State ex rel. Wagner v. Evnen

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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE EX REL. WAGNER v. EVNEN
Cite as 307 Neb. 142
State of Nebraska ex rel. Terry Wagner, relator,
v. Robert B. Evnen, Secretary of State of the
State of Nebraska, respondent, and Nebraskans
for Sensible Marijuana Laws, also known as
Nebraskans for Medical Marijuana,
et al., intervenors.
___ N.W.2d ___
Filed September 10, 2020. No. S-20-623.
1. Constitutional Law: Justiciable Issues: Appeal and Error. Questions
of justiciability and of constitutional interpretation that do not involve
factual dispute are questions of law.
2. Appeal and Error. An appellate court reviews questions of law de
novo, drawing independent conclusions irrespective of any decision
made below.
3. Mandamus: Words and Phrases. Mandamus is a law action and repre-
sents an extraordinary remedy, not a writ of right.
4. Mandamus. Whether to grant a writ of mandamus is within a court’s
discretion.
5. Courts: Justiciable Issues. Before reaching the legal issues presented
for review, courts must determine whether the issues presented are
justiciable.
6. ____: ____. Ripeness is a justiciability doctrine that courts consider in
determining whether they may properly decide a controversy.
7. Courts. The fundamental principle of ripeness is that courts should
avoid entangling themselves, through premature adjudication, in abstract
disagreements based on contingent future events that may not occur at
all or may not occur as anticipated.
8. Initiative and Referendum: Justiciable Issues. A challenge to a voter
ballot initiative based on substantive provisions of law is not ripe
before an election because an opinion on the substantive challenge
based on the contingent future event of the measure’s passage would be
merely advisory.
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STATE EX REL. WAGNER v. EVNEN
Cite as 307 Neb. 142
9. ____: ____. A preelection challenge based on the procedural require-
ments to a voter ballot initiative’s placement on the ballot is ripe
for resolution.
10. Initiative and Referendum. A challenge to the legal sufficiency of a
ballot initiative is a claim based on procedural requirements.
11. Constitutional Law: Statutes: Initiative and Referendum: Appeal
and Error. Because the voter ballot initiative power is precious to the
people, an appellate court construes statutory and constitutional provi-
sions dealing with voters’ power of initiative liberally to promote the
democratic process.
12. Constitutional Law: Statutes: Initiative and Referendum. By peti-
tion, the initiative power may be invoked and, if the appropriate
procedures are followed, used to propose statutory or constitutional
amendments to the state’s voters without resorting to the Nebraska
Legislature.
13. Constitutional Law: Initiative and Referendum. The people’s reserved
power of the initiative and their self-imposed requirements of procedure
in exercising that power are of equal constitutional significance.
14. ____: ____. The single subject rule under Neb. Const. art. III, § 2,
was adopted by voter ballot initiative to avoid, among other things,
logrolling.
15. Initiative and Referendum: Words and Phrases. Logrolling is the
practice of combining dissimilar propositions into one voter initiative so
that voters must vote for or against the whole package even though they
only support certain of the initiative’s propositions.
16. Courts: Initiative and Referendum. Courts in Nebraska follow the
natural and necessary connection test for determining whether a voter
ballot initiative violates the single subject rule.
17. Initiative and Referendum. Under the natural and necessary connec-
tion test, where the limits of a proposed law, having natural and neces-
sary connection with each other, and, together, are a part of one general
subject, the proposal is a single and not a dual proposition.
18. ____. The controlling factors in an inquiry under the natural and neces-
sary connection test are the initiative’s singleness of purpose and the
relationship of other details to its general subject.
19. ____. An initiative’s general subject is defined by its primary purpose.
20. Courts: Initiative and Referendum. A court’s analysis under the single
subject rule begins by characterizing the general subject.
21. Constitutional Law: Initiative and Referendum. A general subject
must not be characterized too broadly when considering an amendment
to the constitution.
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STATE EX REL. WAGNER v. EVNEN
Cite as 307 Neb. 142
22. Initiative and Referendum. A general subject must be characterized at
a level of specificity that allows for meaningful review of the natural
and necessary connection between it and the initiative’s other purposes.
23. Constitutional Law: Initiative and Referendum. The single subject
requirement may not be circumvented by selecting a general subject so
broad that the rule is evaded as a meaningful constitutional check on the
initiative process.
24. Words and Phrases. Necessary means something on which another
thing is dependent or contingent.
25. Declaratory Judgments: Justiciable Issues. The function of declara-
tory relief is to determine a justiciable controversy that is either not yet
ripe by conventional remedy or, for other reasons, is not conveniently
amenable to usual remedies.
26. Declaratory Judgments. Although declaratory judgment actions
are permitted by statute, in certain circumstances under the Uniform
Declaratory Judgments Act, a declaratory judgment will generally not lie
where another equally serviceable remedy is available.
27. Mandamus: Declaratory Judgments. If a writ of mandamus would
be adequate and equally serviceable, then a declaratory judgment will
not lie.
28. Mandamus: Proof. Mandamus relief is available if the movant can
show (1) a clear right to the relief sought, (2) a corresponding clear duty
to perform the act requested, and (3) no other plain and adequate remedy
is available in the ordinary course of law.
29. Public Officers and Employees: Initiative and Referendum. Nebraska
law imposes on the Secretary of State a nondiscretionary duty to deter-
mine the legal sufficiency of ballot measures and withhold any legally
insufficient measure from the ballot.
30. Initiative and Referendum. The single subject rule was adopted by
voters to protect against voter ballot initiatives that failed to give voters
an option to clearly express their policy preference.
31. Constitutional Law: Courts: Initiative and Referendum. Just as
courts must respect and give effect to the power the people have
reserved to themselves to amend the constitution through initiative
measures, courts are obliged to give meaningful effect to the people’s
self-imposed limitations on that power.
Original action. Writ of mandamus granted.
Mark A. Fahleson, of Rembolt Ludtke, L.L.P., for relator.
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STATE EX REL. WAGNER v. EVNEN
Cite as 307 Neb. 142
Jason W. Grams and Michael L. Storey, of Lamson, Dugan &
Murray, L.L.P., and Teri L. Vukonich-Mikkelsen, of Reisinger
Booth & Associates, P.C., L.L.O., for intervenors.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
I. INTRODUCTION
The Nebraska Secretary of State certified a voter ballot
initiative to create a constitutional right for persons with seri-
ous medical conditions to produce and medicinally use can-
nabis, subject to a recommendation by a licensed physician or
nurse practitioner. A Nebraska resident challenged the deci-
sion, claiming the initiative violated the single subject rule
under Neb. Const. art. III, § 2, and should be withheld from
the November 2020 general election ballot. We reverse the
Secretary of State’s decision and issue a writ of mandamus
directing him to withhold the initiative from the November
2020 general election ballot.
