Nebraska Republican Party v. Shively - special release , 311 Neb. 160 ( 2022 )

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www.nebraska.gov/apps-courts-epub/
06/10/2022 01:07 AM CDT
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NEBRASKA REPUBLICAN PARTY v. SHIVELY
Cite as 311 Neb. 160The Nebraska Republican Party and the Lancaster
County Republican Party, appellants, v. David J.
Shively, in his official capacity as Lancaster
County election commissioner, and Adam S.
Morfeld, interested party, appellees.
___ N.W.2d ___
Filed March 14, 2022. No. S-22-132.
1. Jurisdiction: Statutes. Subject matter jurisdiction and statutory inter-
pretation present questions of law.
2. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
3. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
4. Evidence: Appeal and Error. Generally, the control of discovery is a
matter for judicial discretion, and decisions regarding discovery will be
upheld on appeal in the absence of an abuse of discretion.
5. Appeal and Error. In an appeal from a proceeding under Neb. Rev.
Stat. § 32-624 (Reissue 2016), a trial court’s factual findings have the
effect of a verdict and will not be set aside unless clearly erroneous.
6. Judgments: Appeal and Error. In reviewing a judge’s order under
Neb. Rev. Stat. § 32-624 (Reissue 2016), an appellate court does not
reweigh evidence, but considers the evidence in the light most favorable
to the successful party and resolves evidentiary conflicts in favor of the
successful party, who is entitled to every reasonable inference deducible
from the evidence.
7. ____: ____. Regarding a question of law in an appeal from an order
made pursuant to Neb. Rev. Stat. § 32-624 (Reissue 2016), an appellate
court has an obligation to reach a conclusion independent from a judge’s
conclusion in an order under review.
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Cite as 311 Neb. 1608. Jurisdiction: Appeal and Error. It is the duty of an appellate court to
determine whether it has jurisdiction over the matter before it, irrespec-
tive of whether the issue is raised by the parties.
9. Constitutional Law: Jurisdiction: Appeal and Error. Except in
those cases wherein original jurisdiction is specifically conferred by
Neb. Const. art. V, § 2, the Nebraska Supreme Court exercises appel-
late jurisdiction.
10. Courts: Jurisdiction: Legislature: Appeal and Error. In order for the
Nebraska Supreme Court to have jurisdiction over an appeal, appellate
jurisdiction must be specifically provided by the Legislature.
11. Constitutional Law. Neb. Const. art. II, § 1(1), divides the powers
of the government into three departments—legislative, executive, and
judicial—and dictates that no person or collection of persons being
one of these departments shall exercise any power properly belong-
ing to either of the others except as expressly directed or permitted in
this Constitution.
12. Courts: Jurisdiction: Legislature: Appeal and Error. The Legislature
has given the Nebraska Supreme Court appellate and final jurisdiction
of all matters of appeal and proceedings in error which may be taken
from the judgments or decrees of other courts in all matters of law, fact,
or equity.
13. Final Orders: Appeal and Error. Neb. Rev. Stat. § 25-1911 (Reissue
2016) authorizes appellate review of a final order made by the dis-
trict court.
14. Courts: Judges: Statutes: Words and Phrases. The word “court”
as used in Neb. Rev. Stat. § 25-1911 (Reissue 2016) has always been
construed to mean, not only the tribunal over which a judge presides,
but the judge himself or herself when exercising, at chambers, judicial
power conferred by statute.
15. Appeal and Error. A party cannot complain of error which the party
has invited the court to commit.
16. ____. Appellate courts do not generally consider arguments and theories
raised for the first time on appeal.
17. ____. An appellate court does not consider errors which are argued but
not assigned.
18. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
19. Statutes: Voting. Statutes relating to election law must be liberally
construed so as to promote, rather than defeat, candidacy for the pri-
mary election.
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Cite as 311 Neb. 16020. Statutes. Statutory interpretation begins with the text, and the text is to
be given its plain and ordinary meaning.
21. Statutes: Appeal and Error. An appellate court will not resort to inter-
pretation of statutory language to ascertain the meaning of words which
are plain, direct, and unambiguous.
22. Statutes: Legislature. It is a fundamental canon of statutory construc-
tion that words generally should be interpreted as taking their ordinary
meaning at the time the Legislature enacted the statute.
23. Attorneys at Law: Words and Phrases. As used in Neb. Rev. Stat.
§ 23-1201.02(1) (Reissue 2012), “practiced law actively” means
engaged in giving advice or rendering such service as requires the use
of any degree of legal knowledge or skill and doing so on a daily or
routine basis.
24. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
25. Statutes. It is not within the province of the courts to read meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
Appeal from the District Court for Lancaster County: Kevin
R. McManaman, Judge. Affirmed.
David A. Lopez and Amanda L. Wall, of Husch Blackwell,
L.L.P., for appellants.
Randall L. Goyette and Christopher M. Schmidt, of Baylor
Evnen, L.L.P., for appellee David J. Shively.
Andre R. Barry and Jessica K. Robinson, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for appellee Adam S.
Morfeld.
