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STATE EX REL. MALONE v. BALDONADO-BELLAMY

Cite as 307 Neb. 549

State of Nebraska ex rel. Kevin W. Malone, 

appellant, v. Megan Baldonado-Bellamy, 

in her official capacity as official court 

reporter, District Court for Douglas 

County, Nebraska, and John Friend, 

in his official capacity as clerk of 

the District Court for Douglas 

County, Nebraska, appellees.

___ N.W.2d ___

Filed October 23, 2020. No. S-19-856.

1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question 

that does not involve a factual dispute is determined by an appellate 

court as a matter of law, which requires the appellate court to reach a 

conclusion independent of the lower court’s decision.

2. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is an appellate court’s duty to determine whether it 

has jurisdiction to decide them.

3. Mandamus. A person choosing to seek speedy relief by a writ of mandamus pursuant to Neb. Rev. Stat. § 84-712.03(1)(a) (Cum. Supp. 2018) 

must follow the procedural requirements set forth in Neb. Rev. Stat. 

§§ 25-2156 through 25-2169 (Reissue 2016).

4. ____. An action to procure the issuance of a writ of mandamus is not 

begun until a motion and affidavit, or a petition verified positively, is 

filed in the district court.

5. Mandamus: Jurisdiction. The filing of a motion and affidavit or a verified petition is a jurisdictional requirement before a district court may 

issue a writ of mandamus, and until such filing is made, the court does 

not have jurisdiction over an action for writ of mandamus.

6. Jurisdiction: Appeal and Error. When a trial court lacks jurisdiction 

to adjudicate the merits of a claim, issue, or question, an appellate court 

also lacks the power to determine the merits of the claim, issue, or question presented to the lower court.

Nebraska Supreme Court Online Library

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

10/30/2020 08:07 AM CDT
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STATE EX REL. MALONE v. BALDONADO-BELLAMY

Cite as 307 Neb. 549

Appeal from the District Court for Douglas County: Timothy 

P. Burns, Judge. Appeal dismissed.

Bradley H. Supernaw and Richard L. Boucher, of Boucher 

Law Firm, for appellant.

Douglas J. Peterson, Attorney General, and Danielle Rowley 

for appellee Megan Baldonado-Bellamy.

Donald W. Kleine, Douglas County Attorney, Joshua R. 

Woolf, Tess M. Moyer, and Timothy Coffey, Senior Certified 

Law Student, for appellee John Friend.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Papik, JJ.

Miller-Lerman, J.

NATURE OF CASE

Kevin W. Malone appeals the order of the district court for 

Douglas County which declined to issue a writ of mandamus 

which he sought pursuant to Neb. Rev. Stat. §§ 84-712 et seq. 

(Reissue 2014 & Cum. Supp. 2018) (public records statutes) 

in order to obtain an audio recording of his criminal trial. The 

district court determined that the public records statutes were 

inapplicable to Malone’s request for the audio recording and 

that access to the record of court proceedings was governed 

by court rules rather than the public records statutes. Malone 

claims that the court erred when it determined that the public records statutes did not entitle him to a copy of the audio 

recording of his trial.

The court reporter and the clerk of the district court from 

whom Malone sought to obtain the audio recording argue on 

appeal that in addition to the basis upon which the district 

court denied mandamus, denial was proper for other reasons, 

including the contention that the district court lacked jurisdiction because Malone failed to file a verified petition or a 

motion and affidavit in support of his request for a writ of 

mandamus. We agree that the district court lacked jurisdiction 
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Cite as 307 Neb. 549

of this action for writ of mandamus, and as a result, we lack 

jurisdiction of this appeal. We therefore dismiss this appeal for 

lack of jurisdiction.

STATEMENT OF FACTS

Following a jury trial in 2017, Malone was convicted of 

motor vehicle homicide, manslaughter, leaving the scene of 

a personal injury accident resulting in serious bodily injury 

or death, and driving without an ignition interlock device. 