II. FACTUAL BACKGROUND
A voter ballot initiative petition to create a constitutional
right for persons with serious medical conditions to produce
and medicinally use cannabis, subject to a recommendation
by a licensed physician or nurse practitioner, was filed with
the Secretary of State, Robert B. Evnen, on February 5, 2019,
to certify it for inclusion on the November 2020 general elec-
tion ballot. Nebraskans for Sensible Marijuana Laws, a bal-
lot question committee, as well as two state senators, Adam
Morfeld and Anna Wishart, sponsored the petition. The objec-
tive of the petition was “to amend the Nebraska Constitution
to provide the right to use, possess, access, and safely pro-
duce cannabis, and cannabis products and materials, for seri-
ous medical conditions as recommended by a physician or
nurse practitioner.”
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STATE EX REL. WAGNER v. EVNEN
Cite as 307 Neb. 142
To accomplish this objective, the sponsors proposed the
“Nebraska Medical Cannabis Constitutional Amendment”
(NMCCA), an addition of Neb. Const. art. XIX, § 1. If
approved, the NMCCA would, in nine subsections, (1) estab-
lish a constitutional right for adults 18 years or older with
serious health conditions “to use, possess, access, purchase,
and safely and discreetly produce” medicinal cannabis as rec-
ommended by a licensed physician or nurse practitioner; (2)
establish the same right for minors younger than 18 years
of age, provided they obtain the consent of a parent or legal
guardian; (3) provide that private entities “may grow, cultivate,
process, possess, transport, sell, test, or transfer possession of
cannabis, cannabis products, and cannabis-related equipment
for sale or delivery to an individual authorized” under the first
two subsections; (4) decriminalize the medicinal use of canna-
bis for persons who qualify under the first two subsections; (5)
subject persons’ rights to use cannabis under the first two sub-
sections to reasonable laws, rules, and regulations; (6) set forth
certain limitations on the expansion of medicinal cannabis; (7)
provide that employers are not required to allow employees to
work while impaired by cannabis; (8) provide that insurance
providers are not required to provide coverage for the use of
cannabis; and (9) define cannabis.
Evnen transmitted the NMCCA to the Nebraska Attorney
General, Douglas J. Peterson, to prepare a statement explaining
the NMCCA and the effect of a vote for or against it. Peterson
then provided the NMCCA’s sponsors with a proposed ballot
title and explanatory statement. According to Peterson, the
NMCCA, if included on the November 2020 general election
ballot, should be presented to voters by the following text:
[EXPLANATORY STATEMENT]
A vote “FOR” will amend the Nebraska Constitution
to: (1) Provide individuals the right to use, possess,
access, purchase, and produce cannabis, cannabis prod-
ucts, and cannabis-related equipment for serious medi-
cal conditions if recommended by a licensed physician
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STATE EX REL. WAGNER v. EVNEN
Cite as 307 Neb. 142
or nurse practitioner, subject to certain exceptions and
reasonable laws, rules, and regulations; and (2) Allow
private entities and their agents operating in Nebraska
to grow, cultivate, process, possess, transport, sell, test,
or transfer possession of cannabis, cannabis products, or
cannabis-related equipment for sale or delivery to autho-
rized individual users, subject to reasonable laws, rules,
and regulations, including licensing.
A vote “AGAINST” will not cause the Nebraska
Constitution to be amended in such a manner. [(Emphasis
in original.)]
[BALLOT TITLE]
Shall the Nebraska Constitution be amended to: (1)
Provide individuals the right to use, possess, access,
purchase, and produce cannabis, cannabis products, and
cannabis-related equipment for serious medical condi-
tions if recommended by a licensed physician or nurse
practitioner, subject to certain exceptions and reasonable
laws, rules, and regulations; and (2) Allow private entities
and their agents operating in Nebraska to grow, cultivate,
process, possess, transport, sell, test, or transfer posses-
sion of cannabis, cannabis products, or cannabis-related
equipment for sale or delivery to authorized individual
users, subject to reasonable laws, rules, and regulations,
including licensing?
Peterson also transmitted a copy of his proposed explanatory
statement and ballot title to Evnen to determine whether to cer-
tify the NMCCA for inclusion on the November 2020 general
election ballot.
On August 26, 2020, Terry Wagner, a Nebraska resident,
filed an objection with Evnen, claiming the NMCCA was
legally insufficient. The NMCCA’s sponsors filed letters dis-
puting Wagner’s claim. Both parties also submitted additional
briefing to Evnen in the form of emails.
On August 27, 2020, Evnen issued a written determination
that the NMCCA was legally sufficient. He found that the
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STATE EX REL. WAGNER v. EVNEN
Cite as 307 Neb. 142
NMCCA had only one general subject—“to legalize the use of
cannabis in this state for persons with serious medical condi-
tions”—and that any other purposes were naturally and neces-
sarily connected to that primary purpose. Accordingly, Evnen
wrote that the NMCCA did not violate the single subject rule
under Neb. Const. art. III, § 2, and that he would “not withhold
it from the ballot unless otherwise ordered by a court of com-
petent jurisdiction.”
On August 28, 2020, Wagner filed with this court an appli-
cation for leave to commence an original action. According to
Wagner, this court’s review of Evnen’s decision was neces-
sary because only 14 days remained until the deadline set by
Neb. Rev. Stat. § 32-801 (Reissue 2016) for Evnen to certify
the issues appearing on the November 2020 general elec-
tion ballot.
We granted Wagner leave to commence an original action.
Based on Wagner’s verified petition for writ of mandamus,
we issued an alternative writ of mandamus directing Evnen to
show cause why the NMCCA should not be withheld from the
November 2020 general election ballot. The NMCCA’s spon-
sors intervened and essentially aligned their arguments with
Evnen’s decision in defense of the NMCCA’s legal sufficiency
under the single subject rule.
We note at the outset that the parties do not dispute that the
NMCCA petition garnered sufficient signatures and complied
with all procedural requirements, except the single subject rule.
We therefore presume such other requirements were met and
would not prevent placement of the NMCCA on the general
election ballot.
III. ASSIGNMENTS OF ERROR
Wagner (1) contends that Evnen erred in failing to find the
NMCCA legally insufficient for violating the single subject
rule under Neb. Const. art. III, § 2, and (2) prays that this
court enter a declaratory judgment finding the NMCCA legally
insufficient and issue a writ of mandamus directing Evnen to
withhold it from the November 2020 general election ballot.