Miller-Lerman, Cassel, Funke, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
Adam S. Morfeld filed for election as Lancaster County
Attorney. Objectors sought to exclude him from the primary
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Cite as 311 Neb. 160election ballot, 1 on the ground that he had not “practiced law
actively” for the statutory period. 2 The election commissioner
denied the objection. The objectors then filed an application to
a district court judge under § 32-624. After the judge denied
the application and requests to conduct discovery and expand
the record, this appeal followed. 3
Due to the summary nature of a proceeding under § 32-624,
we find no abuse of discretion by the district court in denying
discovery. Based on the plain and ordinary meanings of “prac-
ticed law” and “actively,” we conclude that Morfeld’s routine
activities in connection with his employment as executive
director fall within the meaning of “practiced law actively” and
that he has engaged in such activities for the relevant 2-year
period. Because we conclude that Morfeld satisfies the statu-
tory qualifications to seek nomination for the office of county
attorney, we affirm the order of the district court.
BACKGROUND
Statutory Provisions Regarding
County Attorney Candidates
With certain exceptions, 4 a county attorney is elected in
each county at the statewide general election every 4 years. 5
Candidates for the office of county attorney must meet qualifi-
cations contained in §§ 23-1201.01 and 23-1201.02. 6 The latter
statute sets forth requirements for one seeking nomination in a
county such as Lancaster County:
(1) No person shall seek nomination or appointment
for the office of county attorney . . . , nor serve in
1
See Neb. Rev. Stat. § 32-624 (Reissue 2016).
2
See Neb. Rev. Stat. § 23-1201.02(1) (Reissue 2012).
3
See Neb. Rev. Stat. § 25-1911 (Reissue 2016).
4
See Neb. Rev. Stat. § 23-1201.01 (Reissue 2012).
5
See Neb. Rev. Stat. § 32-522 (Reissue 2016).
6
See id.- 164 -
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Cite as 311 Neb. 160that capacity, unless he or she has been admitted to the
practice of law in this state for at least two years next
preceding the date such person would take office and has
practiced law actively in this state during such two-year
period, except that if no person who meets the require-
ments of this subsection has filed for or sought such
office by the filing deadline for nomination or by the
deadline for applications for appointment, the provisions
of this subsection shall not apply to any person seeking
such office.
(2) No person shall seek nomination or appointment for
the office of county attorney, nor serve in that capacity,
unless he or she has been admitted to the practice of law
in this state. 7
The italicized portion is the focus of this appeal.
Candidate Filing Form
Morfeld timely filed to be a Democratic candidate for
Lancaster County Attorney in the primary election to be held
on May 10, 2022. Morfeld’s signature appeared below the stat-
utorily required statement: “I hereby swear that I will abide by
the laws of the State of Nebraska regarding the results of the
primary and general elections, that I am a registered voter and
qualified to be elected, and that I will serve if elected.” 8 Unless
objections are made, a candidate filing form which appears
to conform with Neb. Rev. Stat. §§ 32-606 (Supp. 2021) and
32-607 shall be deemed to be valid. 9
Objection
An objection ensued. The Nebraska Republican Party and
The Lancaster County Republican Party (collectively the
objectors) challenged Morfeld’s candidate filing form. In a
7
§ 23-1201.02 (emphasis supplied).
8
See Neb. Rev. Stat. § 32-607 (Cum. Supp. 2020) (emphasis supplied).
9
See § 32-624.
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Cite as 311 Neb. 160letter to David J. Shively, the Lancaster County election com-
missioner, the objectors alleged that Morfeld had not practiced
law and had not done so actively during the 2-year period ref-
erenced in § 23-1201.02(1). The letter also set forth the objec-
tors’ legal argument.
Morfeld’s Response and Affidavit
Morfeld responded to the objection by letter, which supplied
his legal argument. He also provided an affidavit regarding
his qualification to seek nomination. Morfeld was admitted
to the practice of law in 2012 and met all the requirements to
be licensed in the State of Nebraska, including the “MCLE”
(which we understand to mean mandatory continuing legal
education 10) requirements of the Nebraska Supreme Court.
Morfeld’s affidavit stated that he has been employed con-
tinuously full time as the executive director of Civic Nebraska,
which is an organization having over 75 employees and three
offices in Nebraska. As executive director, Morfeld routinely
provides legal advice, direction, and supervision to Civic
Nebraska. Morfeld further stated that he personally provides
legal advice to voters and day-to-day supervision of Civic
Nebraska’s election attorney concerning such advice. Civic
Nebraska pays for Morfeld’s annual license fees, MCLE costs,
and professional liability insurance as an attorney.
The affidavit stated that in 2020 and 2021, Civic Nebraska
supported challenges to a Nebraska statute providing for the
appointment of election commissioners. Morfeld stated in his
affidavit that in connection with the effort, Civic Nebraska
supported cases filed in Hall and Lancaster Counties and sub-
mitted an amicus brief on the issue in the Nebraska Supreme
Court. Morfeld stated that he oversaw those activities on behalf
of Civic Nebraska, helped to develop and evaluate legal posi-
tions and arguments, and directed and supervised the work of
internal and external counsel for Civic Nebraska.
10
See Neb. Ct. R. § 3-401.1.
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Cite as 311 Neb. 160According to Morfeld’s affidavit, on a routine basis and
continuously since 2012, he provides the type of legal advice
to Civic Nebraska that in-house counsel provides in other
companies, including ongoing legal advice to the corporation
regarding contracts, leases, “501(c)(3) and 501(c)(4)” compli-
ance, and matters of employment law.