On appeal, the Nebraska Court of Appeals rejected Malone’s 

claims of insufficient evidence and excessive sentences and 

affirmed his convictions and sentences. State v. Malone, 26 

Neb. App. 121, 917 N.W.2d 164 (2018).

During the direct appeal of his convictions, Malone reviewed 

the bill of exceptions from his trial. Following his review, 

Malone believed that the trial record was incomplete. Malone 

had testified in his defense at the trial, and he believed that 

an exchange between himself and the prosecutor on crossexamination had been omitted. Malone thereafter made efforts 

to confirm his suspicion that the exchange had been omitted 

and to correct the record.

In April 2018, Malone sent a letter to Megan BaldonadoBellamy, the court reporter who had been assigned to his trial. 

In the letter, Malone stated his belief that the exchange was 

missing. He asked Baldonado-Bellamy to check the audio 

recording of the trial and to provide documentation that the 

exchange had been made part of the record. Baldonado-Bellamy 

replied to Malone’s letter with a letter in which she stated that 

she had listened to the audio recording and that the transcript 

that had been provided was accurate.

In June 2018, Malone sent a second letter to BaldonadoBellamy and he sent a request to the district court; in both 

documents, Malone requested that Baldonado-Bellamy provide him copies of the audio recording made of his trial. 

The judge in Malone’s criminal trial replied with a letter in 

which she stated that she had “reviewed the record” and that 

Malone’s “claim that there is testimony missing from the 
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Cite as 307 Neb. 549

official record/Bill of Exceptions is unfounded.” The judge 

concluded that Malone had been “provided with the bill of 

exceptions as requested.”

In July 2018, Malone filed a document in his criminal case 

in which he requested that the clerk of the district court provide an audio recording of his trial. Malone also sent a letter to 

John Friend, the clerk of the district court for Douglas County, 

in which he described the letter as a “follow up” to the court 

filing and requested, inter alia, copies of the audio recording 

of his trial.

Also in July 2018, Malone sought assistance from the 

Nebraska Attorney General’s office in obtaining the audio 

recording of his trial. An assistant attorney general responded 

to Malone’s request with a letter stating the Attorney General’s 

office had considered Malone’s request in accordance with the 

public records statutes and had concluded that the request for 

an audio recording of his trial was not covered by the public 

records statutes and that therefore, his request required no 

further action. Malone sent a letter to the assistant attorney 

general expressing his disagreement with her conclusions; the 

assistant attorney general responded with a letter confirming her earlier conclusions but informing Malone he had “the 

option under Neb. Rev. Stat. § 84-712.03 to pursue this matter 

in a court of law.”

On January 17, 2019, Malone filed a “Complaint for Writ 

of Mandamus” in the district court. He asserted that the 

action was authorized pursuant to § 84-712.03(1)(a), which 

provides that “[a]ny person denied any rights granted by sections 84-712 to 84-712.03 may elect to . . . [f]ile for speedy 

relief by a writ of mandamus in the district court within 

whose jurisdiction the state, county, or political subdivision 

officer who has custody of the public record can be served[.]” 

Malone named Baldonado-Bellamy and Friend as respondents. Malone alleged that he was “entitled to a p[er]emptory 

writ of mandamus” requiring Baldonado-Bellamy and Friend 

to provide copies or allow inspection of certain records he 

had requested in accordance with the public records statutes. 
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Cite as 307 Neb. 549

Malone attached copies of his April 2018 letter to BaldonadoBellamy and his July 2018 letter to Friend to support his 

assertion that both had “a clear duty to provide the requested 

documents pursuant to the Nebraska Public Records Act.” 

Malone also attached a copy of the July 2018 letter from the 

Attorney General’s office, as well as affidavits of four persons 

who each stated that he or she had been present at Malone’s 

trial and had recalled the exchange between Malone and the 

prosecutor that Malone asserted was omitted from the bill of 

exceptions. Malone’s “Complaint for Writ of Mandamus” did 

not include a notarized verification.

