Burries v. Schmaderer, 30 Neb. Ct. App. 359

Inmate Anthony Burries sent public-records requests to Omaha Police Chief Todd Schmaderer seeking investigative materials related to the murder for which Burries was convicted.
Omaha provided only the incident report and denied other materials as investigatory records under the Nebraska Public Records Act, directing Burries to the district court file for disclosed evidence.
Burries filed a pro se "Petition for Writ of Mandamus" in Douglas County, attaching his request letters and the department's responses, but the petition lacked a notarized verification and no supporting affidavit appears in the record.
Schmaderer moved to dismiss, arguing Burries failed to plead that records were in Schmaderer’s possession, were not protected by statutory exemptions, were not available elsewhere, and that procedural mandamus requirements were unmet.
The district court dismissed the petition with prejudice on the merits for failure to show possession, lack of exemption, and unavailability; Burries appealed.
The Court of Appeals concluded Burries never complied with the jurisdictional requirement of filing a motion with affidavit or a verified petition for mandamus, so the district court lacked jurisdiction and the appeal was dismissed for lack of jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a writ of mandamus under the public records statute must be begun by a motion with affidavit or a verified petition	Burries contended his pro se petition initiated the action	Schmaderer: statute and precedent require a motion+affidavit or a verified petition	Requirement is jurisdictional; a motion+affidavit or verified petition is required
Whether Burries complied with the procedural verification/affidavit requirement	Burries relied on his filed petition and attached correspondence to proceed	Schmaderer: petition lacked notarized verification and no supporting affidavit was filed	Burries did not comply; mandamus action was not properly begun
Whether the district court properly dismissed on the merits for failure to plead possession, exemption, and availability	Burries argued dismissal on merits was erroneous	Schmaderer defended the merits dismissal as appropriate	Court should not have reached merits because it lacked jurisdiction; merits decision vacated by jurisdictional defect

State ex rel. Malone v. Baldonado-Bellamy, 307 Neb. 549 (2020) (affirms mandamus under public records statute must follow writ procedures and jurisdictional verification requirement)
Little v. Bd. of Cty. Comm’rs, 179 Neb. 655 (1966) (verified petition may satisfy statutory "motion upon affidavit" requirement)
State v. McGuire, 301 Neb. 895 (2018) (if trial court lacks jurisdiction, appellate court lacks power to decide merits)