His affidavit also stated that Civic Nebraska is currently
opposing a voter identification ballot initiative and that Morfeld
is providing legal advice in connection with that effort.
Morfeld stated that between December 2018 and October
2021, he was a cochair of Nebraskans for Medical Marijuana,
a ballot question committee. He was involved in the formation
of a new ballot question committee, called NMM, in November
2021. He is a cosponsor of two ballot initiatives for the com-
mittee, one involving removing penalties for medical cannabis
and another addressing regulation of cannabis establishments.
Morfeld stated that he has provided legal advice to these ballot
question committees and to the cosponsor of the ballot initia-
tives on compliance with Nebraska laws.
According to the affidavit, Morfeld has also served as a state
senator in the Nebraska Legislature since 2014. He stated that
as a member of the Legislature’s Judiciary Committee since
2015, he uses his legal training and skills as a licensed attor-
ney. He has drafted, introduced, and passed into law numer-
ous pieces of legislation, and he has provided legal analysis
and assistance to legislative staff and other state senators. In
2021, Morfeld was appointed to the Legislature’s Redistricting
Committee, where he has provided legal advice to other state
senators on the constitutionality and legality of proposed redis-
tricting maps.
Objectors’ Reply and Affidavit of Counsel
The objectors sent a reply letter to the commissioner
to address Morfeld’s explanation regarding his practice of
law. Their attorney submitted an affidavit with two exhib-
its attached.
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Cite as 311 Neb. 160One was a copy of a Nebraska Accountability and Disclosure
Commission “Form B-1” filed by the NMM ballot question
committee. It showed that for the period ending October 26,
2021, NMM had paid $15,000 for “Legal Research” from the
“Fraser Stryker PC LLO” law firm.
The other was a copy of a complaint filed in the district
court for Hall County, Nebraska, concerning a challenge to
the Nebraska statute providing for the appointment of election
commissioners. The complaint was signed only by an attorney
with the Cline Williams Wright Johnson & Oldfather, L.L.P.,
law firm.
Commissioner’s Determination
On February 9, 2022, the commissioner overruled the objec-
tion. His determination did not contain findings of fact or spe-
cific citations of law. The commissioner stated that “in inter-
preting the relevant statutory language in the manner directed
by recent precedent and applying this language to the evidence
submitted to me, I conclude that . . . Morfeld meets the statu-
tory requirements to be placed on the ballot.”
Application to District Court Judge
The next day, the objectors filed an application for a spe-
cial proceeding relating to elections in the district court for
Lancaster County. They requested a “summary order” under
§ 32-624. The objectors alleged that Morfeld was not qualified
as a matter of law or fact to appear on the ballot for the office
of Lancaster County Attorney. They sought an order compel-
ling the commissioner to sustain their objections and remove
Morfeld’s name from the May 2022 primary election ballot.
Request for Discovery
In connection with the objectors’ motion for expedited case
progression, they requested discovery on the factual issue
of how Morfeld practiced law actively during the applicable
statutory period. The objectors proposed that they serve written
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Cite as 311 Neb. 160discovery on Morfeld by February 11, 2022, that Morfeld be
ordered to respond by February 21, and that they take Morfeld’s
deposition on or about February 24.
On February 11, 2022, the court heard the motion for expe-
dited case progression. Four days later, the court entered an
order. It stated that the nature of its review under § 32-624
was not readily apparent. But it reasoned that “importing all
of Chapter 25 into § 32-624—including the civil discovery
rules authorized by the statutes—is antithetical to the summary
nature of judicial review under § 32-624.” The court ordered
that at a final submission hearing on February 24, items in the
record before the commissioner would be offered and any party
wishing to offer evidence that was not presented to the com-
missioner would be allowed to make an offer of proof.
Final Submission Hearing
As scheduled, the court held a hearing “to make a record of
evidence and then proceed with some argument.” The objec-
tors informed the court of their “standing objections” as to the
disallowance of discovery and presentation of evidence beyond
the election commissioner’s record. The objectors offered
exhibits and requested to call Morfeld as a witness at the hear-
ing. Morfeld objected, and the court sustained the objections.
The objectors made an offer of proof. The court again rejected
the exhibits propounded in the offer of proof and the request to
call Morfeld as a witness.
District Court’s Decision
On March 2, 2022, the district court denied the application
via a 13-page order. The court limited its review to the record
made before the commissioner. It determined that its review
under § 32-624 was de novo on both the facts and the law.
In the court’s thorough order, it concluded that the objec-
tors failed to carry their burden of showing that Morfeld
had not practiced law in a constant, daily, or routine man-
ner during the relevant period. As evidence that Morfeld has
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Cite as 311 Neb. 160actively practiced law, the court recognized Morfeld’s state-
ments in his affidavit that “he provides legal advice regard-
ing contracts, leases, nonprofit compliance, and employment
law to Civic Nebraska ‘continuously’ and ‘[o]n a routine
basis’”; that “he personally has provided legal advice to indi-
vidual voters in state, local, and federal elections”; and that
he “has also ­co-sponsored two ballot initiatives and advised
the ballot question committees on the single-subject rule, the
Nebraska Election Act, and the Nebraska Accountability and
Disclosure Act.”
