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Date: 03-24-2018

Case Style:

Billy Richard Glaze vs. State of Minnesota

Case Number: A16-2028

Judge: Anne K. McKeig


Plaintiff's Attorney: Lori Swanson, Attorney General
Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, Brittany D. Lawonn, Assistant County Attorney

Defendant's Attorney:
Edward B. Magarian
Daniel D. Falknor
Julie Jonas
Adnan Sultan

Description: In 1989, following a jury trial, Billy Richard Glaze was convicted of multiple counts
of first degree-murder during a sexual assault and second-degree intentional murder for the
deaths of three Native American women. The three women had each been beaten to death
and were left naked and posed with large sticks protruding from their vaginas. The bodies
were discovered at different locations around Minneapolis in areas frequented by
transients. Due to the amount of debris in each location, investigators collected and tested
hundreds of items of potential evidence. DNA testing did not reveal a direct link between
Glaze and the crime scenes. At trial, the State introduced evidence that suggested that
Glaze had animus towards Native American women and that he fantasized about sexually
mutilating them. The State also introduced evidence that Glaze had given his girlfriend a
ring belonging to one of the victims and evidence of shoe prints found at that victim’s
murder scene that were consistent with shoes belonging to Glaze. We affirmed Glaze’s
convictions on appeal, relying on the “overwhelming evidence of [his] guilt.” State v.
Glaze, 452 N.W.2d 655, 661 (Minn. 1990).
In 2007, Glaze filed a motion in Hennepin County District Court requesting forensic
DNA testing not available at the time of his trial to demonstrate his actual innocence. See
Minn. Stat. § 590.01, subd. 1a (2016) (allowing a convicted person to make a motion for
DNA testing to demonstrate actual innocence). The motion was granted, and the parties
spent the next 7 years litigating the scope of the 2007 order, including what items could be
tested and who would conduct the testing.
In June of 2014, Glaze filed an “Amended Petition for Postconviction Relief.”
Glaze argued that the newly discovered evidence—results from DNA testing—placed an
alternative perpetrator, J.A.S., at two of the crime scenes. Glaze requested that his
convictions be vacated and that he be granted a new trial. In the alternative, Glaze
requested an evidentiary hearing to resolve any factual disputes regarding his newly
discovered evidence from the DNA testing. Over the next 18 months, the parties submitted
a flurry of motions in which they strenuously disagreed about the significance of the DNA
testing. In August of 2015, the district court ordered additional DNA testing and reserved
judgment on whether to conduct an evidentiary hearing.
On December 22, 2015, Billy Glaze died. Less than 2 weeks later, the State moved
to dismiss Glaze’s postconviction petition as moot given Glaze’s death. The attorneys who
had been representing Glaze in the postconviction proceedings argued that Glaze’s petition
was not moot because the district court could grant “effectual relief” by “clearing [Glaze’s]
name—his dying wish.” In the alternative, they argued that, even if the petition was
technically moot, the “significant public interest exception” to the mootness doctrine
applied because the petition was “functionally justiciable” and presented “important public
issues of statewide significance.”
Before the district court reached a decision on the State’s motion to dismiss for
mootness, the personal representative of Glaze’s estate, Debra Kovats, filed a motion to
substitute herself as the petitioner in Glaze’s postconviction case. She also moved to
amend the caption of the postconviction proceedings as follows: “Billy Richard Glaze,
Debra Kovats, Personal Representative of the Estate of Billy Richard Glaze, Petitioner, vs.
State of Minnesota, Respondent.” The personal representative’s attorneys, who were also
the attorneys who had been representing Glaze in the postconviction proceedings, argued
that substitution was permitted under Minn. R. Civ. P. 25.01.1 The State opposed the
personal representative’s request, arguing that the civil rules cannot be used to substitute a
party in a postconviction case.
On November 2, 2016, the district court granted the State’s motion to dismiss,
concluding that the petition was technically moot due to Glaze’s death, and that the
significant-public-interest exception to the mootness doctrine was not satisfied. The
court’s order did not address the personal representative’s motions for substitution and
caption amendment. The attorneys representing the personal representative did not bring
this omission to the postconviction court’s attention. Instead, the attorneys filed a notice

