Nebraska Judge Allows Criminal Charges To Go Forward Against Notary Public For Voter-Passed Medical Marijuana Initiatives
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“A notary public is a public servant that is subject to civil penalties and criminal penalties if warranted.”
By Zach Wendling, Nebraska Examiner
The District Court of Hall County decided Tuesday to allow criminal charges against a notary public for “official misconduct” to proceed, overturning a lower court decision.
District Judge Andrew Butler, in a 10-page opinion, reversed a previous motion to quash against 24 counts of “official misconduct”—a Class II misdemeanor—against Jacy Todd of York, who was a notary for the successful ballot measures to legalize and regulate medical cannabis last year. Todd is believed to be the first notary criminally charged in this way.
Todd is accused of allegedly notarizing petition pages outside the presence of a petition circulator, Michael Egbert of Grand Island, on 24 different dates, each leading to a separate criminal charge. Todd has repeatedly denied all allegations.
Egbert admitted to using a phone book to illegally add voters to petition pages. He accepted a plea deal, reducing a Class IV felony charge to a Class I misdemeanor and $250 fine. Egbert said during a Lancaster County trial against the ballot measures that he has a mental condition that affects his memory.
Butler said he had to view the appeal from Hall County Attorney Marty Klein, who is working with the Nebraska Attorney General’s Office in the case, “in the light most favorable” to the State of Nebraska because Todd and his attorney have motioned to end the case.
More facts are needed, Butler argued, and the “extreme outcome” of a motion to quash should be “rare.”
“Granting the motion to quash was not appropriate at that time when considering the facts most favorable to the nonmoving party,” Butler wrote. “Further, and most importantly to the court, a notary public is a public servant that is subject to civil penalties and criminal penalties if warranted.”
‘Integrity of our elections’
In a statement, the AG’s Office expressed gratitude for Butler’s decision.
“Notaries are public officials who play an important role in our election process to ensure that the integrity of our elections are secured,” spokesperson Suzanne Gage said in a statement.
As the AG’s Office considered an appeal late last year, attorney Mark Porto representing Todd said that “a series of politically orchestrated (and false) Class II misdemeanors are among the least scary and intimidating things” that Todd, a veteran, had ever seen.
Porto did not immediately respond Tuesday to a request for comment.
Public servant or public duties?
Hall County Judge Alfred Corey in November ruled that notary publics were not public officials and agreed with the “motion to quash” from Todd and his attorney, Mark Porto.
Corey said that while important, notarial duties “hardly implicate responsibilities that go to the heart of representative government” and were “essentially clerical and ministerial.”
Butler said he did not see a distinction between different definitions of “public servant” across state laws and that notaries are “officers” who are appointed by the Nebraska Secretary of State’s Office to hold office.
“This language clearly shows that a notary public is a public servant as an officer,” Butler wrote.
‘Voice of its residents’
Butler questioned the extent of resources being used to pursue such criminal charges and the number of such charges “when looking at the current climate of the state and voice of its residents.”
Nearly 71 percent of voters voted to legalize medical cannabis, and about 67 percent to regulate it.
“However, those decisions are left to another entity,” Butler wrote. “The court simply is tasked with applying the laws as written and, in this matter, the motion to quash should have been denied and the matter considered by a finder[s] of fact.”
The case returns to Hall County Court, unless appealed up to the Nebraska Court of Appeals.
This story was first published by Nebraska Examiner.
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