Zach Wendling
GRAND ISLAND, Neb. — Prosecutors intend to appeal the dismissal of criminal charges against a notary for Nebraska’s medical cannabis petitions who asks them “to stop playing games” and embrace voter approval.
A spokesperson for the Nebraska Attorney General’s Office, which is coordinating with the Hall County Attorney’s Office in the criminal case, said in a Tuesday text that prosecutors intend to appeal Hall County Judge Alfred Corey’s dismissal of all 24 charges of “official misconduct” against Jacy Todd of York.
Prosecutors have accused Todd of improperly notarizing petition pages on 24 dates for petition circulator Michael Egbert, alleging that both men were not in the same room while the pages were notarized. Todd has denied those allegations.
A Monday statement from Todd’s Grand Island attorney, Mark Porto, states that Todd is an Army medic veteran who served in combat during Operation Desert Shield and Operation Desert Storm and experienced “significant” bouts of post-traumatic stress disorder from service.
“A series of politically orchestrated (and false) Class II misdemeanors are among the least scary and intimidating things Mr. Todd has ever encountered,” the statement reads.
Porto said Tuesday, upon learning of the expected appeal, that “it’s disappointing, but not particularly surprising.”
‘Unprecedented’ criminal charges
Corey, in his opinion, pointed to the U.S. Supreme Court and said that while notaries “greatly assist others, notary publics are not public servants who are performing governmental functions.”
He noted that the Nebraska Secretary of State’s Office already has an administrative process for malfeasance allegations.
“The State attempts to differentiate what criminal activity would be as opposed to noncriminal activity,” Corey wrote. “The Court rejects this argument.”
Multiple attorneys defending the campaign and other notaries for the ballot measures have said the criminal charges against Todd are brand-new in Nebraska. Attorney George Dungan, a state senator, described the charges as “relatively unprecedented, if not entirely unprecedented.” A state official who oversees notaries, David Wilson Jr., testified under oath to the same.
Corey said he couldn’t find any Nebraska cases similar to Todd’s criminal charges.
Pending Lancaster County court case
Egbert was accused of a Class IV felony but, upon testifying against the Nebraskans for Medical Marijuana campaign in Lancaster County District Court and cooperating with law enforcement, his charge was reduced to a Class I misdemeanor and a $250 fine.
Egbert, who is also a veteran, has said he used a phone book to illegally add voters and later forge their signatures.
During the Lancaster County trial, Egbert said that he has a mental condition that affects his memory but that prosecutors told him that whatever he said wouldn’t be used against him.
The ballot sponsors’ attorneys last month presented an affidavit from Porto that the state’s civil attorneys had not affirmatively said that Todd would benefit from cooperating but instead “suggested” that Todd’s cooperation could aid his criminal case. Todd said he had “no interest” in cooperating and requested that the AG’s Office not contact Porto on his behalf again.
Lancaster County District Judge Susan Strong heard arguments on those allegations and said no ethical violations had occurred.
Strong has not yet ruled in the broader case seeking to invalidate the measures to legalize and regulate medical cannabis. The case is built upon allegations of widespread “notarial malfeasance” to invalidate tens of thousands of petition signatures that got the measures onto the ballot.
The ballot sponsors had no comment on the Egbert or Todd criminal cases.
‘Stop playing games’
The legalization measure passed with 71% voter approval, while the regulatory measure passed with 67% approval in the Nov. 5 general election.
The results are set to be certified in December; the measures would take effect within 10 days of certification.
Porto’s statement says that based on Todd’s service and that of fellow soldiers, Todd has seen firsthand the benefits that medical cannabis can provide and has been a “tireless advocate” for legalization.
“We are grateful that Judge [Alfred] Corey saw this case for what it was and promptly dismissed the case because notary malfeasance, even though false in this instance, is not even a crime under Nebraska law,” Porto said.
“The voters in this state have now spoken overwhelmingly in favor of medical cannabis and it is time that our elected leaders respect the voters enough to stop playing games and instead see to it that their clear and unambiguous demand for medical cannabis is quickly implemented through appropriate laws and regulations.”