Nebraska Attorney General Mike Hilgers has been a vocal opponent of synthetic marijuana, such as Delta-8, and the medical marijuana ballot measures that were overwhelmingly approved by voters last fall. Nebraska Public Media’s Jackie Ourada spoke with Hilgers on his strong marijuana opposition, the ongoing Perkins County Canal fight with Colorado, and what’s next for him as his first term winds down.
Jackie Ourada: You’ve made synthetic cannabis and medical cannabis some of your top targets since being elected as attorney general. What’s your reasoning behind going after synthetic or medical marijuana, even if it’s supported by voters or consumers?
Mike Hilgers: I didn’t run on Delta-8. I saw the shops that are around the state and assumed, like most Nebraskans, that they were filled with products that maybe aren’t good for you, maybe or not, but certainly wouldn’t be illegal and wouldn’t cause all of the harms that we’ve seen. But what I promised Nebraskans was that I was going to build a great team, and we’re going to follow our nose and pick the fights, whether I ran on it or not. And on medical marijuana, there’s really two things to emphasize. Number one, and I’ve been very clear about this even when I was in the Nebraska Legislature, is that I don’t think it’s good public policy, but as attorney general, public policy is not my domain in the same way as it was as a legislator. The domain for public policy, really, is the people through the petition process or the Legislature. But here is my concern as attorney general, and I’ll give you two. The first is I have to defend the Constitution, and the United States Constitution includes a very clear supremacy clause that says the federal law in certain limited circumstances trumps state law. The federal government has said, and has not changed their position, that marijuana is a Schedule 1 drug, which means it has no, according to the federal government, no medicinal upside at all. Highly addictive, leads to lots of downsides. In that world, it has been my view consistently for years, and by the way, the view of this office, even before I became attorney general, that the sale of marijuana — medicinal or otherwise — is is not lawful, and therefore, is unconstitutional. So as the attorney general, my job is to enforce the Constitution. I’ve made that very clear. But the second issue, and the reason why we’re involved in the litigation that we’re involved in, is I am, in some ways, a referee and an enforcer of the election laws of the State of Nebraska. We have to ensure that our elections are run appropriately and correctly, as we should all agree that would be important for us to have. Because especially when it comes to petitions… we have to ensure that, that process that gets to the people for the vote, no matter what the vote is, is done lawfully. And I’ll give you an analogy, if you’re at the end of a game and someone kicks a field goal, and it’s a 60-yard field goal, and everyone goes nuts because it’s going to win the game, and it goes through the uprights, but one of the offensive linemen, or one of the offensive players clearly jumped offsides, or had a false start, or clearly had a penalty, and the ref saw that. Everyone understands that could not have counted. And in fact, it would be a dereliction of duty for that referee to see the penalty and say, ‘Well, I’m not going to call it because I don’t want to. They kicked the long field goal. Let’s just let them have it. I think it is my fiduciary responsibility to Nebraskans to follow the evidence in the law. And what we found, I thought, was worth fighting for. We thought we needed to do it here, and we’re litigating all the way to the Nebraska Supreme Court.
Ourada: The signatures that were thrown out — they weren’t enough. The petition organizers still collected enough signatures to make the ballot.
Hilgers: So we had a trial last fall, and the district court found that not enough signatures had been — the district court agreed with our office and the Secretary of State that certain signatures should have been tossed — and the district court also found, to your point, that not enough signatures were tossed at the district court level for the issue to be taken off the ballot. You are correct on that, we think this is why we’re appealing, that there are errors of law that need to be addressed by the Nebraska Supreme Court, that if we are correct, we’ll actually take the signatures underneath the threshold required to be put on the ballot.
Ourada: You don’t think the Secretary of State’s Office should have cleared the petition to be circulated?
Hilgers: Oh, listen, we got to be very precise. The Secretary of State has something at the very beginning of the process when they look at the petitions and sort of hand them out. I’ve take no position on that. [I] take no position on the initial circulation of the petitions, at the very outset of the process. That’s not something we’ve weighed in on. The next time the Secretary of State has an opportunity to weigh in, is when they certified for the ballot, and the Secretary of State made the best decision that he could have, given the evidence that he had, and he was very clear. He said, ‘Look, I’m going to certify this with the signatures, but it looks like there’s some wrongdoing that we should look into.’ I’m not the elected Secretary of State. I’m not going to second-guess that decision. He made the best decision that he could have. No problem with that. What I’m saying now is, it’s in the hands of the courts. By the way, there is precedent for even if something passes, if it wasn’t this, if they did not follow the correct process to get it on the ballot, even if it passes, that law is as if it was never on the ballot in the first place. And all we’re saying is, at the end of the day, if you want to kick a 60-yard field goal, 65-yard field goal, game-winning field goal, that’s great, but we have to follow the rules. We have to follow the law. It has to be done the right way, or it shouldn’t count — just like that field goal shouldn’t count, in the football context.
Ourada: I read your recent op-ed with Senator Pete Ricketts about encouraging the legislature to not essentially do anything with the law that was passed. Where do you want to see that go forward, just die in the water? Even though voters did overwhelmingly vote to pass it?
Hilgers: There is no obligation the Legislature has to act at all. And if you are being true to the will of the people, what you would say is, ‘We’re going to let the people’s will, that they passed by statute, take into effect. And by the Legislature not acting, that’s all that they’re doing. So if the Legislature does not act, then the people’s statute, which is in effect today, that they voted on, is the thing that’s the law of the State of Nebraska. I could think of actually nothing more directly pure to the people’s will than actually just letting the thing that they passed take into effect and go forward.