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STATE EX REL. WAGNER v. EVNEN
Cite as 307 Neb. 142
IV. STANDARD OF REVIEW
[1,2] Questions of justiciability and of constitutional inter-
pretation that do not involve factual dispute are questions of
law. 1 An appellate court reviews questions of law de novo,
drawing independent conclusions irrespective of any decision
made below. 2
[3,4] Mandamus is a law action and represents an extraor-
dinary remedy, not a writ of right. 3 Whether to grant a writ of
mandamus is within a court’s discretion. 4
V. ANALYSIS
1. Justiciability
[5-7] Before reaching the legal issues presented for review,
courts must determine whether the issues presented are justi-
ciable. 5 Ripeness is a justiciability doctrine that courts con-
sider in determining whether they may properly decide a
controversy. 6 The fundamental principle of ripeness is that
courts should avoid entangling themselves, through premature
adjudication, in abstract disagreements based on contingent
future events that may not occur at all or may not occur as
anticipated. 7
[8,9] A challenge to a voter ballot initiative based on
substantive provisions of law is not ripe before an election
because “[a]n opinion on the substantive challenge based on
the contingent future event of the measure’s passage would be
1
See, State v. Said, 306 Neb. 314, 945 N.W.2d 152 (2020) (constitutional
interpretation); State ex rel. Peterson v. Ebke, 303 Neb. 637, 930 N.W.2d
551 (2019) (justiciability).
2
See State v. Said, supra note 1.
3
See State ex rel. BH Media Group v. Frakes, 305 Neb. 780, 943 N.W.2d
231 (2020).
4
See id.
5
See In re Interest of Giavonni P., 304 Neb. 580, 935 N.W.2d 631 (2019).
6
Christensen v. Gale, 301 Neb. 19, 917 N.W.2d 145 (2018).
7
Id.
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STATE EX REL. WAGNER v. EVNEN
Cite as 307 Neb. 142
merely advisory.” 8 In contrast, a preelection challenge based
on “the procedural requirements to [a voter ballot initiative’s]
placement on the ballot” is ripe for resolution. 9
[10] Here, Wagner challenges only the legal sufficiency of
the NMCCA. We have held that a challenge to the legal suf-
ficiency of a ballot initiative is a claim based on procedural
requirements. 10 Hence, Wagner’s claim is ripe for our review
before the election.
2. Legal Sufficiency
Wagner’s claim is that Evnen erred in finding the NMCCA
legally sufficient. According to Wagner, the NMCCA violates
the single subject rule under Neb. Const. art. III, § 2, because
its general subject and various other provisions lack any natu-
ral and necessary connection with each other. We agree.
(a) Single Subject Rule
[11-13] Under the Nebraska Constitution, the voter ballot
initiative is “[t]he first power reserved by the people . . . .” 11
Because the voter ballot initiative power is precious to the
people, we construe statutory and constitutional provisions
dealing with voters’ power of initiative liberally to promote
the democratic process. 12 By petition, the initiative power may
be invoked and, if the appropriate procedures are followed,
used to propose statutory or constitutional amendments to the
state’s voters without resorting to the Nebraska Legislature. 13
“The people’s reserved power of the initiative and their
8
Id. at 35, 917 N.W.2d at 158.
9
Id.
10
See State ex rel. Loontjer v. Gale, 288 Neb. 973, 853 N.W.2d 494 (2014).
11
Neb. Const. art. III, § 2.
12
See State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019), cert. denied
___ U.S. ___, ___ S. Ct. ___, 206 L. Ed. 2d 844 (2020).
13
See id.
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STATE EX REL. WAGNER v. EVNEN
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self-imposed [requirements of procedure in exercising that
power] are of equal constitutional significance.” 14
[14,15] One constitutional requirement of the voter bal-
lot initiative procedure is the single subject rule. Under the
Nebraska Constitution, “[i]nitiative measures shall contain only
one subject.” 15 This requirement was adopted by voter ballot
initiative in 1998 to avoid, among other things, logrolling. 16
Logrolling is the practice of combining dissimilar propositions
into one voter initiative so that voters must vote for or against
the whole package even though they only support certain of the
initiative’s propositions. 17
[16-19] We follow the natural and necessary connection test
for determining whether a voter ballot initiative violates the
single subject rule. 18 Under the test, “‘“[W]here the limits of
a proposed law, having natural and necessary connection with
each other, and, together, are a part of one general subject,
the proposal is a single and not a dual proposition.”’” 19 The
controlling factors in this inquiry are the initiative’s singleness
of purpose and the relationship of other details to its general
subject. 20 An initiative’s general subject is defined by its pri-
mary purpose. 21
Although we have applied similar natural and necessary
connection tests based in the common law to municipal voter
ballot initiatives and legislatively proposed constitutional
14
State ex rel. Lemon v. Gale, 272 Neb. 295, 304, 721 N.W.2d 347, 356
(2006).
15
Neb. Const. art. III, § 2.
16
See 1997 Neb. Laws, L.R. 32CA, § 1; Christensen v. Gale, supra note 6.
17
Christensen v. Gale, supra note 6.
18
Id.
19
Id. at 32, 917 N.W.2d at 156 (quoting State ex rel. Loontjer v. Gale, supra
note 10). See, also, Munch v. Tusa, 140 Neb. 457, 300 N.W. 385 (1941).
20
Christensen v. Gale, supra note 6.
21
Id.
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STATE EX REL. WAGNER v. EVNEN
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amendments, 22 we have only applied the test based in the
single subject rule, Neb. Const. art. III, § 2, to a voter ballot
initiative once before, in Christensen v. Gale. 23
At issue in Christensen was a voter ballot initiative to amend
the Medical Assistance Act 24 to (1) expand Medicaid coverage
to certain lower income adults in Nebraska and (2) direct the
Nebraska Department of Health and Human Services to take
actions necessary to maximize federal funding for medical
assistance in the State. 25 Objectors claimed that these objec-
tives qualified as impermissible dual purposes. 26
We upheld the voter ballot initiative. 27 First, we determined
from the initiative’s text that its general subject was “the
expansion of Medicaid.” 28 Second, we found that although the
initiative’s text indicated a secondary purpose was maximiz-
ing federal funding, the secondary purpose did not violate the
single subject rule because it “ha[d] a natural and necessary
connection” to expansion of Medicaid, 29 namely, increased
federal funding would enable the State to pay to expand
Medicaid coverage. 30 Therefore, “maximizing federal funding
for that expansion [wa]s a detail related to the singleness of
purpose of expanding Medicaid.” 31 While some voters might
22
See, e.g., State ex rel. Loontjer v. Gale, supra note 10 (legislatively
proposed constitutional amendment to allow certain horse track wagers);
City of Fremont v. Kotas, 279 Neb. 720, 781 N.W.2d 456 (2010) (municipal
voter ballot initiative to regulate undocumented immigrants), abrogated on
other grounds, City of North Platte v. Tilgner, 282 Neb. 328, 803 N.W.2d
469 (2011).
23
Christensen v. Gale, supra note 6.
