Nebraska Republican Party v. Shively - special release, 311 Neb. 160

Background

Adam S. Morfeld, a Nebraska-licensed attorney and sitting state senator, filed as a Democratic candidate for Lancaster County Attorney; objectors (Nebraska Republican Party and Lancaster County Republican Party) challenged his ballot filing under Neb. Rev. Stat. § 23-1201.02(1), arguing he had not “practiced law actively” in Nebraska during the required two-year period.
Morfeld is executive director of Civic Nebraska and submitted an affidavit stating he routinely provides legal advice, directs/supervises Civic Nebraska’s legal work, pays licensing/MCLE costs, assisted ballot-initiative work, and advised legislative matters.
The Lancaster County election commissioner overruled the objection without detailed fact findings.
Objectors sought summary review under Neb. Rev. Stat. § 32-624 in district court and requested expedited discovery; the district judge limited review to the commissioner’s record, denied discovery, refused to expand the record, and denied the objectors’ application.
Objectors appealed to the Nebraska Supreme Court, which considered (1) whether discovery was permissible in a § 32-624 summary proceeding and (2) the meaning and application of “practiced law actively.”

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Appellate jurisdiction over § 32-624 orders	Appeal should be available to review district judge decisions arising under § 32-624 (objectors sought review).	Supreme Court has appellate jurisdiction and may hear expedited election matters.	Court has appellate jurisdiction to review a district judge’s § 32-624 order.
Availability of discovery in § 32-624 summary proceeding	Objectors: § 25-2225 allows civil discovery where mode not prescribed; discovery needed to prove factual claim.	Morfeld/commissioner: § 32-624 prescribes a summary mode; discovery would subvert summary, expedited review.	Proceeding is summary and limits discovery; denial of discovery was not an abuse of discretion.
Meaning of “practiced law” (nature vs. forum)	Objectors: focus should be on forum/object (e.g., courtroom/prosecutorial experience), limiting what counts as practice.	Morfeld: focus should be on the nature of the activity; in-house legal counseling and supervision can be practice.	Court adopted a nature-based test: practice defined by activities requiring legal knowledge/judgment, not by forum.
Whether Morfeld “practiced law actively” during the two-year period	Objectors: his duties as executive director and legislative role do not amount to routine, day-to-day legal practice needed for eligibility.	Morfeld: routinely provided legal advice, supervised counsel, performed in-house counsel functions continuously.	Court held Morfeld met the statutory requirement: "practiced law actively" means giving legal advice or services requiring legal skill on a daily or routine basis; his Civic Nebraska duties satisfied this.

Key Cases Cited

Porter v. Flick, 60 Neb. 773, 84 N.W. 262 (1900) (statute authorizing judicial review of ballot officer decisions is judicial in nature and subject to appellate review)
Nebraska Republican Party v. Gale, 283 Neb. 596, 812 N.W.2d 273 (2012) (timing and practical limits for relief under election-review statutes)
Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018) (discovery-control standard; abuse-of-discretion review)
Hall v. Progress Pig, Inc., 259 Neb. 407, 610 N.W.2d 420 (2000) (interpreting “actively” to mean frequent/constant involvement — "constantly engaged")
State ex rel. Nebraska State Bar Assn. v. Butterfield, 172 Neb. 645, 111 N.W.2d 543 (1961) (broad definition of the practice of law)
Davis v. Gale, 299 Neb. 377, 908 N.W.2d 618 (2018) (election statutes construed liberally to favor voter access)
State ex rel. Meissner v. McHugh, 120 Neb. 356, 233 N.W. 1 (1930) (characterizing the summary review nature of election-related proceedings)