- 160 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

The 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 interpretation 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/25/2022 08:06 AM CDT
- 161 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

8. Jurisdiction: Appeal and Error. 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.

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 appellate 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 belonging 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 district 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 unreasonable 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 primary election.
- 162 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

20. 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 interpretation 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 construction 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 
- 163 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

election 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 “practiced 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 statutory 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 qualifications 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 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

that 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 requirements 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 statutorily 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.
- 165 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

letter to David J. Shively, the Lancaster County election commissioner, the objectors alleged that Morfeld had not practiced 

law and had not done so actively during the 2-year period referenced in § 23-1201.02(1). The letter also set forth the objectors’ 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 continuously 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 submitted 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 positions and arguments, and directed and supervised the work of 

internal and external counsel for Civic Nebraska.

10 See Neb. Ct. R. § 3-401.1.
- 166 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

According 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)” compliance, 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 committee, 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 initiatives 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 attorney. He has drafted, introduced, and passed into law numerous 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 redistricting 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 exhibits attached.
- 167 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

One 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 objection. His determination did not contain findings of fact or specific citations of law. The commissioner stated that “in interpreting 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 statutory requirements to be placed on the ballot.”

Application to District Court Judge

The next day, the objectors filed an application for a special 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 compelling 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 
- 168 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

discovery 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 expedited 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 commissioner 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 objectors 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 hearing. 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 objectors failed to carry their burden of showing that Morfeld 

had not practiced law in a constant, daily, or routine manner during the relevant period. As evidence that Morfeld has 
- 169 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

actively practiced law, the court recognized Morfeld’s statements in his affidavit that “he provides legal advice regarding 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 individual 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 discovery 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]’” requirements 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 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

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 conforms to the law and that it is a pure question of law. Morfeld, 

on the other hand, suggests that the standard of review applicable to petitions in error is appropriate. Morfeld asserts that 

under such a standard, the question is whether sufficient, relevant evidence supports the decision of the election official. 16

[5-7] A special statutory proceeding under § 32-624 is somewhat 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 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

ANALYSIS

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 properly before us.

It is a rare occasion when a case involving a special proceeding 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 “uncertainty in our case law and orders of this court in appeals from 

such proceedings” and “assume[d] without deciding that subject 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 jurisdiction 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).
- 172 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

appellate 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 determined 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 provisions 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 persons 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.
- 173 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

In Porter, we determined that the power given by the statute 

similar to what is now § 32-624 was judicial in nature. We reasoned that the Legislature intended to give the judicial officers 

identified in the statute an authority that the judge might lawfully 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 preparing 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 “chambers” 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 proceeding 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).
- 174 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

himself [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 caseload 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 prohibiting 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 during the proceedings below assumed, based on past caselaw 

and the pre-filing deadline timing of the objection proceedings, 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 jurisdictional 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.
- 175 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

of 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 objectors’ 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 arguments 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 further 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 consistent 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.
- 176 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

conformity 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, contending 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 proceedings. But it does. Section 32-624 intended a limited statutory 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 discovery. 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 validity 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 proceeding, 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).
- 177 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

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 discretion occurs when a trial court’s decision is based upon reasons 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 candidacy. 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 election law:

“[I]t is the duty of the courts, in construing statutes providing 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 impediment to the right of the qualified voter to exercise the 

elective franchise.” 51

In other words, statutes relating to election law must be liberally 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).
- 178 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

appellate 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 twoyear 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 parties 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, “practiced 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 suggest that we should look to two rules of this court. One, relating 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 unauthorized 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).
- 179 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

judgment, 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 statutory 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 deciding that this proposition applied to the interpretation of a statute 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 pleadings 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).
- 180 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, the 

preparation of legal instruments of all kinds, and, in general, 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 assisting in the conduct of litigation, but embracing the preparation 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 general dictionary defined “active” as “[e]ngaged in activity; 

contributing; participating . . .” or “[c]haracterized by energetic action or activity; busy.” 66 Another general dictionary 

described “actively” as “in an active manner; by action; nimbly; 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 definition 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).
- 181 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

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 reasoned 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 meanings, 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 definition. His day-to-day activities, and not his title as “Executive 

Director,” drive our conclusion.

In a sworn affidavit, Morfeld set out his employment activities. According to his affidavit, he provides legal advice, direction, 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.
- 182 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

counsel 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 knowledge 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 objectors’ 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 determine 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 interpreting “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 activity 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).
- 183 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

NEBRASKA REPUBLICAN PARTY v. SHIVELY

Cite as 311 Neb. 160

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. 77 Section 23-1201.02 contains no requirement that the 

attorney have courtroom litigation experience or that the practice 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 audience for a political party’s contention that a candidate’s experience 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 qualification 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).