24
See Neb. Rev. Stat. §§ 68-901 to 68-994 (Reissue 2018 & Supp. 2019).
25
Christensen v. Gale, supra note 6.
26
Id.
27
Id.
28
Id. at 34, 917 N.W.2d at 157.
29
Id.
30
See id.
31
Id.
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have been in favor of Medicaid expansion but not expand-
ing federal funding, the dissimilarity between these purposes
was not so great that they “create[d] a risk of confusion and
logrolling.” 32
(b) Right to Produce and
Medicinally Use Cannabis
[20-23] Our analysis here under the single subject rule
begins by characterizing the NMCCA’s general subject. We
have stated before that a general subject must not be charac-
terized too broadly when considering an amendment to the
constitution. 33 An overly broad general subject might allow
any secondary purpose to arguably be naturally and necessarily
connected to it. 34 Instead, a general subject must be character-
ized at a level of specificity that allows for meaningful review
of the natural and necessary connection between it and the ini-
tiative’s other purposes. As two other jurisdictions have stated
in a similar context, “‘the single subject requirement may not
be circumvented by selecting a [general subject] so broad that
the rule is evaded as a meaningful constitutional check’” on the
initiative process. 35
At an appropriate level of specificity, then, the NMCCA’s
general subject is to create a constitutional right for persons
with serious medical conditions to produce and medicinally
use an adequate supply of cannabis, subject to a recommenda-
tion by a licensed physician or nurse practitioner. This primary
32
Id. at 35, 917 N.W.2d at 158.
33
See State ex rel. Loontjer v. Gale, supra note 10.
34
Id. See, e.g., Richard Briffault, The Single-Subject Rule: A State
Constitutional Dilemma, 82 Alb. L. Rev. 1629, 1637 (2019) (noting, with
disapproval, that “some state courts have approved as constitutionally
permissible subjects such broad topics as ‘land,’ ‘education,’ ‘transportation,’
‘utilities,’ ‘state taxation,’ ‘public safety,’ ‘capital projects,’ and ‘operations
of state government’”).
35
Gregory v. Shurtleff, 299 P.3d 1098, 1112 (Utah 2013) (quoting Wirtz v.
Quinn, 2011 IL 111903, 953 N.E.2d 899, 352 Ill. Dec. 218 (2011)).
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purpose is evident from the text of subsections (1) and (2) of
the NMCCA:
(1) An individual who is eighteen years of age or older,
if recommended by a licensed physician or nurse practi-
tioner, has the right to use, possess, access, purchase, and
safely and discreetly produce an adequate supply of canna-
bis, cannabis products, and cannabis-related equipment to
alleviate a serious medical condition. Such individual may
be assisted by a caregiver in exercising these rights.
(2) An individual who is under eighteen years of age,
if recommended by a licensed physician or nurse practi-
tioner and with the permission of a parent or legal guard-
ian with responsibility for health care decisions of such
individual, has the right to use cannabis, cannabis prod-
ucts, and cannabis-related equipment to alleviate a serious
medical condition. Such individual may be assisted by a
parent, legal guardian, or caregiver, who may ­possess,
access, purchase, and safely and discreetly produce an
adequate supply of cannabis, cannabis products, and
cannabis-related equipment on behalf of the individual.
Also in support of this primary purpose, subsection (5) del-
egates authority to the Legislature and administrative agen-
cies to promulgate laws, rules, and regulations. Subsection (9)
defines the term “cannabis.”
Further evidence that this is the NMCCA’s general subject is
found in the object statement submitted by the NMCCA’s spon-
sors: “The object of this petition is to: Amend the Nebraska
Constitution to provide the right to use, possess, access, and
safely produce cannabis, and cannabis products and materials,
for serious medical conditions as recommended by a physi-
cian or nurse practitioner.” Peterson also identified this as the
NMCCA’s primary purpose when he stated in his ballot title
and explanatory statement that the NMCCA would “[p]rovide
individuals the right to use, possess, access, purchase, and pro-
duce cannabis, cannabis products, and cannabis-related equip-
ment for serious medical conditions if recommended by a
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licensed physician or nurse practitioner, subject to certain
exceptions and reasonable laws, rules, and regulations . . . .”
(Emphasis omitted.)
These statements characterize the NMCCA’s general subject
accurately and at an adequate level of specificity to provide
for meaningful review. A constitutional right to produce and
medicinally use cannabis is not so broad as to evade the single
subject rule as a constitutional check on voter ballot initiatives.
Rather, it can be tested against other provisions without risk
that every secondary purpose could reasonably be argued as
naturally and necessarily connected to it.
Accordingly, we find the general subject of the NMCCA
is to create a constitutional right for persons with serious
medical conditions to produce and medicinally use cannabis,
subject to a recommendation by a licensed physician or nurse
practitioner.
(c) Right to Grow and
Sell Cannabis
As Evnen found, the NMCCA also states a secondary pur-
pose. Subsections (3) and (4) state:
(3) The rights protected in subsections (1) and (2) of
this section include the right to access or purchase can-
nabis, cannabis products, and cannabis-related equipment
from private entities. Private entities and agents operating
on the entities’ behalf in the State of Nebraska may grow,
cultivate, process, possess, transport, sell, test, or transfer
possession of cannabis, cannabis products, and cannabis-
related equipment for sale or delivery to an individual
authorized to use cannabis under subsection (1) or (2) of
this section.
(4) Individuals or entities engaged in actions allowed
by, or exercising rights protected by this section shall
not be subject to arrest, prosecution, or civil or criminal
penalties under state or local law, except that reasonable
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penalties may be imposed for any violation of reasonable
laws, rules, and regulations enacted pursuant to subsec-
tion (5) of this section.
By this text, subsections (3) and (4) express a different pri-
mary purpose than subsections (1) and (2). Instead of affording
certain persons a constitutional right to produce and medici-
nally use cannabis, subsection (3) would afford private entities
in Nebraska a constitutional property right to legally grow and
sell the substance to persons who qualify under subsections (1)
and (2). And subsection (4) would civilly and criminally immu-
nize any private entity engaging in actions allowed or protected
by subsection (3).
Though he found the “difficulty” posed by subsections (3)
and (4) under the single subject rule “substantial,” Evnen
decided the secondary purpose was sufficiently in support of
the general subject to be naturally and necessarily connected.
Similar to Christensen 36 and City of Fremont v. Kotas, 37 where
the secondary purpose was upheld because it would signifi-
cantly support the initiative’s general subject, Evnen reasoned,
the constitutional right to grow and sell cannabis here, too, was
in support of the constitutional right to produce and medici-
nally use the substance. We disagree.
