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.
“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.
Top Journal Star photos for February
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With a morsel of food perched in its mouth, a chickadee makes a winged retreat from a bird feeder on Wednesday, Feb. 24, 2021, at Holmes Lake Park. High temps are forecast to be in the mid-40s to 50s for the next week.
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David City’s Dylan Vodicka (right) collapses into the arms of wrestling coach Tahner Thiem after defeating Ord’s Kelen Meyer in the Class C 182 pound state championship match on February 20, 2021, at CHI Health Center. It was an emotional day for Vodicka, who won his state title without his father, Jim, who passed away in December. “I know he’s watching,” Vodicka said. “He’d be so proud.” Vodicka capped off an undefeated 54-0 campaign that included breaking the school career wins record with 184. KENNETH FERRIERA, Journal Star
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Scottsbluff’s Paul Garcia celebrates after defeating Gering’s Paul Ruff in the Class B 126 pound state championship match on February 20, 2021, at CHI Health Center. Garcia became entered into the history books as one of Nebraska’s few 4-time state championship holders. KENNETH FERRIERA, Journal Star
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Crete celebrates after defeating Waverly 40-31, to win the B-3 district final on Saturday, February 20, 2021, at Crete High School. KENNETH FERRIERA, Journal Star.
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Nebraska takes the court to celebrate their three set sweep over Minnesota on Sunday, February 21, 2021, at the Devany Sports Center. KENNETH FERRIERA, Journal Star.
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Bill Eickmeier clears snow from his driveway early in the morning on Sunday, February 21, 2021. The city received another helping of snow -2 inches, to be exact, according to the National Weather Service. KENNETH FERRIERA, Journal Star.
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Corn Coast Brewing co-owners Dan Walkermeyer (left) and Will Walter stand inside the future site of their first taproom and brewing location in Southwest Lincoln at 1433 Dahlberg Drive on Friday, February 19, 2021. KENNETH FERRIERA, Journal Star.
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Lincoln East state wrestling qualifiers Brandon Bausert (top) and Keith Smith spar as part of a warmup during wrestling practice at Lincoln East High School on Monday, February 15, 2021. KENNETH FERRIERA, Journal Star.
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Jutta Graham (left) and Tom Wagoner practice the basics of dancing the Rumba during a day of dance lessons on Sunday, February 14, 2021, at The DelRay Ballroom. The Rumba is regarded as not just a mere dance with steps to follow. Many regard the rumba as the dance of love and passion. KENNETH FERRIERA, Journal Star.
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Florist Kurtis Bomar picks out roses for a Valentines Day bouquet on Saturday, February 13, 2021, at Stem Gallery. Not even sub-zero temperatures and a pandemic can stem the curve of flower sales for Valentines day. As the orders continued to roll in, delivery drivers and florist have taken precautions to fight against the cold. KENNETH FERRIERA, Journal Star.
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A frigid squirrel braves the unwelcoming icy cold to forage for food at Holmes Lake Park on Friday, February 12, 2021. With the days high just barely reaching 1 degree Fahrenheit without wind chill. It was rare to see signs of life that were not bolting for warmth. Anyone spotted outside faced bone chilling winds and snow flurries. Forecast for western Nebraska predicted similar weather continuing into the following days. KENNETH FERRIERA, Journal Star.
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Pius X’s Dontae Thomas celebrates with teammates after pinning Elkhorn South’s Henry Thomsen in the 182lb championship match during the A-4 district wrestling meet on Saturday, February 13, 2021, at Omaha Central High School. KENNETH FERRIERA, Journal Star.
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Nebraska’s Lexi Sun celebrates a kill by teammate Lauren Stivrins (not shown) to tie the score against Minnesota at 21-21 in the fourth set Friday at the Devaney Sports Center.
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Nebraska’s Madi Kubik (10) dives for an ace serve by Minnesota’s Adanna Rollins as teammate Kayla Caffey (top) looks on during a Feb. 19 match at the Devaney Sports Center.
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Nebraska right-side hitter Riley Zuhn attempts a kill during a match against Minnesota on Feb. 19.
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BIRDS OF A FEATHER
A bluejay watches as a competitor for food comes in for a landing on a hanging peanut wreath bird feeder Wednesday at Holmes Lake Park. After 10 days of frigid weather — including a period of below-zero high temperatures — the weather is forecast to be milder through the end of the month.
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John Matczyszyn (center) scores a goal between brothers Alex (left) and Thomas on Wednesday on the north shore of Holmes Lake. The brothers were joined by their father Alexander (not shown). After 10 days of frigid weather — including a period of below-zero high temperatures — the area is forecasted to receive a more reasonable climate heading into the next week.