The objectors promptly appealed. We moved the appeal to
our docket. 11 We also implemented an expedited schedule for
briefing and oral argument.
ASSIGNMENTS OF ERROR
The objectors assign four errors. They allege, reordered and
consolidated, that the district court erred in (1) denying dis-
covery after finding the proceeding was limited to the record
before the commissioner, (2) interpreting “practiced law” under
§ 23-1201.02(1) to be determined by “‘the nature of the act’”
rather than “‘the forum or object of the act,’” and (3) finding
Morfeld met the “‘practiced law’” and “‘active[ly]’” require-
ments under § 23-1201.02(1).
STANDARD OF REVIEW
[1-3] Subject matter jurisdiction and statutory interpretation
present questions of law. 12 A jurisdictional question which does
not involve a factual dispute is determined by an appellate
court as a matter of law. 13 An appellate court independently
reviews questions of law decided by a lower court. 14
11
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020) and Neb. Ct. R. App.
P. § 2-102(C) (rev. 2022).
12
In re Estate of Brinkman, 308 Neb. 117, 953 N.W.2d 1 (2021).
13
Id.14
Id.- 170 -
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Cite as 311 Neb. 160[4] Generally, the control of discovery is a matter for judicial
discretion, and decisions regarding discovery will be upheld on
appeal in the absence of an abuse of discretion. 15
The standard of review for an appeal from the order of a
single judge under § 32-624 is unsettled. The objectors assert
that the question is whether the district court’s decision con-
forms to the law and that it is a pure question of law. Morfeld,
on the other hand, suggests that the standard of review appli-
cable to petitions in error is appropriate. Morfeld asserts that
under such a standard, the question is whether sufficient, rele­
vant evidence supports the decision of the election official. 16
[5-7] A special statutory proceeding under § 32-624 is some-
what akin to mandamus. 17 An action for a writ of mandamus
is a law action. 18 In determining our standard of review, we
borrow from our mandamus jurisprudence and adopt a similar
standard of review here. In an appeal from a proceeding under
§ 32-624, a trial court’s factual findings have the effect of a
verdict and will not be set aside unless clearly erroneous. 19 In
reviewing a judge’s order under § 32-624, an appellate court
does not reweigh evidence, but considers the evidence in
the light most favorable to the successful party and resolves
evidentiary conflicts in favor of the successful party, who
is entitled to every reasonable inference deducible from the
evidence. 20 Regarding a question of law in an appeal from an
order made pursuant to § 32-624, an appellate court has an
obligation to reach a conclusion independent from a judge’s
conclusion in an order under review. 21
15
Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).
16
See Douglas County v. Archie, 295 Neb. 674, 891 N.W.2d 93 (2017).
17
See State, ex rel. Meissner, v. McHugh, 120 Neb. 356, 233 N.W. 1 (1930).
18
Young v. Dodge Cty. Bd. of Supervisors, 242 Neb. 1, 493 N.W.2d 160(1992).
19
See id.20
See id.21
See id.- 171 -
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Cite as 311 Neb. 160ANALYSIS
Jurisdiction
[8] It is the duty of an appellate court to determine whether
it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties. 22 No party challenges
this court’s jurisdiction, and we agree that the appeal is prop-
erly before us.
It is a rare occasion when a case involving a special proceed-
ing under § 32-624 (or its predecessor statute) comes before
this court 23 in contrast with a single justice of this court. But
the infrequency is likely driven by the small window of time
to seek review rather than a perceived lack of jurisdiction. As
we explained in dismissing the appeal in Nebraska Republican
Party v. Gale, 24 “no relief may be afforded to the party from [a
judge’s] order after the 55th day” preceding the election. Here,
the district court judge admirably resolved the matter quickly,
leaving time for the aggrieved party to seek appellate review.
Because in Nebraska Republican Party we recognized “uncer-
tainty in our case law and orders of this court in appeals from
such proceedings” and “assume[d] without deciding that sub-
ject matter jurisdiction does exist,” 25 we take this opportunity
to resolve any jurisdictional uncertainty.
[9,10] We start by recalling fundamental principles of our
jurisdiction. Except in those cases wherein original jurisdic-
tion is specifically conferred by Neb. Const. art. V, § 2, the
Nebraska Supreme Court exercises appellate jurisdiction. 26
In order for this court to have jurisdiction over an appeal,
22
North Star Mut. Ins. Co. v. Stewart, ante p. 33, ___ N.W.2d ___ (2022).
23
See, Nebraska Republican Party v. Gale, 283 Neb. 596, 812 N.W.2d
273 (2012); State, ex rel. Quinn, v. Marsh, 141 Neb. 436, 3 N.W.2d 892(1942); Porter v. Flick, 60 Neb. 773, 84 N.W. 262 (1900).
24
Nebraska Republican Party v. Gale, supra note 23, 283 Neb. at 599, 812
N.W.2d at 276.
25
Id. at 599, 812 N.W.2d at 275.