This case is distinguishable from both Christensen and
Kotas. Kotas is distinguishable because it was decided under
our common-law single subject rule. We have applied the
common-law rule to municipal voter ballot initiatives since at
least 1939. 38 Under that rule, we have stated that
a proposed municipal ballot measure is invalid if it would
(1) compel voters to vote for or against distinct propo-
sitions in a single vote—when they might not do so if
presented separately; (2) confuse voters on the issues they
36
See Christensen v. Gale, supra note 6.
37
See City of Fremont v. Kotas, supra note 22.
38
See Drummond v. City of Columbus, 136 Neb. 87, 285 N.W. 109 (1939).
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are asked to decide; or (3) create doubt as to what action
they have authorized after the election. 39
But the single subject rule as applied to voter ballot initia-
tives has a much shorter and simpler history. Voters adopted
the single subject rule for voter ballot initiatives in 1998. 40 And
they placed, in Neb. Const. art. III, § 2, only a seven-word
requirement: “Initiative measures shall contain only one sub-
ject.” Accordingly, this case is controlled by those seven words
and not by the three-part test applied in Kotas.
We have only applied the single subject rule under Neb.
Const. art. III, § 2, once before, in Christensen, but that case is
factually distinguishable here. 41 In Christensen, the initiative’s
secondary purpose (maximizing federal funding for Medicaid)
was naturally and necessarily connected to its general subject
(expanding Medicaid coverage in the State). The nature of
expanding Medicaid coverage was clearly connected to its
funding source, and federal funding was necessary for the State
to expand Medicaid coverage. 42 The similarity between these
two purposes demonstrated a singleness of purpose and a lack
of logrolling concerns. 43
Although not explicitly stated in Christensen, an implied
further reason that logrolling was not a concern was that it was
the federal government, and not the initiative’s sponsors, that
tied federal funding to state programs of Medicaid expansion.
This indicated that the secondary purpose was not one borne
purely of tactical convenience—that is, to persuade voters “to
vote for the primary purpose of expanding Medicaid in order to
obtain, more generally, federal funds.” 44
39
City of North Platte v. Tilgner, supra note 22, 282 Neb. at 349, 803
N.W.2d at 487.
40
See 1997 Neb. Laws, L.R. 32CA, § 1.
41
Christensen v. Gale, supra note 6.
42
Id.
43
Id.
44
Id. at 35, 917 N.W.2d at 158.
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In contrast, here, the NMCCA’s secondary purpose is not
naturally and necessarily connected to its general subject.
First, subsection (3) lacks any natural connection to subsec-
tions (1) and (2). While subsections (1) and (2) concern a
personal constitutional right of patients with serious medical
conditions to produce and use cannabis for themselves, sub-
section (3) concerns a constitutional right of private entities to
grow and sell cannabis to others. This constitutional right to
sell cannabis, and its accompanying expectation of profit, is a
property right.
We have long distinguished between the nature of use and
property rights in other contexts. 45 We have also distinguished
between the nature of rights held by an individual and by
a business or other legal entity. 46 The personal, individual
rights that would be conferred by subsections (1) and (2) are
fundamentally distinct from the property rights conferred by
subsection (3). Meanwhile, subsection (4) would enforce those
property rights by conferring civil and criminal immunity to
persons exercising them. Accordingly, neither subsection (3)
nor subsection (4) is naturally connected to the NMCCA’s gen-
eral subject.
[24] Second, the NMCCA’s secondary purpose is not neces-
sarily connected to its general subject. The term “necessary”
means something “on which another thing is dependent or
45
See, e.g., Cappel v. State, 298 Neb. 445, 456, 905 N.W.2d 38, 48
(2017) (“[t]he right to appropriate surface water is not an ownership of
property”); Strode v. City of Ashland, 295 Neb. 44, 62-63, 886 N.W.2d
293, 307 (2016) (noting, in an inverse condemnation action, that “‘“‘[t]he
right to full and free use and enjoyment of one’s property in a manner and
for such purposes as the owner may choose . . . is a privilege [of owning
property rights] protected by law’”’”).
46
See, e.g., State v. Stanko, 304 Neb. 675, 685, 936 N.W.2d 353, 361
(2019) (business that “holds a portion of its property open to the public”
impliedly gives right to others to enter it under a limited privilege). See,
also, Neb. Rev. Stat. § 21-145 (Reissue 2012) (providing limited liability
company right, which no individual has, to legally dissolve).
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contingent.” 47 In no sense is authorization in subsection (3) for
private entities to grow and sell cannabis necessary for patients
with serious medical conditions to use the substance medici-
nally. Subsections (1) and (2) provide for patients to obtain
cannabis by producing it themselves or with the help of a
caregiver. If patients could legally produce their own medicinal
cannabis, their legal use of the substance would not depend or
be contingent upon it being grown and sold by private entities.
Subsections (3) and (4) would create a market to unnecessarily
bolster the supply of medicinal cannabis, despite subsections
(1) and (2) already providing an adequate means of meeting
any demand. In this way, subsection (3) would go far beyond
any necessary connection, and subsection (4) would broaden
this already unnecessarily connected purpose still further by
conferring any private entity acting under the color of constitu-
tional right under subsection (3) with immunity from any civil
or criminal liability, even arrest.
Suppose that a voter were in favor of there being in this state
a constitutional right to produce and medicinally use cannabis,
but not a constitutional right to grow and sell the substance;
he or she could not express that preference with a vote for
or against the NMCCA in November. Instead, in its first and
second pairs of subsections, the NMCCA combines dissimilar
propositions into one proposed amendment “so that voters must
vote for or against the whole package even though they would
have voted differently had the propositions been submitted
47
“Necessary,” Oxford English Dictionary Online, http://oed.com/view/
Entry/125629 (last visited Sept. 8, 2020). See, also, “Necessary,” Merriam-
Webster.com, http://www.merriam-webster.com/dictionary/necessary (last
visited Sept. 8, 2020) (“absolutely needed” or “logically unavoidable”);
“Necessary,” Cambridge English Dictionary Online, http://dictionary.
cambridge.org/us/dictionary/english/necessary (last visited Sept. 8, 2020)
(“needed in order to achieve a particular result”); Black’s Law Dictionary
1192 (10th ed. 2014) (“[t]hat is needed for some purpose or reason;
essential”).
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separately.” 48 This demonstrates precisely the logrolling sce-
nario that Nebraska’s voters sought to avoid by adopting the
single subject rule in Neb. Const. art. III, § 2.
We hold that subsections (3) and (4) of the NMCCA exhibit
an impermissible secondary purpose because they are not natu-
rally and necessarily connected to subsections (1) and (2).