1 Rule 25.01 provides in part that “[i]f a party dies and the claim is not extinguished or barred, the court may order substitution of the proper parties.”
of appeal, which was captioned “Billy Richard Glaze, Petitioner, vs. State of Minnesota,
Respondent” and read:
PLEASE TAKE NOTICE that pursuant to Minnesota Rule of Criminal Procedure 29.02 and Minn. Stat. § 590.06 the above-named Petitioner (Appellant) appeals to the Supreme Court of the State of Minnesota and seeks review of the District Court’s order dated November 2, 2016, granting Respondent (Appellee) State of Minnesota’s motion to dismiss Petitioner’s Petition for Post-Conviction relief as moot. Petitioner was convicted in 1989 of first degree murder.

The substance of the appeal to this court concerned the district court’s order
dismissing Glaze’s postconviction petition as moot. The attorneys’ initial briefing (in a
footnote) addressed the personal representative’s unresolved motions for substitution and
caption amendment, but did not otherwise discuss the justiciability of the appeal. Before
oral argument, we requested supplemental briefing on the issue of whether the appeal could
proceed on the merits “in the absence of a substituted party for appellant.”2

2 Without discussing the issue of whether a claim for postconviction relief is extinguished or barred by a party’s death, the attorneys who filed the notice of appeal argue that we could substitute the personal representative as a party in this case under Minn. R. Civ. P. 25.01 (providing in part that “[i]f a party dies and the claim is not extinguished or barred, the court may order substitution of the proper parties”). Because we conclude that an appellate court’s authority to substitute a party following the death of a party is controlled by Minn. R. Civ. App. P. 143.02, not Minn. R. Civ. P. 25.01, we need not decide whether a claim for postconviction relief is extinguished or barred by a party’s death. Minn. R. Civ. App. P. 143.02 provides that: “If a party entitled to appeal dies before filing a notice of appeal, the notice of appeal may be filed by the decedent’s personal representative or, if there is no personal representative, by the attorney of record within the time prescribed by these rules.” (Emphasis added). The filing of a notice of appeal by the attorneys who had been representing Glaze in the postconviction proceedings was not authorized by Rule 143.02 because there is a personal representative of the estate of Billy Glaze. Moreover, because the personal representative failed to file a notice of appeal within the time prescribed by the rules, the provision of Rule 143.02 that allows party substitution in the appellate courts does not apply.

Although this case is captioned “Billy Richard Glaze, Appellant, vs. State of
Minnesota, Respondent,” Billy Glaze did not file this appeal. Indeed, Mr. Glaze died well
before the district court dismissed his postconviction petition. It is equally clear that the
personal representative of the Estate of Billy Glaze did not file this appeal because she is
neither listed in the caption nor mentioned in the body of the notice of appeal. Instead, this
appeal was filed by the attorneys who had been representing Glaze before his death. We
conclude that these attorneys, whose attorney-client relationship with Glaze terminated on
his death and who are not aggrieved parties themselves, do not have standing to pursue
Glaze’s postconviction claims on appeal. Thus, we lack appellate jurisdiction and must
dismiss the appeal.
Jurisdiction is fundamental to the exercise of judicial power. See In re Application
of the Senate, 10 Minn. 78, 81 (1865). An essential element of jurisdiction is standing of
the parties, because the absence of a party’s standing “bars consideration of the claim by
the court.” In re Custody of D.T.R., 796 N.W.2d 509, 512 (Minn. 2011).3 Standing cannot
be waived by the parties, see United States v. Hays, 515 U.S. 737, 742 (1995), and must be
maintained at each stage of litigation, including on appeal, D.T.R., 796 N.W.2d at 512.
Accordingly, we examine standing regardless of whether it was raised by the parties, and