26
Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
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Cite as 311 Neb. 160appellate jurisdiction must be specifically provided by the
Legislature. 27 In other words, unless a statute provides for an
appeal, such right does not exist. 28
Section 32-624 authorizes a special, summary proceeding
before a judge of the district court. When an objection to a
candidate filing form is made and the filing officer has deter-
mined the validity of the objection, an application can be made
to a judge of, among other identified courts, the district court. 29
The judge’s order “may be made summarily upon application
of any political party committee or other interested party and
upon such notice as the court or judge may require.” 30
In Porter v. Flick, 31 we addressed our appellate jurisdiction
while construing a statute 32 similar to § 32-624. Although the
precise language of some of the statutes and constitutional pro-
visions has changed since this court’s decision in 1900, we find
the analytical path in Porter to be instructive.
[11] In Porter, we started with the presumption that the
Legislature intended to enact a constitutional law. We explained
that the law would be unconstitutional if it conferred upon
the judiciary a nonjudicial power. We recognized that Neb.
Const. art. II, § 1 (now art. II, § 1(1)), divides the powers of
the government into three departments—legislative, executive,
and judicial—and dictates that “no person or collection of per-
sons being one of these departments shall exercise any power
properly belonging to either of the others except as expressly
directed or permitted in this Constitution.” We stated that there
was no express direction or permission that would make the
power in the statute an exception to the general rule.
27
Id.
28
Id.
29
See § 32-624.
30
Id.
31
Porter v. Flick, supra note 23.
32
See Comp. Stat. 1899, ch. 26, § 137.
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Cite as 311 Neb. 160In Porter, we determined that the power given by the statute
similar to what is now § 32-624 was judicial in nature. We rea-
soned that the Legislature intended to give the judicial officers
identified in the statute an authority that the judge might law-
fully exercise. We further recognized that courts in other states
with similar statutes had exercised a “revisory jurisdiction”
over the decisions of ministerial officers charged with prepar-
ing the official ballot. 33 For the same reasons set out in Porter,
we conclude that the order of the district court judge under
§ 32-624 was a judicial decision.
[12] As a judicial decision, this court has the power to
review the judge’s order under § 32-624. Under Neb. Const.
art. V, § 23, “The several judges of the courts of record shall
have such jurisdiction at chambers as may be provided by
law.” That provision empowers the Legislature to confer power
in chambers. While § 32-624 does not use the word “cham-
bers” expressly, it impliedly does by referring to a judge. As
to an appeal, Neb. Const. art. I, § 23, mandates “one appeal
to the appellate court created pursuant to Article V, section 1,
of this Constitution or to the Supreme Court” as a matter of
right. In view of this provision, the intent of § 32-624 could
not have been to exclude orders made in the special proceed-
ing from appellate review. 34 Further, the Legislature has given
this court “appellate and final jurisdiction of all matters of
appeal and proceedings in error which may be taken from the
judgments or decrees of other courts in all matters of law, fact,
or equity.” 35
[13,14] Section 25-1911 authorizes appellate review of a
“final order made by the district court.” The word “court” as
used in § 25-1911 “has always been construed to mean, not
only the tribunal over which a judge presides, but the judge
33
Porter v. Flick, supra note 23, 60 Neb. at 776, 84 N.W. at 263.
34
See State, ex rel. Meissner, v. McHugh, supra note 17.
35
Neb. Rev. Stat. § 24-204 (Reissue 2016).
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Cite as 311 Neb. 160himself [or herself] when exercising, at chambers, judicial
power conferred by statute.” 36
Jurisdiction of the appellate courts is further addressed in
§ 24-1106. Under § 24-1106(1), an appeal from a district court
order in a case such as this would be to the Nebraska Court
of Appeals. However, § 24-1106(3) specifies that “[c]ases
may be removed from the Court of Appeals for decision by the
Supreme Court for any one or more of the reasons set forth in
subsection (2) of this section or in order to regulate the case-
load existing in either the Court of Appeals or the Supreme
Court.” At least two of the reasons contained in subsection (2)
apply here: The case involves a novel legal question and is one
of significant public interest. 37
Having concluded that we may exercise jurisdiction over
this appeal, we turn to the substantive issues raised by the
parties.
Discovery
The objectors argue that the district court erred in prohibit-
ing discovery and holding that the proceeding under § 32-624
was limited to the record before the commissioner. Before
resolving the issue, we dispose of an argument presented for
the first time in briefing to this court.
The objectors recognize that “the parties and the Court dur-
ing the proceedings below assumed, based on past caselaw
and the pre-filing deadline timing of the objection proceed-
ings, that the jurisdictional deadline for relief under § 32-624
was March 16, 2022.” 38 Even the objectors’ March 3 notice of
appeal requested “an expedited briefing and argument schedule
in order for relief to be provided before the statutory jurisdic-
tional deadline [of] March 16.” (Emphasis omitted.) But with
the passing of the March 1 filing deadline and the absence
36
Porter v. Flick, supra note 23, 60 Neb. at 775, 84 N.W. at 262.
37
See § 24-1106(2)(a) and (e).
38
Brief for appellants at 38.
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Cite as 311 Neb. 160of any other Democratic candidate for county attorney, they
suggest that under Neb. Rev. Stat. § 32-811(1)(b) (Reissue
2016) “the deadline for relief under § 32-624 may actually be
sometime in September.” 39
[15-17] There are at least three problems with the objec-
tors’ newly asserted position. First, a party cannot complain of
error which the party has invited the court to commit. 40 Having
goaded the court into making its order on an expedited basis,
the objectors cannot now contend that the court erred in doing
so. Second, appellate courts do not generally consider argu-
ments and theories raised for the first time on appeal. 41 Third,
the objectors did not assign error concerning the court’s belief
as to the deadline, and an appellate court does not consider
errors which are argued but not assigned. 42 Seeing no error
plainly evident from the record, 43 we decline the objectors’
invitation to find plain error and “remand[] for a threshold
determination of the actual period for potential relief and fur-
ther corresponding proceedings.” 44
The objectors argue that discovery is available in a special
statutory proceeding. They direct our attention to Neb. Rev.