(d) Limitations on Right to Produce
and Medicinally Use Cannabis
At oral arguments, Wagner also maintained that some six
other purposes of the NMCCA render it in violation of the
single subject rule. Specifically, Wagner points to the following
language in subsections (6), (7), and (8):
(6) This section shall not be construed to:
(a) Allow the smoking of cannabis in public;
(b) Require detention or correctional facilities to allow
the possession or use of cannabis in such facilities;
(c) Allow the operation of a motor vehicle while
impaired by cannabis; or
(d) Otherwise allow engaging in conduct that would be
negligent to undertake while impaired by cannabis.
(7) This section does not require an employer to allow
an employee to work while impaired by cannabis.
(8) This section does not require any insurance provider
to provide insurance coverage for the use of cannabis.
We agree with Wagner that the clauses in these subsec-
tions represent distinct constitutional rights and policies not
naturally and necessarily connected to the general subject of
the NMCCA. The NMCCA’s general subject bears no natural
relation to the four objects expressed in subsection (6) that
would amend, with respect to medicinal cannabis use, the
law of public space, correctional facilities, motor vehicles,
and negligence. Nor does the production and medicinal use
of cannabis naturally relate to the objects in subsections (7)
and (8) that would amend the law of employment decisions
48
Christensen v. Gale, supra note 6, 301 Neb. at 31, 917 N.W.2d at 156.
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and insurance coverage. These objects of limitation are not in
any way necessary for a constitutional right to produce and
medicinally use cannabis. There is nothing about the makeup
or constitution of the production and medicinal use of can-
nabis that naturally relates to these objects, nor would the
constitutional right of producing and medicinally using can-
nabis be dependent or contingent on its exclusion from certain
locations or situations.
Rather, by our existing law, there is strong evidence that each
of these objects of limitation needed to be included in separate
voter ballot initiatives to amend the Nebraska Constitution.
Nebraska’s Constitution and statutes are separated by many of
the objects of limitation the NMCCA would impose on existing
law. For example, the use of public spaces, operation of motor
vehicles, regulation of correctional facilities, and law of negli-
gence are regulated by numerous other statutes. 49 The same is
true of employment and insurance law. 50 That our laws have
naturally separated these limitations provides strong evidence
that they are their own general subjects and not naturally or
necessarily connected to the production and medicinal use of
cannabis. Indeed, a constitutional right to produce and medici-
nally use cannabis, if properly put to and approved by voters,
would likely also result in the promulgation of new sections
and chapters of laws regulating the production and medicinal
use of cannabis.
But the issue with respect to subsections (6), (7), and
(8) is the same as it is with respect to subsections (3) and (4).
In voting on the NMCCA, a voter who approved or disap-
proved of a constitutional right to produce and medicinally use
49
See, e.g., Neb. Rev. Stat. ch. 25, art. 21(o) (Reissue 2016) (“Certain Cases
Involving Negligence”); Neb. Rev. Stat. ch. 37 (Reissue 2016) (“Game and
Parks”); Neb. Rev. Stat. ch. 51 (Reissue 2010) (“Libraries and Museums”);
Neb. Rev. Stat. ch. 60 (Reissue 2010) (“Motor Vehicles”); Neb. Rev. Stat.
ch. 83, art. 4 (Reissue 2014) (“Penal and Correctional Institutions”).
50
See, e.g., Neb. Rev. Stat. ch. 44 (Reissue 2010) (“Insurance”); Neb. Rev.
Stat. ch. 48 (Reissue 2010) (“Labor”).
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cannabis cannot express a contrary view as to the additional
subjects presented in subsections (6), (7), and (8) on the law
of public space, correctional facilities, motor vehicles, negli-
gence, employment decisions, and insurance coverage. On its
face, the NMCCA indicates that these subjects of constitutional
amendment were included only for tactical convenience, not
any natural and necessary connection. This is again an example
of logrolling.
We hold that subsections (6), (7), and (8) of the NMCCA
also exhibit an impermissible secondary purpose because they
are not naturally and necessarily connected to subsections (1)
and (2).
3. Writ of Mandamus
Based on the legal insufficiency of the NMCCA, Wagner
prays for this court to issue two forms of relief: first, a declara-
tory judgment finding that the NMCCA is legally insufficient,
and second, a writ of mandamus requiring Evnen to withhold it
from the November 2020 general election ballot.
[25,26] The function of declaratory relief is to determine
a justiciable controversy that is either not yet ripe by con-
ventional remedy or, for other reasons, is not conveniently
amenable to usual remedies. 51 Thus, although declaratory judg-
ment actions are permitted by statute in certain circumstances
under the Uniform Declaratory Judgments Act, 52 we have
held that a declaratory judgment will generally not lie where
another equally serviceable remedy is available. 53 An applica-
tion for a writ of mandamus is another such equally service-
able remedy. 54
[27] Under this rule, then, Wagner cannot have relief in the
form of both a declaratory judgment and a writ of mandamus.
51
Cain v. Lymber, 306 Neb. 820, ___ N.W.2d ___ (2020).
52
Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2016).
53
Cain v. Lymber, supra note 51.
54
See id.
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If a writ of mandamus would be adequate and equally service-
able, then a declaratory judgment will not lie.
[28] Mandamus relief is available if Wagner can show (1)
that there exists a clear right to the relief sought, (2) that Evnen
has a corresponding clear duty to perform the act requested,
and (3) that no other plain and adequate remedy is available in
the ordinary course of law. 55
[29] Here, because Wagner’s legal insufficiency argument
has merit, his prayer for a writ of mandamus also has merit.
Nebraska law imposes on the Secretary of State a nondiscre-
tionary duty to determine the legal sufficiency of ballot meas­
ures and withhold any legally insufficient measure from the
ballot. 56 Noting that this was “a close case,” Evnen wrongly
determined to certify the NMCCA, a legally insufficient voter
ballot initiative, for the November 2020 general election bal-
lot. Thus, Wagner’s right is clear and mandamus relief is his
only adequate remedy. Accordingly, we deny Wagner’s prayer
for a declaratory judgment, but grant his prayer for a writ
of mandamus.
VI. CONCLUSION
[30,31] The single subject rule was adopted by voters to pro-
tect against voter ballot initiatives that failed to give voters an
option to clearly express their policy preference. 57 “Just as we
must ‘respect and . . . give effect to the power the people have
reserved to themselves’ to amend the constitution . . . through
initiative measures, we are obliged to give meaningful effect
to their ‘self-imposed limitations’ on that power . . . .” 58 Here,
that means giving meaningful effect to the single subject rule
in Neb. Const. art. III, § 2.
55
See State ex rel. Wieland v. Beermann, 246 Neb. 808, 523 N.W.2d 518
(1994).
56
See id.
57
See State ex rel. Loontjer v. Gale, supra note 10.
58
State ex rel. Lemon v. Gale, supra note 14, 272 Neb. at 304, 721 N.W.2d
at 356.
