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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
BURRIES v. SCHMADERER
Cite as 30 Neb. App. 359
Anthony Burries, appellant, v.
Todd Schmaderer, appellee.
___ N.W.2d ___
Filed November 9, 2021. No. A-20-484.
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. Mandamus. A person denied access to a public record may elect to file
for speedy relief by a writ of mandamus.
3. ____. A person choosing to seek speedy relief by a writ of mandamus
pursuant to Neb. Rev. Stat. § 84-712.03 (Cum. Supp. 2018) of the pub-
lic records statutes must follow the procedural requirements set forth in
Neb. Rev. Stat. §§ 25-2156 through 25-2169 (Reissue 2016).
4. Mandamus: Jurisdiction. The filing of a motion and affidavit or a veri-
fied 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.
5. 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 ques-
tion presented to the lower court.
Appeal from the District Court for Douglas County: Patricia
A. Lamberty, Judge. Appeal dismissed.
Anthony Burries, pro se.
Timothy G. Himes, Sr., Senior Assistant Omaha City
Attorney, for appellee.
Riedmann, Bishop, and Arterburn, Judges.
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
BURRIES v. SCHMADERER
Cite as 30 Neb. App. 359
Arterburn, Judge.
INTRODUCTION
Anthony Burries, an inmate at the Nebraska State Penitentiary,
sent public records request letters to Omaha Police Chief Todd
Schmaderer under Neb. Rev. Stat. § 84-712 (Reissue 2014),
seeking records related to the murder of Tina Hoult, which
Burries was convicted of committing. Burries’ requests were
denied, and he sought a writ of mandamus from the district
court for Douglas County. Ultimately, the district court granted
Schmaderer’s motion to dismiss the petition for writ of man-
damus on the basis that Burries had failed to adequately allege
that the documents he requested were in Schmaderer’s posses-
sion, were not protected from disclosure, and were not readily
available from other sources.
Burries has appealed from the district court’s decision. Upon
our review, we conclude that the district court lacked jurisdic-
tion to consider Burries’ petition for writ of mandamus. And,
as a result, we lack jurisdiction over this appeal. We therefore
dismiss this appeal for lack of jurisdiction.
BACKGROUND
Burries sent Schmaderer a letter dated March 11, 2019,
wherein Burries requested copies of various “public records”
pursuant to § 84-712. Burries set forth seven separate cat-
egories of information he requested related to the murder of
Hoult, including all police reports; cellular telephone informa-
tion obtained from cellular telephones confiscated by police
officers, specifically, all extracted text messages, call logs,
and emails from the cellular telephones; records related to
the investigation into a certain vehicle linked to the murder;
results from any DNA testing conducted and information as
to why certain items were not tested for DNA; video sur-
veillance obtained by police of at least eight different loca-
tions; any “crimestopper tips” associated with the murder; and
all newspaper, television, and radio news stories discussing
the murder.
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
BURRIES v. SCHMADERER
Cite as 30 Neb. App. 359
In response to Burries’ requests, a deputy chief from the
Omaha Police Department sent Burries a letter explaining:
The only report that is considered public record under
this request is the Incident Report[]. I have included a
copy of the Incident Report for this homicide with this
letter. All other materials [are] considered investigative
and [are] not considered public record under Neb. Rev.
Stat. § 84-712[.05](5). Therefore your request for that
material is denied.
As stated in the letter, the incident report related to Hoult’s
murder was attached.
Burries sent a second letter to Schmaderer on March 25,
2019, requesting the same “public records” as he requested in
his March 11 letter. In response to the March 25 letter, a deputy
city attorney from the city of Omaha sent Burries a letter again
explaining that the information he requested was investigatory
in nature and that he did not have a right to such records pur-
suant to the Nebraska public records statutes, Neb. Rev. Stat.
§ 84-712 et. seq. (Reissue 2014 & Cum. Supp. 2018). The let-
ter provided, in pertinent part:
In your request, you seek all related documents, audio,
images, and footage concerning your murder conviction
and then you seek to have the police department respond
to questions. In regards to your requests requesting the
Omaha Police Department to do additional investigative
work or to respond to your questions, that is beyond the
Nebraska Public Records Act and such work will not be
done. The remaining items would generally be found in
the District Court file and include evidence offered, testi-
mony, exhibit lists, and any footage offered into evidence.
You may contact the Clerk of the District Court to get
these documents . . . .
The investigation of the Omaha Police Department
into the murder of . . . Hoult are police investigative
records. Other than the incident report (which I will be
happy to provide if you need it), any such documents are
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
BURRIES v. SCHMADERER
Cite as 30 Neb. App. 359
records developed as part of a law enforcement agency’s
investigation and constitute part of the investigation
and are withheld pursuant to . . . § 84-712.05(5) . . . .
The exception would be any documents that were dis-
closed in an open court proceeding as described above.
If you have a log of the items admitted into evidence,
we will certainly provide you an opportunity to review
those items.
On October 23, 2019, Burries filed a pro se “Petition for
Writ of Mandamus” asking the district court to issue an order
compelling Schmaderer to turn over the public records related
to the murder of Hoult that he had previously requested.