On July 15, 2019, Baldonado-Bellamy filed a suggestion of 

mootness and motion to dismiss. She alleged in the motion and 

stated in an affidavit that she had resigned her employment 

as an official court reporter for the district court in December 

2017 and that at that time, she retained possession of all 

shorthand notes and tape recordings she had used to make 

the records for cases in which she had served as the official 

court reporter.

Baldonado-Bellamy stated that prior to July 9, 2019, she was 

unaware of a court rule that provided that upon termination of 

her employment, she was required to transfer materials used 

to make records to the clerk of the district court. BaldonadoBellamy stated that after learning of the rule, she delivered 

to the clerk of the district court all shorthand notes and tape 

recordings she had used to make the records for all cases in 

which she had served as official court reporter. She asserted 

that because she had relinquished control of all shorthand notes 

and tape recordings related to Malone’s criminal trial, Malone’s 

“Complaint for Writ of Mandamus” was moot as to her because 

she was no longer the custodian of the records sought. Malone 

objected to Baldonado-Bellamy’s suggestion of mootness and 

motion to dismiss, and after a hearing, the court overruled the 

motion without prejudice.

Baldonado-Bellamy filed an amended answer in which 

she generally denied that she had a duty under the public 

records statutes to provide the audio recordings to Malone. She 
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Cite as 307 Neb. 549

asserted additional defenses, including, inter alia, an assertion 

that Malone’s “Complaint is not made upon affidavit or verified petition as required by Neb. Rev. Stat. § 25-2160.” Friend 

also filed an answer in which he generally denied that he had a 

duty under the public records statutes and in which he asserted 

various defenses. Trial was held and included testimony by 

Malone, Baldonado-Bellamy, and Friend.

Following the trial, the district court entered an order in 

which it denied and dismissed Malone’s action for writ of 

mandamus. The court stated that although § 84-712(1) provides that a person may seek a public record, the statute clearly 

provides that a person may do so “[e]xcept as otherwise 

expressly provided by statute . . . .” The court then cited Neb. 

Rev. Stat. § 24-1003 (Reissue 2016), which states in part that 

“[t]he [Nebraska] Supreme Court shall provide by rule for the 

recording and preservation of evidence in all cases in the district . . . courts and for the preparation of transcripts and bills 

of exceptions.” The court also cited Neb. Rev. Stat. § 25-1140 

(Reissue 2016), which provides in part that the “procedure for 

preparation, settlement, signature, allowance, certification, filing, and amendment of the bill of exceptions shall be regulated 

and governed by rules of practice prescribed by the Supreme 

Court.” The court noted that pursuant to such statutory authority, this court had adopted a detailed set of rules dealing with 

court reporting personnel and the recording, preparation, and 

preservation of court records made in district courts. The court 

stated that such rules included a uniform set of procedures 

for the judge, counsel, parties, and nonparties to request the 

court reporter to prepare a transcript of any proceeding or, for 

purposes of an appeal, a bill of exceptions. The court noted in 

particular that Neb. Ct. R. App. P. § 2-105(B)(5) (rev. 2018) 

provided a procedure for counsel or parties to follow if they 

believed the bill of exceptions was incorrect or needed to 

be amended.

The district court concluded that the public records statutes 

were inapplicable to Malone’s request for the audio recording 
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Cite as 307 Neb. 549

of his trial, because the rules promulgated by this court pursuant to statutory authority have “expressly provided” the procedure by which one can obtain a record, transcript, or a bill of 

exceptions from a trial from the court reporter in the district 

court, as well as the procedure to amend a bill of exceptions a 

party believes to be incorrect. The court further reasoned that 

if a person could request an audio recording of a trial pursuant 

to the public records statutes, it would circumvent the detailed 

rules adopted by this court. The court concluded that because 

the public records statutes were inapplicable to Malone’s 

request for an audio recording of his trial, Malone’s petition for 

a writ of mandamus should be denied and dismissed and that it 

need not consider other issues raised by the parties.