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As proposed, the NMCCA contains more than one subject—
by our count, it contains at least eight subjects. In addition to
enshrining in our constitution a right of certain persons to pro-
duce and medicinally use cannabis under subsections (1) and
(2), in subsections (3) and (4), the NMCCA would enshrine
a right and immunity for entities to grow and sell cannabis;
and in subsections (6), (7), and (8), it would regulate the role
of cannabis in at least six areas of public life. These sec-
ondary purposes are not naturally and necessarily connected
to the NMCCA’s primary purpose. As such, they constitute
logrolling.
If voters are to intelligently adopt a State policy with regard
to medicinal cannabis use, they must first be allowed to decide
that issue alone, unencumbered by other subjects.
The decision of the Secretary of State is reversed. We issue a
writ of mandamus directing him to withhold the NMCCA from
the November 2020 general election ballot.
Writ of mandamus granted.
Papik, J., dissenting.
I respectfully dissent from the opinion of the court to
the extent it concludes that the Nebraska Medical Cannabis
Constitutional Amendment (NMCCA) should not be placed
on the ballot and voted upon by the people. I agree with the
Secretary of State that the NMCCA does not violate the single
subject requirement of Neb. Const. art. III, § 2.
Under Neb. Const. art. III, § 2, “[t]he first power reserved
by the people is the initiative whereby laws may be enacted
and constitutional amendments adopted by the people inde-
pendently of the Legislature.” We have long recognized that
“[t]he right of initiative is precious to the people and one
which courts are zealous to preserve to the fullest tenable
measure of spirit as well as letter.” Christensen v. Gale, 301
Neb. 19, 27, 917 N.W.2d 145, 153 (2018). See, also, State
ex rel. Stenberg v. Moore, 258 Neb. 199, 602 N.W.2d 465
(1999). We have also said that the power of initiative must
be liberally construed to promote the democratic process and
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that provisions authorizing the initiative should be construed
in such a manner that the legislative power reserved in the
people is effectual. Stewart v. Advanced Gaming Tech., 272
Neb. 471, 723 N.W.2d 65 (2006).
The people’s power to amend the constitution or enact leg-
islation through initiative is not unlimited. The single subject
rule at issue in this case is one such limitation. The single
subject requirement arises out of the following seven words in
art. III, § 2: “Initiative measures shall contain only one sub-
ject.” As the majority opinion describes, we have traditionally
followed what we have dubbed the natural and necessary con-
nection test for determining whether a ballot initiative violates
the single subject rule. See Christensen, supra. Under that test,
“‘“[w]here the limits of a proposed law, having natural and
necessary connection with each other, and, together, are a part
of one general subject, the proposal is a single and not a dual
proposition.”’” Id. at 32, 917 N.W.2d at 156 (quoting State ex
rel. Loontjer v. Gale, 288 Neb. 973, 853 N.W.2d 494 (2014)).
See, also, Munch v. Tusa, 140 Neb. 457, 300 N.W. 385 (1941).
The controlling factors in this inquiry are the initiative’s single-
ness of purpose and the relationship of the details to its general
subject. Christensen, supra. An initiative’s general subject is
defined by its primary purpose. Id.
Under the foregoing test, the first step in any single subject
rule inquiry is to determine the general subject or primary pur-
pose of the initiative measure. And, as it turns out, everyone
involved in this case—the initiative’s sponsors, the relator, the
Secretary, and the majority of this court—more or less agrees
as to the NMCCA’s primary purpose. As the majority puts it,
the NMCCA’s purpose is “to create a constitutional right for
persons with serious medical conditions to produce and medic-
inally use cannabis, subject to a recommendation by a licensed
physician or nurse practitioner.” I agree that is a fair statement
of the NMCCA’s primary purpose.
With the general subject or primary purpose of the NMCCA
established, the question is whether the various provisions
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thereof have a natural and necessary connection to that pri-
mary purpose. It is on this question that I part company with
the majority. For reasons I will explain, I find that when the
natural and necessary connection test is applied to the NMCCA
in the manner in which we have done so in previous cases,
no single subject rule violation emerges. All the details of the
NMCCA relate to the same general subject—providing a right
to individuals with serious medical conditions to use cannabis
to alleviate those conditions.
Right to Produce Cannabis and Sell
It to Those Given Right to Use.
The majority finds that the NMCCA first violates the single
subject rule by providing private entities a right to produce can-
nabis for and sell cannabis to those authorized to use cannabis
to alleviate a serious medical condition, as well as conferring
certain legal immunities on those private entities when they
do so. I disagree that this right to produce and sell cannabis
to those authorized to use it and related immunities constitute
additional subjects under the natural and necessary relation-
ship test. Instead, I agree with the analysis of the Secretary on
this point.
The Secretary found there was a natural and necessary con-
nection between the legalized production and sale of medical
cannabis and the primary purpose of the NMCCA—individual
use of cannabis by those with serious medical conditions. As
he explained, “[i]t is inherent in the legalization of medical
cannabis that someone or some category of persons must be
granted the right or authority to produce, sell and distribute
the medical cannabis.” I agree with this assessment. A right of
individuals to use cannabis for medicinal purposes is meaning-
ful only if individuals can access cannabis. Some means of
access is naturally and necessarily related to use. The NMCCA
proposes to provide that access through both allowing indi-
viduals to grow their own cannabis and allowing production
and sale by third parties.
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The majority finds otherwise, reasoning that the right to sell
cannabis is a property right and that individuals given the right
to use cannabis could access it by means other than allowing
third parties to produce and sell it. I am not convinced. First,
it is not clear to me what property right has been created or
bestowed by giving unspecified entities the right to produce
and sell cannabis to authorized users, but, in any event, I also
do not see what relevance that has to the natural and necessary
connection test.
As for the notion that there is a single subject problem
because authorized users could get access to cannabis in some
other way, that runs counter to our precedent applying the
natural and necessary connection test. Last election cycle in
Christensen v. Gale, 301 Neb. 19, 917 N.W.2d 145 (2018),
we rejected an argument that an initiative measure to expand
Medicaid in Nebraska violated the single subject rule because
it could have been proposed without also proposing that federal
funding be maximized. We said that the single subject inquiry
was not whether the measure could have been proposed with-
out federal funding or “the strict necessity of any given detail
to carry out the general subject,” but, rather, the controlling
consideration was the measure’s “singleness of purpose and
relationship of the details to the general subject.” Id. at 34, 917
N.W.2d at 157 (emphasis supplied).
Neither did we inquire in City of Fremont v. Kotas, 279 Neb.
