Lawsuit seeking to keep Morfeld off ballot delves into meaning of ‘actively practicing law’ | Crime and Courts

Linda D. Garrow

Whether Sen. Adam Morfeld can be on the May 10 primary ballot as a candidate for Lancaster County Attorney will likely come down to a judge’s definition of “actively practicing law.”

Attorneys debated just how strictly it should be defined before Lancaster County District Judge Kevin McManaman on Thursday in a lawsuit appealing a decision by the county election commissioner.

The state GOP had filed an objection with the election commissioner arguing that Morfeld doesn’t meet the statutory requirements that he has “actively practiced law” for at least the last two years. Election Commissioner Dave Shively denied the objection and said Morfeld could be on the ballot.

At issue is whether Morfeld’s work as executive director of his nonprofit Civic Nebraska, as co-chair of a group trying to get the issue of medical marijuana on the ballot and as a member of the Legislature’s Judiciary Committee constitutes “actively practicing law.”

Morfeld’s attorney, Andre Barry, argued that it should be liberally defined — one of his definitions came from the dictionary — and that the GOP couldn’t overcome the high bar set to remove someone from the ballot.

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“The applicants are asking the court to enter an order here that would prevent voters in Lancaster County from voting for the person they … desire as their choice,” Barry said. “And the Nebraska Constitution sets an extremely high bar to make such a request. And with good reason.”

GOP Attorney David Lopez said the court should look to attorney practice and bar admission rules enacted by the Supreme Court, which lists various ways attorneys are “substantially engaged in the practice of law.”

Those include working in a private law practice, as an attorney offering legal counsel to a corporation or other entity, as an attorney for government departments, as a judge or related positions or as a law school teacher.

None of those, Lopez said, apply to Morfeld. Based on those rules, an attorney from another state with similar experience as Morfeld’s could not be admitted to the Nebraska bar, he said, so it makes no sense that those rules not apply to a candidate for chief county prosecutor.

“There’s a true imbalance.”

Lopez also argued that to be practicing law a lawyer must have a client — and Morfeld doesn’t because he’s offering advice to his nonprofit, which he leads, and to a ballot initiative he sponsors. Even if he did offer advice at some point, it was fleeting and not continuous, as the statute requires, he said.

Barry disagreed, saying the statute — which was enacted before the Supreme Court rules were written — requires the court to look at the plain meaning and then see if all the Supreme Court rules, not just those mentioned by Lopez, confirm that, and they do.

The rules Lopez referred to talk about being “substantially” engaged in the practice of law, not “actively,” Barry said, and the two have different meanings.

“That’s just not the question before us,” he said. “The question is was Mr. Morfeld actively using his law license to practice law. That could be to give legal advice, it could be direction on litigation. It could be innumerable things, as the dictionary definition points out.”

Barry noted that managing partners in a law firm might not actively litigate cases, but they give legal advice to other lawyers in the firm, which constitutes practicing law.

Lopez said using such a vague definition renders the statutory requirement “toothless,” which wasn’t what the Legislature intended.

The judge denied a request by Lopez to offer additional evidence at Thursday’s hearing and call Morfeld to testify, so Lopez introduced a number of exhibits in case of an appeal.

McManaman said he’d try to have a decision by Wednesday, which would offer time for either side to appeal. State law requires a decision reversing the election commissioner’s finding by March 16.

Morfeld is challenging incumbent Pat Condon, a Republican and longtime deputy county attorney appointed to replace Joe Kelly when he became U.S. Attorney for Nebraska.

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