Nebraska Republican Party v. Shively - special release
971 N.W.2d 128
Neb.2022Background
- Adam S. Morfeld filed as a Democratic candidate for Lancaster County Attorney; objectors (Nebraska Republican Party and Lancaster County Republican Party) challenged his eligibility under Neb. Rev. Stat. § 23-1201.02(1) for failing to have “practiced law actively” in Nebraska during the preceding two years.
- Morfeld has been executive director of Civic Nebraska since 2012; his affidavit says he routinely provides legal advice, supervises internal and external counsel, oversees litigation-related activity, supports ballot committees, maintains MCLE and licensure, and advises on contracts, nonprofit compliance, and employment matters.
- Lancaster County Election Commissioner David J. Shively overruled the objection and placed Morfeld on the primary ballot.
- Objectors sought summary judicial review under Neb. Rev. Stat. § 32-624, requested discovery and to expand the evidentiary record; the district court limited review to the record before the commissioner, denied discovery, and concluded Morfeld “practiced law actively.”
- The objectors appealed; the Nebraska Supreme Court addressed (1) appellate jurisdiction over § 32-624 orders, (2) whether discovery is appropriate in § 32-624 summary proceedings, and (3) the meaning and application of “practiced law actively.”
Issues
| Issue | Plaintiff's Argument (Objectors) | Defendant's Argument (Morfeld) | Held |
|---|---|---|---|
| Whether discovery is available in a § 32-624 summary proceeding | § 25-2225 and general civil procedure authorize discovery; should be allowed to probe factual claim that Morfeld did not practice law actively | § 32-624 prescribes a summary, limited procedure; broad discovery would undermine the statute’s summary nature | Court: Discovery properly denied; summary § 32-624 review is limited and discovery would be inconsistent with its purpose |
| Proper interpretation of “practiced law” (nature of act vs. forum/object) | Practice should be judged by forum/object (e.g., prosecutorial or courtroom experience), not merely activity type | Focus should be on the nature of the activity — whether it applies legal knowledge and skill for others | Court: “Practiced law” is defined by the nature of the activity (application of legal knowledge/skill), not restricted to a particular forum or litigation role |
| Meaning of “actively” in the phrase “practiced law actively” | Requires courtroom or daily prosecutorial practice; higher, specific prosecutorial engagement | Means routine or regular engagement — frequency/extent of involvement (day-to-day or routine) | Court: “Actively” refers to routine/daily frequency; i.e., giving legal advice or rendering legal services requiring legal skill on a daily or routine basis |
| Whether Morfeld satisfied “practiced law actively” for the relevant 2-year period | His in-house and policy roles do not constitute active practice for purposes of county attorney eligibility | His sworn affidavit shows routine, continuous legal advice and supervision for Civic Nebraska and related work; that satisfies the statute | Court: Morfeld’s routine in-house legal work and supervision sufficiently constitute practicing law actively; he meets § 23-1201.02 qualifications |
Key Cases Cited
- Porter v. Flick, 60 Neb. 773, 84 N.W. 262 (1900) (statute authorizing summary review of ballot objections is judicial and supports appellate review)
- Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018) (trial court’s discovery decisions reviewed for abuse of discretion)
- Hall v. Progress Pig, Inc., 259 Neb. 407, 610 N.W.2d 420 (2000) (interpreting “actively” to mean frequent or daily engagement)
- State ex rel. Nebraska State Bar Assn. v. Butterfield, 172 Neb. 645, 111 N.W.2d 543 (1961) (broad definition of “practice of law” includes counseling and a variety of nonlitigation services)
- Davis v. Gale, 299 Neb. 377, 908 N.W.2d 618 (2018) (election statutes must be liberally construed to favor ballot access)
- State, ex rel. Meissner v. McHugh, 120 Neb. 356, 233 N.W. 1 (1930) (analogy of § 32-624 proceedings to mandamus and summary judicial review)