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A squirrel raids a hanging peanut wreath bird feeder for a peanut on Wednesday, Feb. 17, 2021, on the south shore on Holmes Lake Park. After 10 days of frigid weather – including a period of below-zero high temperatures – the area is forecasted to receive a more reasonable climate heading into the next week and a half.
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A pair of ice fishermen pull a sled with their gear out on the snow and ice-covered surface of Holmes Lake Park on Wednesday, Feb. 17, 2021. After 10 days of frigid weather – including a period of below-zero high temperatures – the area is forecasted to receive a more reasonable climate heading into the next week and a half.
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Lincoln Pius X’s Charlie Hoiberg (12) blocks Lincoln Southeast’s Sam Haire’s layup as teammate Sam Hoiberg (2) and Derek Branch (3) look on in the first half Wednesday at Southeast High School.
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Lincoln Northeast’s Connor Renard (center) lands on the back of Millard South’s Brock Murtaugh as they battled for a rebound in the first half Saturday at Lincoln Northeast.
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Lincoln Northeast’s Porter Bazil (33) blocks a shot from Millard South’s Lance Rucker in the first half Saturday at Lincoln Northeast.
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American Bison forage for food in the bitter cold after on Sunday, February 07, 2021, at the Pioneers Park Nature Center. Bone chilling winds whipped snow through the Lincoln area, causing temperatures to drop to single digit temperatures. Weekly outlooks expect the trend to continue for at least into the next week. KENNETH FERRIERA, Journal Star.
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A dog walker walks past tree branches covered in hoar frost near Holmes Lake Park on Tuesday, Feb. 2, 2021. JUSTIN WAN, Journal Star
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Fremont bowling head coach Keith Cunnings celebrates after the team won the team title during state bowling championships, Tuesday, Feb. 9, 2021 at Sun Valley Lanes. JUSTIN WAN, Journal Star
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Alec Manzano (right) loads an order of groceries into a car at the Hyvee online order pickup site on Sunday, February 07, 2021, at the Hyvee on 51st and O street. KENNETH FERRIERA, Journal Star.
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Venturing out in the below-zero wind chill on snowshoes he received in Christmas 2019, Walt Stroup of Lincoln blazes a trail on the pristine powdery remnants of the 25.3 inches of snow the city received during a 14-day period from Jan. 25 to Feb. 7 on Tuesday, Feb. 9, 2021, at Holmes Lake Park. FRANCIS GARDLER, Journal Star
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Fremont’s Cole Macaluso bowls in the boys state bowling, Monday, Feb. 8, 2021, at Sun Valley Lanes. JUSTIN WAN, Journal Star
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Snow and single-digit temperatures don’t stop people from walking around Holmes Lake on Monday, Feb. 8, 2021. GWYNETH ROBERTS, Journal Star
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Nebraska’s Kaitlyn Higgins springs from the vault during a duel against Rutgers on Sunday, Feb. 7, 2021, at the Devaney Sports Center. KENNETH FERRIERA, Journal Star.
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Shadows of the Lincoln East show choir are silhouetted on the wall as they rehearse on Monday, February 01, 2021 at Lincoln East High School. KENNETH FERRIERA, Journal Star.
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Nebraska head coach John Cook (bottom center) talks to the team before they take on Maryland on Feb. 6 at the Devaney Sports Center.
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A biker braves heavy snowfall on Saturday, Feb. 6, 2021, along the Rock Island trail. Adverse weather was of no concern to the cold blooded bikers who took part in the Frosty Bike Ride on Saturday. Despite temperatures in the low teens and a snow forecast of 4 inches, bike enthusiasts braved the weather for the annual ride. KENNETH FERRIERA, Journal Star.
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Lincoln Southwest’s Tommy Palmer launches himself into the backstroke at the start of the Boys 200-yard medley relay in a February dual against Lincoln Southeast.
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Proponents of LB643 wait in the rotunda to testify in favor of the new bill on Thursday, Feb. 4, 2021, at the Nebraska State Capitol. If passed LB643 would allow them to be exempted from any vaccine program, though at this time one does not exist. KENNETH FERRIERA, Journal Star.
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By-product of ethanol is seen at AltEn, Thursday, Feb. 4, 2021, in Mead, Neb.
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Hoar frost coats tree branches on Tuesday, Feb. 2, 2021. GWYNETH ROBERTS, Journal Star
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Crew members work around an OC-135B after it landed as the first U.S. Air Force plane from Offutt’s temporary relocation to the Lincoln Airport on Monday, Feb. 1, 2021. The Air Force’s 55th Wing is relocating to Lincoln while Offutt’s runway is reconstructed. GWYNETH ROBERTS, Journal Star
https://norfolkdailynews.com/state/nebraska/lawsuit-seeking-to-keep-morfeld-off-ballot-delves-into-meaning-of-actively-practicing-law/article_5c2097b4-a94f-5d82-9732-91db5441e10b.html