Eight things you need to know about marijuana in Nebraska for 2016

Senator Garrett speaks in the capitol rotunda last spring.
December 22, 2015 - 6:45am

The marijuana debate found itself in courtrooms, the capitol and police cruisers all across Nebraska in 2015. Expect even more pot news next year. Here's eight things you need to know.

What is the status of Nebraska's lawsuit opposing marijuana sales in Colorado?


Nebraska's Marijuana Lawsuit

Recently two leading newspapers took opposite sides on Nebraska's challenge against aspects of Colorado's legalization of pot. We think they deserve your attention.

Click to read

"The Case Against Colorado"

Click to read

"Nebraska's Lawsuit is Doomed"


The lawsuit was filed against the State of Colorado in the U.S. Supreme Court by the attorneys general of Nebraska and Oklahoma. They argued Colorado, by legalizing the business of selling marijuana for recreational use, was in conflict with federal drug laws. 

By legalizing pot, the argument goes, Colorado undercut the ability of its neighbors to enforce marijuana laws, and that in turn puts stress on the criminal justice system with some significant costs.

Last week there was a major development, courtesy of the United States Department of Justice.

The Office of the Solicitor General, at the request of the Supreme Court, offered its opinion of the legal merits of the Nebraska case. In a long-awaited brief filed with the court, U.S. Solicitor General Donald Verrilli Jr. sided with Colorado.

These arguments may carry substantial weight, but it is still up to the Supreme Court itself to decide if they will hear the case. There's no firm deadline for the justices to announce whether they will take the case, but nothing will happen until after Nebraska files its reply to the solicitor general.

What are the solicitor general’s arguments for throwing out the Nebraska/Oklahoma lawsuit?

First and foremost, Verrilli argues the Nebraska lawsuit filed late in 2014 claims going straight to the U.S. Supreme Court and bypassing lower courts is the wrong way to go. Nebraska had argued this was a case of “original jurisdiction,” a legal approach used to settle disputes between state governments. It’s most commonly used for things like disagreements over water rights or regulations that allow pollution to creep across a state border.

The solicitor general wrote that disagreeing over a law enforcement issue doesn’t meet that definition.

“The motion... to file a bill of complaint should be denied because this is not an appropriate case for the exercise of this Court’s original jurisdiction,” the brief said. “Entertaining the type of dispute at issue here…would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.”

The other problem, according to the solicitor general, is the Nebraska/Oklahoma claim that Colorado’s liberal drug laws “increase the likelihood” people bring pot into neighboring state where it’s illegal. That’s a crime.

In other words, the Department of Justice argues people deciding to move a product used legally in one state into a state where it is illegal is not the fault of the state government where it’s sold. Colorado does not require or facilitate people use it illegally in another jurisdiction.

The example used, and raised by some conservatives who do not like the Nebraska case against Colorado, compares selling legal marijuana to legal guns. If an individual buys an automatic weapon legally in one state but uses it illegally in another state, there is no legal claim that it’s the fault of the state government with more liberal gun laws.

Will Nebraska proceed with the lawsuit?

Yes. According to Nebraska Attorney General Doug Peterson, the state will proceed with its request for the Supreme Court to hear arguments in the case. He issued a prepared statement after the Justice Department brief was filed saying “Nebraska remains undeterred in our resolve. ”

He added the opinion in the brief was not a surprise since in his opinion "the federal government, specifically the Department of Justice, has been providing mixed messages on the enactment of drug laws in our nation."

Peterson told reporters a few days prior to the opinion he felt a case at the federal level was essential to force the federal government to clarify its position on the legality of medical and recreational marijuana sales.  

“I think we are on a critical mass on a national level to address this issue,” Peterson said.  “I think the Supreme Court has to say can one state go ahead and ignore a drug that’s found in Schedule I of the Controlled Substances Act and go ahead and legalize it?"

Even if the Solicitor General’s opinion is damaging, Peterson will submit a brief in opposition to the government’s stance in the hopes of convincing the Supreme Court to hear oral arguments over the merits of the arguments.

What is the status of legalization of medical marijuana in Nebraska?

A proposal to legalize medical cannabis is scheduled to return to the state legislature in 2016 after being withdrawn from debate in May 2015.

Titled the Cannabis Compassion and Care Act, LB 643, it made it farther through the legislative process in this year’s session than many had expected. Sen. Tommy Garrett of Bellevue managed to get the bill out of the Judiciary Committee, advancing it for debate by the full legislature. The bill allows limited sale by prescription of cannabis oils.