Burries referenced and incorporated into his petition his letters
to Schmaderer dated March 11, 2019, and March 25, 2019.
He also attached the letters sent in response to his requests.
Burries’ “Petition for Writ of Mandamus” did not include a
notarized verification, and there is no affidavit in support of the
petition present in the record.
Schmaderer filed a motion to dismiss Burries’ petition for
writ of mandamus. In the motion, Schmaderer alleged that
the petition failed to state a claim upon which relief could be
granted. Specifically, Schmaderer indicated that Burries failed
to affirmatively allege that the public records requested were
in Schmaderer’s possession, were not protected from disclosure
by § 84-712.05, and were not readily available from other
sources. Schmaderer also alleged that Burries’ petition failed
to comply with certain procedural requirements. A hearing was
scheduled on the motion to dismiss.
Burries attempted to subpoena 16 witnesses to appear and
testify at the scheduled hearing on Schmaderer’s motion to dis-
miss. The court denied the subpoenas. The court stated:
[Burries’] praecipes are requesting subpoenas for a
hearing which is scheduled for June 11, 2020. This hear-
ing is on [Schmaderer’s] Motion to Dismiss. Said motion
will be heard on the face of the pleadings only and no
testimony or evidence will be allowed. The filing of the
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
BURRIES v. SCHMADERER
Cite as 30 Neb. App. 359
Praecipes for Subpoena Duces Tecum is premature as this
is not a trial, it is a hearing on [Schmaderer’s] Motion
to Dismiss.
After the hearing on Schmaderer’s motion to dismiss, the
district court entered an order sustaining the motion and dis-
missing Burries’ petition with prejudice. The order provided:
“[Burries] has failed to demonstrate that the documents,
information, and things identified in his requests are: a. in
[Schmaderer’s] possession; b. not protected from disclosure
by the Public Records Statutes, specifically Neb. Rev. Stat.
§ 84-712.05; and c. not readily available from other sources.”
Burries appeals from the district court’s decision to sustain
the motion to dismiss.
ASSIGNMENTS OF ERROR
In his brief on appeal, Burries alleges six assignments of
error. However, these assignments of error can be consolidated
into one general assertion that the district court erred in grant-
ing Schmaderer’s motion to dismiss the petition for 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 inde-
pendent of the lower court’s decision. State ex rel. Malone v.
Baldonado-Bellamy, 307 Neb. 549, 950 N.W.2d 81 (2020).
ANALYSIS
[2] Before reaching the legal issues presented for review, an
appellate court must first determine whether it has jurisdiction
to decide them. See id. In this case, Burries seeks access to
various “public records.” A person denied access to a public
record, as Burries was in this case, may elect to file for speedy
relief by a writ of mandamus. See § 84-712.03.
[3] The procedure for a writ of mandamus in district courts
is governed by Neb. Rev. Stat. §§ 25-2156 through 25-2169
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
BURRIES v. SCHMADERER
Cite as 30 Neb. App. 359
(Reissue 2016). A person choosing to seek speedy relief by
a writ of mandamus pursuant to § 84-712.03 of the public
records statutes must follow the procedural requirements set
forth in §§ 25-2156 through 25-2169. See State ex rel. Malone
v. Baldonado-Bellamy, supra.
[4] One such procedural requirement for a writ of manda-
mus is delineated in § 25-2160, which provides, in part, that
“[t]he motion for the writ [of mandamus] must be made upon
affidavit.” It has long been held that the “motion . . . upon
affidavit” requirement of § 25-2160 may also be fulfilled
by a verified petition. See, e.g., Little v. Board of County
Commissioners, 179 Neb. 655, 140 N.W.2d 1 (1966). The
Nebraska Supreme Court has previously characterized the
requirement of a motion upon affidavit or a verified petition
to be jurisdictional: “[T]he filing of a motion and affidavit or
a verified petition is a jurisdictional requirement before a dis-
trict 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.” State ex rel. Malone v. Baldonado-
Bellamy, 307 Neb. at 559, 950 N.W.2d at 87.
In this case, our record does not contain a verified peti-
tion for writ of mandamus. Burries’ petition did not include
a notarized verification. Our record also does not contain a
motion for a writ of mandamus that is accompanied by a sup-
porting affidavit. Prior to issuing this opinion, this court issued
an order to show cause giving Burries the opportunity to
supplement the record in order to demonstrate his compliance
with the jurisdictional requirements of § 25-2160. Although
Burries responded to our order, he failed to provide any addi-
tional record that would impact our jurisdictional analysis.
Accordingly, we must conclude that because Burries 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 consider Burries’ petition.
[5] In this case, the district court dismissed Burries’ action
for writ of mandamus based on the merits. However, the
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
BURRIES v. SCHMADERER
Cite as 30 Neb. App. 359
court should not have reached the merits, because the action
had not been initiated 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 manda-
mus action, we lack jurisdiction of this appeal. 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 pre-
sented 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 Burries did not file a motion and
affidavit or a verified petition, the district court lacked juris-
diction of this proceeding for mandamus. Consequently, we
lack jurisdiction of this appeal, and we therefore dismiss this
appeal for lack of jurisdiction.
Appeal dismissed.