Stat. § 25-2225 (Reissue 2016):
Where, by general or special statute, a civil action, legal
or equitable, is given and the mode of proceeding therein
is prescribed, this code shall not affect the proceedings
under such statute, until the Legislature shall otherwise
provide; but in all such cases, as far as it may be consist­
ent with the statute giving such action, and practicable
under this code, the proceedings shall be conducted in
39
Id.40
Seid v. Seid, 310 Neb. 626, 967 N.W.2d 253 (2021).
41
In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018).
42
Moore v. Nebraska Acct. & Disclosure Comm., 310 Neb. 302, 965 N.W.2d
564 (2021).
43
See State v. Kipple, 310 Neb. 654, 968 N.W.2d 613 (2022).
44
Brief for appellants at 39.
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Cite as 311 Neb. 160conformity thereto. Where the statute designates by name
or otherwise the kind of action, but does not prescribe
the mode of proceedings therein, such action shall be
commenced and prosecuted in conformity to this code;
where the statute gives an action, but does not designate
the kind of action, or prescribe the mode of proceeding
therein, such action shall be held to be the civil action of
this code and proceeded in accordingly.
The objectors emphasize the last sentence of the statute, con-
tending that it provides authorization for discovery.
The premise of the objectors’ argument is flawed. Their
premise is that § 32-624 does not prescribe the mode of pro-
ceedings. But it does. Section 32-624 intended a limited statu-
tory procedure. It provides that the court’s order “may be made
summarily upon application.” 45 And when a statute prescribes
the mode of proceeding, § 25-2225 provides that “this code
shall not affect the proceedings under such statute.”
A summary review proceeding is inconsistent with discov-
ery. The primary purpose of the discovery process is to explore
all available and properly discoverable information to narrow
the fact issues in controversy so that a trial may be an efficient
and economical resolution of a dispute. 46 A proceeding under
§ 32-624 is not a trial, and the issue is limited to the valid-
ity of a candidate filing form. In considering objections, the
filing officer is not confined to mere formal matters relating
to the certificate of nomination and may consider extrinsic
evidence. 47 But “when presented to a judge or court, the pro-
ceeding, being in the nature of a summary review, is essentially
appellate.” 48 And upon appellate review is not the proper place
to make a record. 49
45
§ 32-624.
46
Eddy v. Builders Supply Co., 304 Neb. 804, 937 N.W.2d 198 (2020).
47
State v. Allen, 43 Neb. 651, 62 N.W. 35 (1895).
48
State, ex rel. Brazda, v. Marsh, 141 Neb. 817, 822, 5 N.W.2d 206, 210
(1942).
49
See State v. Rust, 247 Neb. 503, 528 N.W.2d 320 (1995).
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Cite as 311 Neb. 160[18] In overruling the discovery requests, the district court
was mindful of the short timeframe it had to make a decision.
It noted that after the objectors filed their application, only 34
days remained for “the final word” and that the objectors also
wished to reserve some of that time for an appeal. We review
the court’s ruling for an abuse of discretion. An abuse of dis­
cretion occurs when a trial court’s decision is based upon rea-
sons that are untenable or unreasonable or if its action is clearly
against justice or conscience, reason, and evidence. 50 We find
no abuse of discretion by the court in denying discovery.
Meaning of “Practiced Law Actively”
We now turn to the merits of the objection to Morfeld’s can-
didacy. The objectors asserted that he did not qualify under the
language of § 23-1201.02(1). We disagree.
[19] Before turning to statutory interpretation, we recall the
rule of liberal construction regarding statutes relating to elec-
tion law:
“[I]t is the duty of the courts, in construing statutes pro-
viding for printing the names of candidates of both old
and new political organiza­tions upon the ballot,” to do so
in light of the constitutional principle that “all elections
shall be free; and there shall be no hindrance or impedi-
ment to the right of the qualified voter to exercise the
elective franchise.” 51
In other words, statutes relating to election law must be liber-
ally construed so as to promote, rather than defeat, candidacy
for the primary election. 52
[20,21] Statutory interpretation begins with the text, and
the text is to be given its plain and ordinary meaning. 53 An
50
Lombardo v. Sedlacek, supra note 15.
51
Davis v. Gale, 299 Neb. 377, 381, 908 N.W.2d 618, 623 (2018), quoting
Morrissey v. Wait, 92 Neb. 271, 138 N.W. 186 (1912); Neb. Const. art. I,
§ 22.
52
See Davis v. Gale, supra note 51.
53
State ex rel. Peterson v. Shively, 310 Neb. 1, 963 N.W.2d 508 (2021).