720, 781 N.W.2d 456 (2010), whether each of the individual
elements of a proposed municipal ordinance to regulate illegal
immigration were indispensable to achieve the measure’s gen-
eral purpose. There, we concluded that a proposed ordinance
imposing different requirements on a variety of different enti-
ties—landlords, tenants, the city police department, and local
businesses—constituted a single subject because the various
components “had a natural and necessary connection with each
other and were part of the general subject of regulating illegal
aliens” in the city. Id. at 728, 781 N.W.2d at 463. The major-
ity suggests that Kotas has no bearing on this case because
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municipal initiatives are not governed by the art. III, § 2,
single subject rule, but Kotas is not so easily cast to the side.
Although Kotas did involve a municipal initiative, we cited
and applied the same natural and necessary connection test
that governs here. In fact, this court subsequently abrogated
Kotas precisely for applying a state constitutional provision
to a municipal ordinance. See City of North Platte v. Tilgner,
282 Neb. 328, 803 N.W.2d 469 (2011). Furthermore, we relied
on the reasoning of Kotas in Christensen, which involved the
single subject rule at hand here.
Not only is the majority’s application of the natural and nec-
essary test in tension with our prior cases, it is difficult to see
how it would ever allow an initiative measure to include the
means by which an initiative measure seeks to accomplish its
general purpose. In almost any case, a challenger will be able
to point to some alternative way in which the general purpose
could be pursued and thereby argue that the means proposed
by the initiative’s sponsors are not “necessary” and thus intro-
duce a prohibited second subject. And yet our articulation of
the natural and necessary connection test expressly contem-
plates that a measure may contain both a primary purpose and
the details by which that purpose will be achieved. See, e.g.,
Christensen, supra.
So what work does the word “necessary” do in the natu-
ral and necessary connection test? I read Christensen to say
that rather than asking whether a particular detail is strictly
necessary or whether other details could have been provided,
we are to ask whether the purpose of the included details are
naturally and necessarily connected to the general purpose. In
Christensen, the provision regarding maximizing federal fund-
ing passed the natural and necessary connection test because
funding of some kind is a natural and necessary part of the
expansion of a government program. In a similar way, as the
Secretary reasoned here, providing individuals authorized to
use cannabis medicinally a means of access is a natural and
necessary part of granting a right to use.
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Finally, I disagree with the majority’s assertion that the
NMCCA’s inclusion of both a right to use cannabis medicinally
and a right of others to produce and sell it to authorized users
is a single subject violation because it amounts to logrolling.
We have said that the prevention of logrolling is a purpose
of the single subject rule, but we have defined logrolling as
“the practice of combining dissimilar propositions into one
proposed amendment so that voters must vote for or against
the whole package even though they would have voted differ-
ently had the propositions been submitted separately.” State
ex rel. Loontjer v. Gale, 288 Neb. 973, 995, 853 N.W.2d 494,
510 (2014) (emphasis supplied). Logrolling is not a separate
test apart from our familiar natural and necessary inquiry; and
if the features are naturally and necessarily related, it is not
appropriate to examine the proposal for logrolling. Because I
believe the provisions at issue are related, rather than dissimi-
lar, logrolling has no application here.
Limitations on Rights Conferred.
I also disagree with the majority’s conclusion that the limi-
tations contained within subsections (6), (7), and (8) of the
NMCCA are not naturally and necessarily connected to the
general subject. According to the majority, these limitations on
the scope of the amendment represent “distinct constitutional
rights and policies” that would change the existing law of pub-
lic space, motor vehicles, correctional facilities, negligence,
employment, and insurance coverage. However, rather than
introducing a second subject, the limitations define the rights
conferred by the NMCCA by stating what the amendment does
not require. They make clear that the areas of law identified by
the majority would, in fact, not change if the NMCCA were
to become law. These provisions bear a natural and neces-
sary connection to giving individuals a constitutional right to
use medical cannabis because they define the parameters of
that right.
In analyzing these limitations, the majority finds more log-
rolling. Again, I do not believe this fits our definition of
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logrolling because the rights granted and the exceptions to
those rights are related, rather than dissimilar. In addition,
while presenting the provisions together is not logrolling, the
alternative of requiring these related provisions to be presented
separately could result in other problems for voters. There
are some measures containing multiple, related policy details
where voters’ support for one policy detail might depend on
whether another detail becomes law. Suppose, for example, that
citizens of a municipality that has previously banned dog own-
ership propose an initiative to allow for dog ownership with the
exception of pit bulls. If the general authorization of dog own-
ership and the pit bull exception must be presented separately,
a voter favorably inclined to dogs generally but opposed to pit
bulls cannot reliably express his or her preferences.
Similarly, here, there may be voters whose support for legal-
izing medical cannabis depends on whether the right will be
limited as in the NMCCA. Requiring the limitations to be sub-
mitted as separate ballot propositions will not prevent logroll-
ing; it would only prevent those voters from being able to cast
an informed vote.
Conclusion.
Courts and commentators have observed that the term “sub-
ject” as used in a single subject rule and any verbal tests that
attempt to define it are malleable. See, e.g., Advisory Opinion
to the Atty. Gen., 592 So. 2d 225 (Fla. 1991) (Kogan, J., con-
curring in part, and in part dissenting); Oregon Educ. Ass’n v.
Phillips, 302 Or. 87, 727 P.2d 602 (1986) (Linde, J., concur-
ring); Robert D. Cooter & Michael D. Gilbert, A Theory of
Direct Democracy and the Single Subject Rule, 110 Colum. L.
Rev. 687 (2010). This presents courts with a challenge. As one
court described the quandary, if the rule is applied too loosely,
it “would render the safeguards of [a single subject rule] inert.
Conversely, the requirements of [a single subject rule] must
not become a license for the judiciary to ‘exercise a pedantic
tyranny’” over efforts to change the law. PA Against Gambling
Expansion Fund v. Com., 583 Pa. 275, 296, 877 A.2d 383,
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395-96 (2005) (quoting City of Philadelphia v. Com., 575 Pa.
542, 838 A.2d 566 (2003)). To be clear, I do not believe any-
one on this court wishes to exercise a tyranny of any kind over
the initiative process. But, for the reasons I have discussed, I
am concerned that today’s decision has squeezed the concept
of single subject in art. III, § 2, such that the people’s right to
initiative has been diminished.
Obviously, nothing I have said should be taken as commen-
tary on the policy merits of legalizing cannabis for medicinal
use or whether the NMCCA is a sound means of doing so.
It would not be consistent with the role of the judiciary to
express a view on such matters. See State ex rel. Johnson v.
Gale, 273 Neb. 889, 896, 734 N.W.2d 290, 298 (2007) (“[t]his
court makes no attempt to judge the wisdom or the desirability
of enacting initiative amendments”). When legally sufficient,
however, it is the right of the people to express their views on
initiative measures by voting. Because I believe the Secretary
correctly rejected the relator’s arguments that the NMCCA was
legally insufficient, I would not keep it from the ballot.
Miller-Lerman, J., joins in this dissent.