Yesterday the Nebraska Supreme Court issued an opinion to remove our medical marijuana constitutional amendment from the ballot, with five judges ruling to kick our amendment off and two disagreeing and ruling to keep us on. We will remind readers that the Secretary of State also agreed our ballot language was “legally sufficient” and certified us to be on the ballot. Ballot language drafters, including attorneys who specialize in constitutional law, spent three months working hard to ensure that our language complied with all previous Supreme Court precedent and related cases regarding ballot initiatives in Nebraska. This decision by the Court will undermine the initiative petition process for years to come.
The opposition’s rationale, which the Court adopted, was based on the constitutional requirement that all proposed initiatives must be a “single subject.” The single subject rule is an important concept and protection to guard against voter confusion and logrolling (combining two separate and distinct issues into one in an attempt to get it passed). In the past, the Court has struck down proposals — such as a single petition that combined gambling with property tax relief — as a violation of the single subject rule, their rationale being that those are two distinct and separate issues so they must be distinct and separate petitions.
And yesterday, they chose to conclude that a petition with one singular purpose — to make access to medical marijuana legal — violated the single subject rule. Briefly we will walk through 1) why this ruling is incorrect and 2) why this is a dangerous precedent.
First, the dissenting opinion authored by Judge Papik succinctly lays out why the majority opinion erred in their reasoning. The single subject rule is simple — the initiative must contain only one subject. The medical marijuana initiative did just that — ensured that people had access to use, possess and produce marijuana if they had a serious medical condition.
The Court has always asked the question: is everything in the initiative naturally and necessarily connected to the single subject? In our initiative, we made it clear that the purpose was to provide access to medical marijuana — and in order to have access, you must have a right to possess it, someone to produce it, and have reasonable regulations surrounding it. Like other previously successful initiatives on the ballot, we provided details and limitations related to the subject of the initiative. For example, see the Medicaid expansion measure or the 2012 initiative to provide for the constitutional right to hunt, fish, and harvest wildlife (how many potential subjects did you count there?). Further, we added reasonable public safety limitations, such as not allowing driving under the influence, to the same single subject.
Judge Papik rightly noted in his dissenting opinion that “All of the details of the NMCCA [Medical Marijuana Initiative] relate to the same single subject — providing a right to individuals with serious medical conditions to use cannabis to alleviate those conditions.” He goes on to note that he agrees with the Secretary of State’s analysis, and that the majority of the Court was wrong in determining that giving private entities the right to produce cannabis was a separate subject, because, “The Secretary found there was a natural and necessary connection between the legalized production and sale of medical cannabis and the primary purpose of the NMCCA — individual use of medical cannabis by those with serious medical conditions.”
Here’s the bottom line: You cannot have a right to medical marijuana for medical purposes if you do not have access to a supply. There is a natural and necessary connection and thus a singular purpose, and this does not violate the single subject rule.
So what are the public policy implications? The Court has taken an already confusing and muddled single subject test and left Nebraska with no clear standard or test. We are left with an inference that if you do propose an initiative, it better be simple and broad and have no limitations, even if they are natural and necessary to the single subject.