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Cite as 311 Neb. 160a­ ppellate court will not resort to interpretation of statutory
language to ascertain the meaning of words which are plain,
direct, and unambiguous. 54
For the reader’s convenience, we again quote the statute:
No person shall seek nomination . . . for the office of
county attorney . . . , unless he or she has been admitted
to the practice of law in this state for at least two years
next preceding the date such person would take office and
has practiced law actively in this state during such two-
year period . . . . 55
The objectors concede, as they must, that Morfeld was
“admitted to the practice of law in this state” for the requisite
period. They focus instead on the requirement that he had
“practiced law actively” in Nebraska for such period. The par-
ties agree that what Morfeld did during the period occurred
in this state. They dispute, however, whether he “practiced
law actively.”
These three words join two concepts: (1) an activity, “prac-
ticed law,” and (2) a level of activity, “actively.” We view the
objectors as disputing both. These three words have been in
§ 23-1201.02 since it was first adopted in 1969. 56
Regarding the meaning of “practiced law,” the objectors sug-
gest that we should look to two rules of this court. One, relat-
ing to admission of attorneys, defines “[s]ubstantially engaged
in the practice of law.” 57 The other, which is perhaps more
helpful, defines “to practice law,” in the context of the unau-
thorized practice of law, as the “application of legal principles
and judgment with regard to the circumstances or objectives
of another entity or person which require the knowledge,
54
Id.
55
§ 23-1201.02(1) (emphasis supplied).
56
See 1969 Neb. Laws, ch. 142, § 1, p. 664.
57
Neb. Ct. R. § 3-101(P) (rev. 2020).
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Cite as 311 Neb. 160judgment, and skill of a person trained as a lawyer.” 58 This
definition also includes a nonexclusive list of activities. 59
[22] But neither of these rules existed in this form in
1969, when the Legislature adopted the three key words of
§ 23-1201.02(1). Thus, we are reluctant to characterize those
rules as demonstrative of the plain and ordinary meaning in
1969 of the words “practiced law actively.” The U.S. Supreme
Court recently stated, “‘[I]t’s a “fundamental canon of statu-
tory construction” that words generally should be “interpreted
as taking their ordinary . . . meaning . . . at the time Congress
enacted the statute.”’” 60 Last year, we assumed without decid-
ing that this proposition applied to the interpretation of a stat-
ute enacted by our Legislature. 61 We now decide that it does.
Thus, it is a fundamental canon of statutory construction that
words generally should be interpreted as taking their ordinary
meaning at the time the Legislature enacted the statute.
We turn to contemporaneous sources for definitions, first
for “practice law.” One general dictionary defined “practice”
as “[t]o work at, especially as a profession: practice law.” 62
Another general dictionary defined “practice” as “to do or
perform frequently, customarily, or habitually” or “to put into
practice; to use one’s knowledge of; to work at, especially as
a profession.” 63 A legal dictionary defined “practicing law” by
reference to “practice of law,” which it defined as follows:
Rendering the services peculiar to the profession. The
work of an attorney at law in the preparation of plead-
ings and other papers incident to actions and special
58
Neb. Ct. R. § 3-1001.
59
See § 3-1001(A) to (E).
60
New Prime Inc. v. Oliveira, ___ U.S. ___, 139 S. Ct. 532, 539, 202 L. Ed.
2d 536 (2019).
61
See In re Adoption of Yasmin S., 308 Neb. 771, 956 N.W.2d 704 (2021).
62
The American Heritage Dictionary of the English Language 1028 (1969)
(emphasis in original).
63
Webster’s New Twentieth Century Dictionary of the English Language,
Unabridged 1413 (2d ed. 1956).
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Cite as 311 Neb. 160proceedings, the management of such actions and pro-
ceedings on behalf of clients before judges and courts, the
preparation of legal instruments of all kinds, and, in gen-
eral, advising clients and taking action for them in matters
connected with law. . . . Inclusive of counseling as well as
trial work. . . . The giving of such advice or the rendition
of such service as requires the use of any degree of legal
knowledge or skill. 64
Another legal dictionary defined “practice of law” to mean:
Not limited to appearing in court, or advising and assist-
ing in the conduct of litigation, but embracing the prepa-
ration of pleadings, and other papers incident to actions
and special proceedings, conveyancing, the preparation of
legal instruments of all kinds, and the giving of all legal
advice to clients. . . . It embraces all advice to clients
and all actions taken for them in matters connected with
the law. 65
Next, we look to definitions regarding “actively.” A gen-
eral dictionary defined “active” as “[e]ngaged in activity;
contributing; participating . . .” or “[c]haracterized by ener-
getic action or activity; busy.” 66 Another general dictionary
described “actively” as “in an active manner; by action; nim-
bly; briskly.” 67 A legal dictionary defined “active” as “[t]hat is
in action; that demands action; actually subsisting; the opposite
of passive.” 68
The objectors observe that we defined the term “actively” in
Hall v. Progress Pig, Inc. 69 and urge application of that defini-
tion here. The issue in Hall was whether a shareholder was
64
Ballentine’s Law Dictionary 972 (3d ed. 1969).
65
Black’s Law Dictionary 1335 (rev. 4th ed. 1968).
66
The American Heritage Dictionary of the English Language 13 (1969).
67
Webster’s New Twentieth Century Dictionary of the English Language,
Unabridged 20 (2d ed. 1956).
68
Black’s Law Dictionary 52 (rev. 4th ed. 1968).