Malone appeals the district court’s order which denied his 

petition for a writ of mandamus.

ASSIGNMENTS OF ERROR

Malone claims that the district court erred when it found 

that the court reporter’s notes and audio recordings from his 

trial were not public records under § 84-712.01(1) and when 

it found that the court rules providing for the production and 

amendment of bills of exceptions “expressly provide” that 

audio recordings and court reporter’s notes are to be excepted 

from the public records statutes.

Baldonado-Bellamy argues in her brief, inter alia, that the 

district court lacked jurisdiction to consider Malone’s request 

for writ of mandamus, because he failed to file either a verified 

petition or a motion and affidavit to support issuance of a writ 

of mandamus.

STANDARD OF REVIEW

[1] A jurisdictional question that does not involve a factual 

dispute is determined by an appellate court as a matter of law, 

which requires the appellate court to reach a conclusion independent of the lower court’s decision. In re App. No. C-4973 of 

Skrdlant, 305 Neb. 635, 942 N.W.2d 196 (2020).
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STATE EX REL. MALONE v. BALDONADO-BELLAMY

Cite as 307 Neb. 549

ANALYSIS

[2] Before reaching the legal issues presented for review, it 

is our duty to determine whether we have jurisdiction to decide 

them. Id. In this case, Baldonado-Bellamy asserts that we lack 

jurisdiction over this appeal, because the district court lacked 

jurisdiction over Malone’s action for writ of mandamus for the 

reason that Malone failed to file either a motion and affidavit 

or a verified petition as required by governing mandamus law. 

We agree.

Baldonado-Bellamy cites Neb. Rev. Stat. § 25-2160 (Reissue 

2016), which provides in part that “[t]he motion for the writ [of 

mandamus] must be made upon affidavit.” She also cites State 

ex rel. Van Cleave v. City of No. Platte, 213 Neb. 426, 430, 329 

N.W.2d 358, 361 (1983), in which we held that when “neither a 

motion and affidavit nor a petition positively verified has been 

filed, the trial court was without authority to issue the peremptory writ of mandamus.” Baldonado-Bellamy argues that to the 

extent Malone’s “Complaint for Writ of Mandamus” may be 

considered a petition, it was not positively verified, and that to 

the extent it may be considered a motion, it was not accompanied by a supporting affidavit sworn to by Malone. She notes 

that Malone’s pleading attached affidavits of fact witnesses but 

that Malone did not swear to or file an affidavit setting forth 

facts to establish his right to the writ of mandamus.

Malone does not dispute that he did not file either a verified 

petition or a motion and affidavit as required by § 25-2160. 

Instead, he argues that he filed for mandamus under the public 

records statutes, which do not contain the same requirement. 

He further argues that any jurisdictional defect was cured 

because the court held a hearing at which he provided sworn 

testimony to support his request.

[3] Malone filed his petition pursuant to § 84-712.03(1)(a), 

which provides that “[a]ny person denied any rights granted 

by sections 84-712 to 84-712.03 may elect to . . . [f]ile for 

speedy relief by a writ of mandamus in the district court within 

whose jurisdiction the state, county, or political subdivision 
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officer who has custody of the public record can be served[.]” 

We have said, “In the context of a public records denial, a 

district court’s jurisdiction over a writ of mandamus is governed by § 84-712.03, and such jurisdiction does not turn on 

whether the claim advanced by the relator has merit.” State 

ex rel. BH Media Group v. Frakes, 305 Neb. 780, 789, 943 

N.W.2d 231, 241 (2020). Although jurisdiction does not turn 

on the merits of the claim advanced, § 84-712.03(1)(a) provides that a person denied rights under the public records 

statutes may seek relief by a writ of mandamus in a district 

court. The procedure for a writ of mandamus in district courts 

is governed by Neb. Rev. Stat. §§ 25-2156 through 25-2169 

(Reissue 2016), and we read the reference to “writ of mandamus in the district court” in § 84-712.03(1)(a) as incorporating 

such statutes to govern the procedure for obtaining the relief 

authorized by § 84-712.03(1)(a). Therefore, a person choosing to seek speedy relief by a writ of mandamus pursuant to 

§ 84-712.03(1)(a) must follow the procedural requirements set 

forth in §§ 25-2156 through 25-2169.