After a number of amendments and a lot of questions about details for getting a program set up, Garrett asked the Legislature to table the bill. The tactic allows supporters to bring the bill back to the full Legislature without routing if first through another round of committee hearings.

The thinking of supporters at the time was that it was better to return the bill in 2016, allowing time to answer questions, possibly refine the language and solidify support.

Will anything be different with the proposal in this session?

Garrett said he does not expect significant amendments to change the approach taken to cannabis prescriptions in his proposal.

There is already a strong effort to distance the initiative from Colorado’s approach to medical marijuana. Early regulation was underfunded and availability is too broad, in the view of its critics.

Garrett agreed the Colorado model would not be appropriate for Nebraska.

“We are not Colorado,” Garrett told reporters in Dakota City early in December. “We are not going to let it get out of control. This is a sane, safe law.”

The structure in the current Nebraska proposal closely aligns with what was put in place by Minnesota in the past year. The only legal form is cannabis oil regulated by the state. Access is so strict that only a few hundred people with serious illnesses have received prescriptions.

“We went up to Minnesota to visit with the legislators and the government people who administer the program,” Garrett said. ”The program (in Minnesota) is going great”

How substantial is opposition to the medical marijuana proposal?

Two of Sen. Garrett's fellow Republicans, Gov. Pete Ricketts and Attorney General Peterson, remain in opposition. Both made it clear they will pull out all the stops to oppose medical marijuana. They believe legalizing any medical use inevitably leads to recreational pot and that it’s not proven to be effective. (CLICK HERE to read the Nebraska Attorney General's statement in support of the Colorado lawsuit)

Peterson recently brought in one of Colorado’s leading opponents to medical marijuana to brief state senators on the perceived risks to legalizing even limited access for medical purposes. 

“I think it’s a tragedy to suggest to families that this will work, and simply give them the oils and say,  'Good luck,'” Peterson told reporters. “You can’t base this public policy purely on an emotional appeal. You have to do it on good medical science on whether this drug will truly help.”

That characterization of those advocating for access to cannabis brought a strong response from Garrett.

“I really take exception with what he (Peterson) does in trying to demonize this,” Garrett said. “These folks are not stoners. They aren’t trying to get high. These are people who are sick and ill. I get so infuriated when they make it a law enforcement issue. This is medicine.”

There’s been talk of a petition drive. Will legalizing medical marijuana be a ballot issue in November 2016?

A petition drive will begin immediately if LB 643 or similar legislation doesn’t pass the Legislature. 

One petition campaign to legalize medical marijuana is already registered with the secretary of state by the Nebraska chapter of the National Organization to Reform Marijuana Laws (NORML). (CLICK HERE to read the group's filing and petition) Another group, Nebraska Families for Medical Cannabis, is considering its own campaign. Nothing will happen in the short term.

The two groups, with different approaches to the issue, agreed to wait to begin circulating petitions until after the Legislature votes on the issue this session. Representatives of both groups told NET News they don’t want discussion of a petition drive to get in the way of promoting their cause before the Legislature. Getting a bill passed would be a more efficient and speedier route to advance their cause.

What has been the trend in marijuana arrests in Nebraska?

Research by the Nebraska Center for Justice Research shows counties near the Colorado border “experienced significant growth in marijuana-related arrests and jail admissions after the expansion of the medical marijuana program in Colorado.” The impact for the rest of the state has not been as great.

Researchers Jared Ellison and Ryan Spohn had their findings published this year in the Criminal Justice Police Review.

The study did not support predictions that counties the entire length of the I-80 corridor would see increased marijuana arrests. While there were increased rates of arrests for possession of marijuana, research found “no evidence to suggest that these counties experienced higher relative rates of sale arrests or jail admissions from 2009 to 2013.” The authors found evidence the I-80 counties might not have had as much of an increase “due to the heavy presence of state patrol along the I-80 corridor.”

Arrest numbers for the first half of 2015 were not available from the Nebraska Crime Commission, but it appears the upward trend in marijuana arrests, both large and small continues, to climb in the state.

In 2014, the last data available from the commission, Nebraska law enforcement made 7,329 felony arrests for possession of all types of illegal drugs. More than half of those, 5,081, were for marijuana. For the more serious charge of selling, manufacturing or growing, there were 912 arrests by Nebraska state and local police. Marijuana accounted for 391 of those busts, or 41 percent.



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