69
Hall v. Progress Pig, Inc., 259 Neb. 407, 610 N.W.2d 420 (2000).
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Cite as 311 Neb. 160“actively engaged in the day-to-day labor and management
of [a] farm.” 70 Breaking down that clause into its component
parts, we stated that “the terms ‘actively engaged,’ ‘day to
day,’ ‘labor,’ and ‘management’ should be given their most
natural and obvious meaning.” 71 Consulting a dictionary, we
defined “actively” to mean “‘constantly engaged.’” 72 We rea-
soned that “to be actively engaged in the day-to-day labor and
management of the farm or ranch requires that such person be
involved on a daily or routine basis in all aspects of the farm
or ranch activities, be it labor or management.” 73 We conclude,
as did the district court, that “actively” refers to the frequency
or extent of involvement.
[23] Returning to the phrase “practiced law actively,” we
perceive no ambiguity in the use of these words. Putting the
words together and giving them their plain and ordinary mean-
ings, as used in § 23-1201.02(1), “practiced law actively”
means engaged in giving advice or rendering such service as
requires the use of any degree of legal knowledge or skill and
doing so on a daily or routine basis.
One can be engaged in the practice of law in a multitude
of different ways. Considering Morfeld’s employment with
Civic Nebraska in light of the plain and ordinary meaning of
“practiced law actively,” we conclude it falls within the defini-
tion. His day-to-day activities, and not his title as “Executive
Director,” drive our conclusion.
In a sworn affidavit, Morfeld set out his employment activi-
ties. According to his affidavit, he provides legal advice, direc-
tion, and supervision to Civic Nebraska, on a routine basis,
in a variety of areas. He stated that on a routine basis, he
provides Civic Nebraska the type of legal advice that in-house
70
Id. at 415, 610 N.W.2d at 428.
71
Id. at 414, 610 N.W.2d at 427.
72
Id. at 414, 610 N.W.2d at 428.
73
Id. at 415, 610 N.W.2d at 428.
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Cite as 311 Neb. 160counsel provides in other companies, including ongoing legal
advice to Civic Nebraska regarding contracts, leases, nonprofit
compliance, and matters of employment law. In connection
with Morfeld’s employment, he routinely uses his legal knowl-
edge and skill. And he is not giving legal advice to himself—
he is providing counsel to an organization and its employees.
In doing so, he practices law actively. To the extent the objec-
tors’ argument could be understood to mean that an attorney
employed as in-house counsel does not practice law because
the attorney does not provide legal services to “clients,” we
soundly reject it.
[24] Because Morfeld’s providing legal advice on a routine
basis regarding various matters to Civic Nebraska satisfies
the “practiced law actively” requirement, we need not deter-
mine whether his activities with the ballot question committee
or his service as a senator in the Legislature also constitute
“practic[ing] law actively.” An appellate court is not obligated
to engage in an analysis that is not necessary to adjudicate the
case and controversy before it. 74
[25] The objectors argue that the district court erred by inter-
preting “practiced law” to be determined by “the nature of the
act” rather than “the forum or object of the act.” In making that
determination, the district court relied on a case involving the
unauthorized practice of law 75 and noted that we reaffirmed the
broad definition of “practice of law” in a case decided 8 years
prior to the enactment of § 23-1201.02. 76 As foreshadowed
above based on the plain and ordinary meaning of practice of
law, we agree with the district court that the nature of the activ-
ity is key. By advancing the notion that “the forum or object
of the act” is controlling, it appears the objectors wish to have
us read words into the statute that are not there. Neither is it
74
Schmid v. Simmons, ante p. 48, ___ N.W.2d ___ (2022).
75
State, ex rel. Johnson, v. Childe, 139 Neb. 91, 295 N.W. 381 (1941).
76
See State ex rel. Nebraska State Bar Assn. v. Butterfield, 172 Neb. 645,
111 N.W.2d 543 (1961).
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Cite as 311 Neb. 160within the province of the courts to read meaning into a statute
that is not there or to read anything direct and plain out of a
statute. 77 Section 23-1201.02 contains no requirement that the
attorney have courtroom litigation experience or that the prac-
tice be prosecutorial in nature. An individual who meets the
qualification requirements of § 23-1201.02 is eligible to be a
candidate for election as county attorney. The appropriate audi-
ence for a political party’s contention that a candidate’s expe­
rience is lacking and undeserving of a vote is the electorate.
CONCLUSION
Having established our jurisdiction over an appeal from an
order made pursuant to § 32-624, we find no abuse of discretion
by the district court in denying discovery. Based on the plain
and ordinary meaning of “practiced law” and “actively,” we
conclude that Morfeld’s routine activities with Civic Nebraska
fall within the meaning of “practiced law actively” and that he
has engaged in such activities for the relevant 2-year period.
Accordingly, he meets the qualifications of § 23-1201.02 to
seek nomination for the office of county attorney.
While our attention on § 23-1201.02 is focused on qualifica-
tion to be placed on the ballot for the office of county attorney,
ultimately the electors of Lancaster County are charged with
determining whether a candidate’s experience is meaningful
and worthy of support.
Affirmed.
Heavican, C.J., and Stacy and Papik, JJ., not participating.
77
Seivert v. Alli, 309 Neb. 246, 959 N.W.2d 777 (2021).