In State ex rel. Krieger v. Board of Supervisors, 171 Neb. 

117, 120-21, 105 N.W.2d 721, 724-25 (1960), we summarized 

the statutory procedure in a mandamus action as follows:

The regular procedure in mandamus, after a petition 

therefor has been filed, is to make an application for a writ 

by motion supported by affidavit, whereupon the court 

may grant the writ without notice, may require notice to 

be given, or may grant an order to show cause why the 

writ should not be allowed. See § 25-2160 . . . . When 

the right to the writ is clear, and it is apparent that no 

valid excuse can be given for failure to perform the 

duty, a peremptory writ should be issued. In all other 

cases, when a writ is issued, it should be in the alternative and contain an order to show cause. See §§ 25-2158 

and 25-2159 . . . . The alternative writ and the answer 

thereto constitute the pleadings in any case wherein an 

alternative writ has been issued and no other pleadings 
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are permitted. See §§ 25-2162 and 25-2164 . . . . If no 

answer is filed to an alternative writ then a peremptory 

writ must be allowed. § 25-2163 . . . . Generally, when 

a hearing on an application is ordered and notice thereof 

given or an order to show cause has been issued and 

served and a return in either situation presents an issue or 

issues of fact, the court should not try such issue or issues 

at that stage of the proceedings but, in such case, issue 

a writ. However, such writ should be an alternative writ 

and issues should be made up thereon by the filing of an 

answer thereto and then tried on the issue or issues raised 

thereby. . . . However, under our holdings, if no writ has 

been issued the case may be heard on the petition and 

response thereto when a hearing or order to show cause 

has been ordered under section 25-2160 . . . and notice 

thereof given.

[4] Our case law has long recognized that the “motion . . . 

upon affidavit” requirement of § 25-2160 may be fulfilled by 

a verified petition, and we have also long stressed the importance of the motion and affidavit or verified petition, stating, 

“‘An action to procure the issuance of a writ of mandamus is 

not begun until a motion and affidavit, or a petition verified 

positively, is filed in the district court . . . .’” Little v. Board 

of County Commissioners, 179 Neb. 655, 660, 140 N.W.2d 1, 

5 (1966) (quoting State v. Harrington, 78 Neb. 395, 110 N.W. 

1016 (1907)). See, also, State ex rel. Van Cleave v. City of No. 

Platte, 213 Neb. 426, 429, 329 N.W.2d 358, 360 (1983) (noting in part that verification “upon which a writ of mandamus 

is sought must be positively verified, and a verification based 

upon mere belief is inadequate”).

[5] We have characterized the foregoing requirements as 

jurisdictional. In State v. Harrington, this court stated that 

“a court has no power or jurisdiction to issue a peremptory 

writ without, first, the filing of the application in the court,” 

78 Neb. at 400, 110 N.W. at 1017-18, and that “a notice that 

at some future time the relator would apply [for a writ of 
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mandamus] has no substantial basis and . . . such a notice 

served at such a time was insufficient to confer jurisdiction 

upon the district court,” 78 Neb. at 399, 110 N.W. at 1017. 

Based on this precedent, the filing of a motion and affidavit or 

a verified petition is a jurisdictional requirement before a district court may issue a writ of mandamus, and until such filing 

is made, the court does not have jurisdiction over an action for 

writ of mandamus.

