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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 represents 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/18/2020 09:07 AM CDT
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9. ____: ____. A preelection challenge based on the procedural requirements 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 provisions dealing with voters’ power of initiative liberally to promote the 

democratic process.

12. Constitutional Law: Statutes: Initiative and Referendum. 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. 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 connection test, where 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.

18. ____. The controlling factors in an inquiry under the natural and necessary 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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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 declaratory 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 determine 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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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 serious medical conditions to produce and medicinally use cannabis, subject to a recommendation by a licensed physician or 

nurse practitioner. A Nebraska resident challenged the decision, 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 election ballot. Nebraskans for Sensible Marijuana Laws, a ballot question committee, as well as two state senators, Adam 

Morfeld and Anna Wishart, sponsored the petition. The objective of the petition was “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 physician or 

nurse practitioner.”
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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) establish 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 recommended 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 cannabis for persons who qualify under the first two subsections; (5) 

subject persons’ rights to use cannabis under the first two subsections 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 products, and cannabis-related equipment for serious medical conditions if recommended by a licensed physician 
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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 authorized 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 conditions 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 possession 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 certify 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 disputing 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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NMCCA had only one general subject—“to legalize the use of 

cannabis in this state for persons with serious medical conditions”—and that any other purposes were naturally and necessarily 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 competent jurisdiction.”

On August 28, 2020, Wagner filed with this court an application for leave to commence an original action. According to 

Wagner, this court’s review of Evnen’s decision was necessary 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 election 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 sponsors 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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IV. STANDARD OF REVIEW

[1,2] Questions of justiciability and of constitutional interpretation 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 extraordinary 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 justiciable. 5 Ripeness is a justiciability doctrine that courts consider 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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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 sufficiency 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 natural 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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self-imposed [requirements of procedure in exercising that 

power] are of equal constitutional significance.” 14

[14,15] One constitutional requirement of the voter ballot 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 primary 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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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 objectives 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 maximizing 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 expanding 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 characterized 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 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. 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 recommendation 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 practitioner, has the right to use, possess, access, purchase, and 

safely and discreetly produce an adequate supply of cannabis, 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 practitioner and with the permission of a parent or legal guardian with responsibility for health care decisions of such 

individual, has the right to use cannabis, cannabis products, 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) delegates authority to the Legislature and administrative agencies 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 sponsors: “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 physician 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 produce cannabis, cannabis products, and cannabis-related equipment 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 purpose. Subsections (3) and (4) state:

(3) The rights protected in subsections (1) and (2) of 

this section include the right to access or purchase cannabis, 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 cannabisrelated 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 subsection (5) of this section.

By this text, subsections (3) and (4) express a different primary purpose than subsections (1) and (2). Instead of affording 

certain persons a constitutional right to produce and medicinally 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 immunize 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 significantly 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 medicinally 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 propositions 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 initiatives 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 subject.” 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 subsections (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, subsection (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 general subject.

[24] Second, the NMCCA’s secondary purpose is not necessarily 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 medicinally. 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 constitutional 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,” MerriamWebster.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 scenario 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 naturally 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 subsections 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 cannabis that naturally relates to these objects, nor would the 

constitutional right of producing and medicinally using cannabis 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 negligence 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 medicinally 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 disapproved 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, negligence, 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 declaratory 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 conventional remedy or, for other reasons, is not conveniently 

amenable to usual remedies. 51 Thus, although declaratory judgment 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 application for a writ of mandamus is another such equally serviceable 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 serviceable, 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 nondiscretionary duty to determine the legal sufficiency of ballot measures 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 ballot. 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 protect 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 produce 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 secondary 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 independently 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 legislation 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 subject.” As the majority opinion describes, we have traditionally 

followed what we have dubbed the natural and necessary connection 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 singleness 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 purpose 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 medicinally 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 primary 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 cannabis 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 relationship test. Instead, I agree with the analysis of the Secretary on 

this point.

The Secretary found there was a natural and necessary connection 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 meaningful 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 individuals 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 without 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 general purpose. There, we concluded that a proposed ordinance 

imposing different requirements on a variety of different entities—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 majority 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 necessary 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 introduce a prohibited second subject. And yet our articulation of 

the natural and necessary connection test expressly contemplates 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 natural 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 funding 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 differently 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 dissimilar, logrolling has no application here.

Limitations on Rights Conferred.

I also disagree with the majority’s conclusion that the limitations 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 public 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 necessary 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 logrolling. 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 ownership propose an initiative to allow for dog ownership with the 

exception of pit bulls. If the general authorization of dog ownership 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 legalizing medical cannabis depends on whether the right will be 

limited as in the NMCCA. Requiring the limitations to be submitted as separate ballot propositions will not prevent logrolling; it would only prevent those voters from being able to cast 

an informed vote.

Conclusion.

Courts and commentators have observed that the term “subject” 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., concurring in part, and in part dissenting); Oregon Educ. Ass’n v. 

Phillips, 302 Or. 87, 727 P.2d 602 (1986) (Linde, J., concurring); 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 anyone 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 commentary 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.