apply for and pay for a medical card allowing them to purchase up to 5 ounces of marijuana from a licensed dispensary, including up to 2 ounces of cannabis plant products.

Caregivers over the age of 21 would have also been required to register with the commission and carry their own registration card in order to possess a maximum of 5 ounces of cannabis.

The bill would not have allowed patients to smoke marijuana — which was allowed under the ballot initiative — but did allow for patients to use a vaporizer or nebulizer to inhale cannabis.

Much of LB677 was focused on creating a regulatory framework for businesses that sell medical cannabis to Nebraska patients.

The bill allowed for five vertical licenses, allowing businesses to control multiple parts of the supply chain, as well as 30 individual licenses for medical cannabis businesses to operate in the state.

No more than 30 dispensaries would be allowed across Nebraska, with each congressional district limited to 10 businesses. Dispensaries would have charged a 5.5% sales tax on sales of cannabis, with the revenue being directed into property tax relief.

Dispensaries would have been required to pay $100,000 for a vertical license or $25,000 for an individual license under LB677. Those businesses also would have been required to join the “seed to sale” tracking system through the Prescription Monitoring Drug Program. 

The licensing and regulation of the medical cannabis industry would be under the purview of the Liquor Control Commission, who would serve in an ex officio capacity, as well as two additional members to be appointed by Gov. Jim Pillen.

Eyes on commission

The Nebraska Medical Cannabis Commission created through Initiative 438 was the focus of much of Tuesday’s debate, which came on Day 82 of the 90-day session.

Last week, after LB677 was set for debate, Pillen announced he intended to designate executive branch staff members and resources to allow the commission to begin its work later this year.

The governor tapped the Policy Research Office, which is responsible for lobbying for legislation backed by Pillen, and the Department of Administrative Services to ensure the commission drafted regulations and began issuing licenses to dispensaries later this year.

The governor also made his two appointments to the commission: Dr. Monica Oldenburg of Lincoln, an anesthesiologist, and Lorelle Mueting of Gretna, a prevention director at Heartland Family Service.

Both Oldenburg and Mueting will be subject to a confirmation hearing before the General Affairs Committee scheduled to begin at 2 p.m. on Thursday afternoon.

During floor debate, Hansen said both appointees were “astonishing anti-marijuana” advocates who have repeatedly testified against legalization and regulation efforts over the last few years.

Eggers, in the Rotunda after the debate, likened Pillen’s choices to “putting an arsonist in charge of the fire department.”

But several lawmakers said they preferred seating all five members of the medical cannabis commission — Oldenburg and Mueting included — as soon as possible in order to begin writing rules and regulations this summer.

Those senators said that was all the language of the initiative asked them to do.

Sen. Jared Storm of David City, who led the filibuster against LB677 on Tuesday, said the regulatory power to control possession, manufacture, distribution and delivery “is vested exclusively in the commission.”

“It doesn’t say in the Legislature, it says in the commission,” Storm said. “The sole role of the Legislature in the initiative language is the confirmation of the governor’s appointments to the medical cannabis commission.”

Supporters of LB677, including Omaha Sen. John Cavanaugh, said Nebraskans who supported medical marijuana legalization supported it with the expectation that the Legislature would take action.

The Legislature routinely passes laws informing various state boards and commissions of what rules to write and enforce, he said.

“This is a bill supported by the folks who brought the ballot initiative,” Cavanaugh said. “They want more guardrails and structure to the regulatory system.”

Lincoln Sen. George Dungan reminded lawmakers that it was currently legal to possess up to 5 ounces of cannabis with a doctor’s prescription, but that there was no framework for those patients to legally obtain marijuana in Nebraska.

Enacting a law allowing them to do so would clarify the matter for patients, caregivers, doctors and law enforcement, Dungan said.

Voters’ intent cited

Other senators, all registered Republicans, said they were following the directions given to them by voters in last year’s election, however, flipping the script on recent battles on the floor over other voter-passed initiatives.

In recent weeks, lawmakers supporting measures to limit which workers qualified for paid sick leave (LB415) and to amend the minimum wage increases passed by voters (LB258) argued Nebraskans were not aware of what they were voting for or that they hadn’t thought through the unintended consequences created by the initiative.

During the debate over LB677, however, senators who stood in opposition to the bill said Nebraskans were fully aware that they were voting to empower a commission created by Initiative 438 to develop the rules and regulations around medical cannabis — not the Legislature.

“You do have to ask yourself why we have so much pushback,” said Sen. Tanya Storer of Whitman. “We’ve heard over and over again how abhorrent it is that this body would want to amend (Initiative) 434 (the paid sick leave law) because the people knew what they were voting for.”

Sen. Mike Moser of Columbus said Initiative 438’s object statement did not tell voters the Legislature would be the one to make rules for how cannabis is distributed and regulated.

“The object statement of the ballot question says there is going to be a Nebraska Medical Cannabis Commission to regulate such entities,” he said. “I think (LB677) is an attempt to embellish what people voted for.”

Hansen said the Legislature was shirking its law-writing responsibilities.

“For us to give up our duties as representatives of the people who voted for this and push it off onto a commission which we have never done before in the history of Nebraska,” Hansen said, “to put in all the rules and regulations they say they want I think is irresponsible on our part.”

What comes next

The conclusion of a legal challenge that began as Nebraskans for Medical Marijuana turned in their petitions to Secretary of State Bob Evnen’s office last fall also hung over Tuesday’s debate.

Opponents to LB677 said they preferred to wait on any legislation until Attorney General Mike Hilger’s appeal before the Nebraska Supreme Court is decided later this year.

The lawsuit, filed by former state Sen. John Kuehn of Heartwell, a staunch opponent of marijuana legalization, alleged signatures were obtained fraudulently. Hilgers’ office later indicated they believed tens of thousands of signatures should be thrown out.

A Lancaster County District Court judge rejected those challenges, however, ruling after the Nov. 5 election that there was no evidence to show widespread fraud or malfeasance on behalf of circulators for the medical marijuana petitions.

Sen. Mike Jacobson of North Platte said the Legislature shouldn’t pass a law that would render Hilgers’ appeal moot before justices can render a decision.

Lincoln Sen. Danielle Conrad said Hilgers was using the power of his office to stop an issue he opposes personally, despite an overwhelming majority of voters supporting it. 

“This whole discussion is divorced from reality,” Conrad said. “Families worked in good faith to try and put a restrictive medical marijuana system on the books and were denied year after year after year.”

That led to the ballot initiative, which has felt the full weight of the attorney general’s office, she said, adding the Legislature had already passed a bill — with 48 votes — to affirm some of the language of the petitions in state statute.

Following the vote, Eggers said medical cannabis advocates would “continue to show up because this is important to them.” While medical marijuana is legal, Eggers said they would continue to fight for safe access.

“I don’t believe the people will let it go away,” she said.