In another victory for medical marijuana, Nebraska Supreme Court affirms dismissal of federal preemption lawsuit

The Nebraska Supreme Court on Friday affirmed a lower court’s decision to dismiss a lawsuit arguing that the legalization of medical marijuana in Nebraska is preempted by federal law.

In a unanimous opinion, the court found that former State Sen. John Kuehn lacked standing to bring the lawsuit. Kuehn is a longtime marijuana opponent who brought multiple legal challenges to the 2024 ballot measures that legalized medical marijuana.

Friday’s decision was the second victory for medical marijuana at the state’s high court this month. Last week, the court ruled that a lower court judge properly dismissed another lawsuit filed by Kuehn in which he alleged widespread fraud in the petition process.

Kuehn filed the preemption lawsuit in December 2024, after voters already approved the two medical marijuana ballot measures. He sued state officials, members of the Nebraska Medical Cannabis Commission and sponsors of the ballot initiative.

Because marijuana is illegal under federal law, Kuehn argued, legalizing it at the state level and using state funds for regulatory purposes is a violation of the Supremacy Clause of the U.S. Constitution. That clause says federal law supersedes conflicting state laws.

A person bringing a civil lawsuit must prove that they have standing by demonstrating a personal stake in the outcome. That usually means establishing that the person suffered an injury in fact – a concrete, non-hypothetical harm.

Kuehn conceded in this case that he did not suffer an injury in fact. He instead staked his claim to two narrow exceptions to the injury in fact standard: taxpayer standing, which allows taxpayers to challenge illegal expenditures of public funds, and standing for a matter of great public concern, which is granted very rarely in cases where a plaintiff does not have standing but the outcome is of great interest to the public.

A district court judge ruled last year that Kuehn fell short on both types of standing, and the Nebraska Supreme Court agreed. Both courts said there may be people or entities that do have standing in the case, but Kuehn is not one of them.

In a statement, Nebraskans for Medical Marijuana celebrated the ruling and said the lawsuit was “designed to erase the will of Nebraska voters and destroy medical cannabis.”

“No matter how much money, influence, or political power they put behind the next attack, they will never erase what the people of Nebraska decided, and we will not stop fighting until it is respected,” the statement said.

Lawsuits alleging federal preemption of marijuana legalization have been brought in multiple other states. A New Jersey appellate court ruled in 2024 that the Controlled Substances Act, which makes marijuana illegal at the federal level, is able to coexist with state laws regulating recreational marijuana. In 2016, an appellate court in Arizona came to the same conclusion in a similar lawsuit over medical marijuana.

In 2014, Nebraska and Oklahoma filed a federal preemption lawsuit directly with the U.S. Supreme Court against Colorado after the state legalized recreational marijuana. The Supreme Court declined to hear that case.