Nebraska Supreme Court tosses medical cannabis federal preemption case, for now

LINCOLN — The Nebraska Supreme Court on Friday decided a longtime medical cannabis opponent will not have another day in court to try to overturn the state’s voter-approved medical cannabis laws, at least for now.

Chief Justice Jeffrey Funke, in a unanimous 29-page ruling, agreed with a lower court judge’s decision that former state Sen. John Kuehn of Heartwell did not have standing to challenge Nebraska’s medical cannabis laws.

Kuehn argues that such state laws, including Nebraska’s voter-enacted legalization of medical cannabis, are “preempted” by federal law under the U.S. Constitution’s supremacy clause defining marijuana as a more dangerous drug that states are precluded from regulating.

“We conclude that Kuehn did not have either taxpayer standing or standing for a matter of great public concern to challenge the constitutionality of the acts,” Funke wrote. “We therefore affirm the district court’s order dismissing Kuehn’s operative complaint without prejudice.”

“Without prejudice” means Kuehn could bring a similar case in the future if circumstances change. For instance, since June 2025, the Nebraska Legislature has appropriated more funds to the Nebraska Medical Cannabis Commission and passed new legislation around cannabis.

What is ‘standing’?

For a case to proceed, a litigant must prove they’ve suffered an “injury in fact” by the time a case is filed or later amended. Kuehn filed his case in December 2024 and last amended it June 2025. Kuehn conceded he had not yet suffered the direct injury but sought to use exceptions.

“Standing refers to whether a party had, at the commencement of the litigation, a personal stake in the outcome of the litigation that would warrant a court’s exercise of its subject matter jurisdiction and remedial powers on that party’s behalf,” Funke explained in the opinion.

Lancaster County District Judge Susan Strong dismissed Kuehn’s case on June 26, 2025. She also presided over and ruled against a preelection challenge from Kuehn, filed in September 2024. 

The Supreme Court last week affirmed Strong’s ruling on the validity of Nebraska’s medical cannabis laws, also in a unanimous ruling from Funke.

Shifting federal guidance

During oral arguments in April in Kuehn’s preemption appeal, no attorneys or justices asked about shifting federal guidelines on marijuana. U.S. Attorney General Todd Blanche federally downgraded state-licensed medical cannabis to a Schedule III drug in April, down from a Schedule I drug. 

Schedule I drugs, such as heroin, LSD, ecstasy and peyote, are drugs the federal government has classified as having a high likelihood of abuse and no currently accepted medical value. Schedule III drugs are defined as those with moderate to low potential for physical and psychological dependence, such as Tylenol with codeine, ketamine and testosterone.

Nebraska’s Medical Cannabis Commission is working toward implementing a state-licensed program and has licensed four cultivators. Nebraska Gov. Jim Pillen and Attorney General Mike Hilgers signed off on a first set of regulations for the commission this summer.

The commission is rewriting its regulations to add fees before moving to license product manufacturers or dispensaries. The Legislature authorized the commission to do so this year.

Access to legally purchase medicine in Nebraska is still months, if not at least a year, away.

Standing exceptions

Kuehn tried to use two “narrow” exceptions to the standing rule: that he should be able to sue to try to prevent an “illegal expenditure” of public funds (taxpayer standing) or because the laws constitute a “matter of great public concern” (“great public concern standing”).

“It is not enough to wait for the United States government to one day come to Nebraska and challenge these acts,” Kuehn’s attorney Eddie Greim of Missouri had told the justices. “Instead, Nebraska’s courts should be open to Nebraskans who want to hold their Nebraska state government to its constitutional limitations.”

Funke wrote that other jurisdictions might find Kuehn had taxpayer standing, such as in other states, but Funke said doing so for Nebraska would be “inconsistent with our jurisprudence.” Funke also wrote that Kuehn’s claims did not present the “rare” circumstances to justify an exception for great public concern.

Unlike in other taxpayer standing cases that try to block public spending alone, Kuehn sought to go further and declare the Nebraska medical cannabis laws unconstitutional. 

Had the case proceeded and later returned to the Supreme Court, it would take five justices to declare the laws unconstitutional. For standing, Kuehn needed a simple majority, or four judges.

AG’s Office: Others could sue

Zachary Pohlman, the state deputy solicitor general defending five state officials from Kuehn’s lawsuit, had argued that at least five parties would be better suited to sue than Kuehn, such as the federal government, Hilgers, a property owner, a prospective medical cannabis user or a criminal defendant charged with illegally possessing cannabis asserting the laws as a defense.

The Supreme Court ruled that its finding whether Kuehn lacked standing was not related to whether others could sue in Kuehn’s place.

Pillen was named in the suit, as were Secretary of State Bob Evnen, Department of Health and Human Services CEO Steve Corsi, former State Treasurer Tom Briese and Tax Commissioner Jim Kamm. 

Kuehn had also sued the 2024 ballot sponsors behind the voter-approved laws and current and former members of the Medical Cannabis Commission.

The Nebraska Attorney General’s Office had threatened to sue the state Medical Cannabis Commission if it issued licenses. But no such challenge materialized when the commission licensed the first cultivators in October 2025. No other state lawsuits have been filed at this time.

Nebraska Supreme Court upholds validity of state medical cannabis laws

Hilgers’ office has joined a federal lawsuit seeking to challenge the DOJ’s rescheduling of marijuana, which President Donald Trump is calling for.

In an unsigned statement Friday, Nebraskans for Medical Marijuana said another “desperate lawsuit, designed to erase the will of Nebraska voters and destroy medical cannabis, has failed.”

“For nearly two years, people with powerful political connections and deep pockets have thrown everything they can at us,” the statement said. “Lawsuits, accusations, obstruction and delay, because they refuse to accept what 71% of Nebraskans overwhelmingly decided.”

The group, which led the 2024 effort to legalize and regulate medical cannabis, said no matter the money, influence or political power behind the “next attack,” it won’t erase that vote.

The next Medical Cannabis Commission meeting is Monday.