“Our concern is that this will end up being a trial by ambush, which is incredibly unfair to our clients and undermines the right of the initiative.”
By Zach Wendling, Nebraska Examiner
Allegations of witness tampering surfaced this week as the latest wrinkle in the ongoing lawsuit and investigations against Nebraska’s two medical cannabis petitions.
The Nebraska Attorney General’s Office, defending Secretary of State Bob Evnen (R) in the lawsuit while also pursuing a separate challenge to the petitions, denied any wrongdoing at a Friday hearing with Lancaster County District Court Judge Susan Strong.
At that pretrial hearing, Judge Strong heard arguments on the allegation and ruled no ethical violations took place.
Strong officially divided the trial into two phases if necessary, as she outlined last week. The first trial phase will begin October 29, one week before the November election. In that phase, attorneys for John Kuehn, a former Republican state senator who initiated the lawsuit, and Evnen will need to prove that enough petition signatures were incorrectly accepted or “tainted” by fraud or malfeasance.
If successful, the case would continue, likely after the election, with the trio of ballot sponsors behind Nebraskans for Medical Marijuana able to defend any challenged signatures. The two petitions would respectively regulate and legalize medical cannabis, if voters approve.
Sydney Hayes, an attorney for the sponsors, had asked Strong to delay the trial due to “roadblocks” in receiving evidence from the Attorney General’s Office, whose civil attorneys are defending Evnen from Kuehn’s lawsuit.
Kuehn is challenging his own set of at least 17,000 signatures on both petitions, while Evnen is challenging at least 49,000 signatures on each of the campaign’s measures.
‘A trial by ambush’
Hayes said the sponsors were not formally notified until Tuesday of which petitions were specifically being challenged. She said Evnen’s attorneys have also not disclosed evidence that is part of an ongoing criminal investigation central to the civil case. Criminal charges have been filed against at least one paid petition circulator and one notary, and more charges are possible.
“Frankly, our concern is that this will end up being a trial by ambush, which is incredibly unfair to our clients and undermines the right of the initiative,” Hayes said.
Hayes said the Attorney General’s Office has “incredible power” in its many roles. Hayes alleged that law enforcement officials have contacted possible witnesses, causing a “chilling effect” on the most “salient” witnesses: notaries.
“What are they supposed to do?” a Thursday filing for the ballot sponsors states. “If they testify, they face criminal prosecution by the Attorney General’s Office for non-crimes. If they plead the Fifth, they risk adverse inferences against a campaign they have fought alongside for years.”
The sponsors alleged one civil attorney for Evnen reached out to Jacy Todd, the notary charged in Hall County, whose criminal case is ongoing. The sponsors said the state attorneys “suggested” Todd would benefit if he cooperated.
“This negates the idea that there is some sort of strict wall between the Civilian and Criminal Division of the Attorney’s General’s Office, as they’ve asserted in their objections to discovery,” Hayes said Friday. “If there was such a wall, the attorneys in this case have pierced it.”
Judge Strong said the allegation was one of “basically witness tampering,” which the Attorney General’s Office fiercely denied.
AG’s Office denies any wrongdoing
Assistant Attorney General Jennifer Huxoll said she was “more than a little frustrated” at Hayes’s “significant misrepresentation” of what occurred. She said the state never reached out to Todd, as the sponsors alleged, but did reach out to Todd’s attorney, Mark Porto.
“If that is not an exaggeration, I’ve never seen one,” Huxoll said. “That is simply not true.”
Deputy Solicitor General Zach Viglianco, the civil attorney who reached out to Todd’s attorney, told Strong it was “purely a planning call” ahead of Todd’s deposition this week. Viglianco said he asked “generic, general questions” about what Todd intended to do and never promised any benefits.
“I never spoke to Jacy Todd, and I certainly did not make any representations on behalf of the Attorney General’s Office, because, frankly, I don’t have the authority to make any representations regarding criminal matters,” Viglianco said.
Porto has submitted a filing in Todd’s defense stating that no Nebraska notary has ever been charged in a criminal manner as Todd has been for 24 counts of “official misconduct,” a misdemeanor. That case continues with Porto asking for the charges to be dropped.
Hayes said Viglianco’s call could give the “appearance of impropriety,” even if that was not the intent.
Huxoll said the allegation was “a waste of the court’s time” and that it was “offensive” to suggest Viglianco engaged in unlawful or unethical conduct. Huxoll said she feels the civil bureau, which she leads, has “been as above board as we can.”
Strong said she would hope that no one is interviewing potential witnesses involved in criminal investigations unless their attorney is present.
Criminal investigation materials
Huxoll said the Attorney General’s Office has eight independent bureaus, which each carry out specific legal obligations for the State of Nebraska.
In a complex case such as this one, Huxoll said, it’s not uncommon for the bureaus to overlap, particularly when there is “a question of public official corruption,” in this case, notaries.
However, the conversations in the criminal investigation were distinct and separate from the civil lawsuit, Huxoll said, arguing the materials are not being used in the case.
“You cannot hamstring the Attorney General’s Office on one side by trying to subvert discovery and coming in on the backside through our civil case,” Huxoll said.
Strong agreed with Huxoll’s argument but reminded all attorneys that no evidence could be used at trial unless it was disclosed ahead of time.
The ballot sponsors’ attorneys could subpoena for information, Strong said, but adding she was “not sure where that will go.”
Trial to continue as planned
Having denied the ballot sponsors’ request to access the criminal investigative materials, Strong also denied a request to delay the trial.
Anne Mackin, an Austin-based attorney representing Kuehn in the lawsuit, said proceeding as planned was important before “potentially invalid votes” are tabulated, publicized or certified.
“I would think that there would be an interest from everyone in ensuring that,” Mackin said.
Hayes and the ballot sponsors’ attorneys have repeatedly said such a ruling in the trial’s first phase, so close to the election and either way it comes down, could cause a “real risk of voter confusion.”
The election is November 5. Early voting, including on the cannabis petitions, has already begun.
Viglianco said if the challenges are unsuccessful, Evnen would have an “obligation” to alleviate any “voter confusion,” such as in public statements and ordering votes to be counted.
“There is still value to your providing a declaration about the validity and the legal sufficiency of these measures before the general election,” Viglianco told Strong. “Nebraskans deserve to know, one way or the other, whether the allegations are serious or not.”
The trial is set to begin October 29 and could last through November 1, if needed. Strong would issue her ruling shortly after. Phase two of the trial, if needed, would begin at a later point this fall.
This story was first published by Nebraska Examiner.
Photo courtesy of M a n u e l.
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