Malone does not dispute that he did not file a verified petition or a motion and affidavit. Instead, he argues that the statutory requirement for a motion and affidavit was met when the 

court ordered a trial and took sworn testimony. He notes that 

this court stated that the purpose of the holding in State ex rel. 

Van Cleave v. City of No. Platte was so that “the trial court is 

assured that there is someone who represents to the court that 

the facts presented are true and who may be subject to perjury 

if it later proves otherwise.” 213 Neb. at 430, 329 N.W.2d at 

361. Malone argues that in this case, the district court heard 

sworn testimony by three witnesses, including Malone, and the 

court therefore based its decision on sworn statements.

We have not held that sworn testimony is an acceptable 

substitute for the “motion . . . upon affidavit” under § 25-2160, 

and the only alternative that our case law has recognized is a 

petition verified positively. See, State ex rel. Van Cleave v. City 

of No. Platte, supra; Little v. Board of County Commissioners, 

supra. We note that the section of State ex rel. Krieger v. 

Board of Supervisors, 171 Neb. 117, 121, 105 N.W.2d 721, 

725 (1960), quoted above with regard to the regular procedure 

in mandamus indicates that there is case law to the effect that 

under appropriate circumstances, “if no writ has been issued 

the case may be heard on the petition and response thereto.” 

However, we do not read State ex rel. Krieger to excuse failure to meet the “motion . . . upon affidavit” requirement of 

§ 25-2160; it instead addresses a court’s failure to issue an 

alternative writ as required under § 25-2159.
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Malone’s argument might appear to have some support 

from other jurisdictions. In Austin v. City of San Antonio, 630 

S.W.2d 391, 393 (Tex. App. 1982), the court stated:

While a petition for writ of mandamus should be verified, 

that requirement has been relaxed where, as here, there 

has been a full evidentiary hearing. . . . And that defect 

may be waived, as it was in this case when the agency 

failed to raise the issue before the trial court. . . . We find, 

therefore, that any defects in the respective parties’ pleadings were waived, and that the issues raised by the parties 

were tried by consent.

We note that unlike the agency in Austin v. City of San Antonio, 

supra, Baldonado-Bellamy in this case raised Malone’s failure 

to comply with § 25-2160. Therefore, there was no waiver or 

consent in this case. Furthermore, as noted above, our precedent treats § 25-2160 as imposing a jurisdictional requirement, and parties cannot waive a jurisdictional requirement. 

See DeLima v. Tsevi, 301 Neb. 933, 921 N.W.2d 89 (2018) 

(parties cannot confer subject matter jurisdiction upon judicial 

tribunal by either acquiescence or consent, nor may subject 

matter jurisdiction be created by waiver, estoppel, consent, or 

conduct of parties).

We reject Malone’s argument that the sworn testimony at 

trial satisfied the jurisdictional requirement of § 25-2160. We 

conclude that because Malone did not file a motion and affidavit or a properly verified petition, the mandamus action was 

not begun and the district court did not have jurisdiction to 

order such trial.

[6] In this case, the district court dismissed Malone’s action 

for writ of mandamus based on the merits. However, the 

court should not have reached the merits, because the action 

had not been begun in the manner required by law, and the 

court therefore should have dismissed for lack of jurisdiction. 

Because the district court lacked jurisdiction over the mandamus action, we lack jurisdiction of this appeal. When a trial 

court lacks jurisdiction to adjudicate the merits of a claim, 
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issue, or question, an appellate court also lacks the power 

to determine the merits of the claim, issue, or question presented to the lower court. State v. McGuire, 301 Neb. 895, 921 

N.W.2d 77 (2018). Therefore, we must dismiss this appeal for 

lack of jurisdiction.

CONCLUSION

We conclude that because Malone did not file a motion and 

affidavit or a verified petition, the district court lacked jurisdiction of this proceeding for mandamus. Consequently, we lack 

jurisdiction of this appeal, and we therefore dismiss this appeal 

for lack of jurisdiction.

Appeal dismissed.

Freudenberg, J., not participating.