State ex. rel. Malone v. Baldonado-Bellamy, 950 N.W.2d 81

Malone was convicted in a 2017 jury trial and, on appeal, believed the bill of exceptions omitted an exchange from his cross-examination.
He asked the official court reporter (Baldonado-Bellamy) and the district clerk (Friend) for the trial audio; the Attorney General’s office concluded the audio was not a public record under Nebraska’s public records statutes and told Malone he could seek mandamus.
Malone filed a "Complaint for Writ of Mandamus" under Neb. Rev. Stat. § 84-712.03 but did not file a motion and affidavit or a positively verified petition as required by Nebraska mandamus procedure.
The district court held a trial with sworn testimony, ruled on the merits that court rules (not the public records statutes) govern access to trial recordings, and denied the writ.
Appellees argued the district court lacked jurisdiction because Malone failed to commence mandamus properly; the Nebraska Supreme Court agreed and dismissed the appeal for lack of jurisdiction because the statutory verification/motion-and-affidavit requirement was not met.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court reporter notes/audio are public records under the Nebraska Public Records Act	Malone: audio and reporter notes are public records under § 84-712.01 and thus obtainable via § 84-712.03 mandamus remedy	Baldonado-Bellamy/Friend: access to trial recordings and bills of exceptions is governed by Supreme Court rules and statutes delegating rulemaking to the Supreme Court, so public records statutes do not apply	District court reached the merits and found public records statutes inapplicable; Supreme Court did not decide merits because of jurisdictional defect (appeal dismissed)
Whether failure to file a motion+affidavit or positively verified petition deprived the trial court of jurisdiction over the mandamus action	Malone: although he did not file a verified pleading, the defect was cured because the court held a full evidentiary hearing with sworn testimony	Baldonado-Bellamy: § 25-2160 requires a motion upon affidavit (or a positively verified petition); failure to comply is jurisdictional and cannot be cured by later hearing	Nebraska Supreme Court: filing a motion+affidavit or a positively verified petition is a jurisdictional prerequisite; sworn testimony at hearing does not cure the statutory requirement; district court lacked jurisdiction and appeal dismissed

State ex rel. Van Cleave v. City of No. Platte, 213 Neb. 426 (1983) (motion upon affidavit or positively verified petition required to confer jurisdiction in mandamus)
State ex rel. Krieger v. Board of Supervisors, 171 Neb. 117 (1960) (summary of statutory mandamus procedure and stages for alternative/peremptory writs)
Little v. Board of County Commissioners, 179 Neb. 655 (1966) (action for mandamus not begun until verified petition or motion and affidavit filed)
State v. Harrington, 78 Neb. 395 (1907) (court lacks power to issue peremptory writ absent proper application filed)
State ex rel. BH Media Group v. Frakes, 305 Neb. 780 (2020) (district court jurisdiction over public-records mandamus claims is governed by § 84-712.03)
In re App. No. C-4973 of Skrdlant, 305 Neb. 635 (2020) (jurisdictional questions of law reviewed independently by appellate court)