3 This distinguishes standing from mootness, which is a “flexible discretionary doctrine, not a mechanical rule that is invoked automatically.” Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn. 2005).
we determine the existence of standing de novo. League of Women Voters Minn. v. Ritchie,
819 N.W.2d 636, 645 n.7 (Minn. 2012); D.T.R., 796 N.W. at 512.
“Standing is the requirement that a party has a sufficient stake in a justiciable
controversy[.]” State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 493 (Minn.
1996). To have standing on appeal, a party must be “aggrieved” by the underlying
adjudication. D.T.R., 796 N.W.2d at 513 (discussing the requirements of Minn. R. Civ.
App. P. 103.03). A person with a “direct interest in the litigation” is aggrieved when his
or her “personal right” was “injuriously affected by the underlying adjudication.” Id.
(citation omitted) (internal quotation marks omitted).
Here, the attorneys who filed the notice of appeal do not represent any aggrieved
party before this court. At the moment Billy Glaze died, the attorneys ceased to represent
him, and from that point forward they lacked authority to act on his behalf.4 See Pautz v.

4 Our conclusion that Glaze’s death terminated the attorneys’ authority to act on his behalf is not inconsistent with In re Guardianship of Tschumy, 853 N.W.2d 728 (Minn. 2014). In that case, the district court appointed a guardian for Mr. Tschumy. Id. at 731. When a third party questioned whether the letter of general guardianship allowed the guardian to direct removal from life support, the district court appointed an attorney “to represent Tschumy, investigate what Tschumy would want, and make a recommendation to the court.” Id. at 732. Although the district court concluded the letter of general guardianship did not grant the guardian unrestricted authority to direct the removal of life support, the court authorized the removal of life support and Mr. Tschumy died soon thereafter. Id. at 732–33. Before our court, the primary jurisdictional issue was whether the guardian’s legal interest in litigation expired upon the death of Mr. Tschumy. Id. at 734. With regard to the attorney the district court appointed to represent Mr. Tschumy, we expressed “no opinion on the attorney’s authority or on the details of the process by which the case reached us.” Id. at 733 n.3.

This case also differs from State v. Burrell, 837 N.W.2d 459 (Minn. 2013), where we held that the defendant’s death pending resolution of his appeal of his conviction abated the conviction. Id. at 470. Courts that have considered whether counsel may move for
Am. Ins. Co., 128 N.W.2d 731, 738 (Minn. 1964) (explaining that the attorney’s authority
to act for the plaintiff had been terminated by the death of the plaintiff); Bergum v.
Palmborg, 58 N.W.2d 722, 722 (Minn. 1953) (same); see also Brass v. State, 306 P.3d
393, 394 (Nev. 2013) (“Generally, counsel cannot act on a deceased client’s behalf.”); Hart
v. Blabey, 35 N.E.2d 657, 658 (N.Y. 1941) (explaining that the authority of the attorney
who had been representing the plaintiff “ceased upon [her] death,” and therefore, the
attorney could not file a notice of appeal in her behalf). Moreover, the attorneys do not
claim, nor does there appear to be any legal authority for a claim, that they are aggrieved
parties themselves. Cf. State ex rel. Nordin v. Probate Court of Hennepin Cty., 273 N.W.
636, 637 (Minn. 1937) (explaining that attorneys are not parties to, have no interest in, and
are not entitled to review in litigation in which they appear “solely as the representative of
the client”). In sum, no “Appellant” with standing has appeared before us in this appeal.
The attorneys urge us to consider the “merits” of this appeal—whether Glaze’s
postconviction petition is moot—even though no aggrieved party is before us. In support
of this argument, the attorneys cite Witthuhn v. Durbahn, 157 N.W.2d 360 (Minn. 1968).

abatement under such circumstances have allowed motions for abatement ab initio under several different theories. See, e.g., United States v. Christopher, 273 F.3d 294, 296 n.1 (3d Cir. 2001) (rejecting the government’s argument that the deceased defendant’s attorney did not have authority to request that the conviction and order of restitution be abated, explaining that the defendant’s personal representative had been substituted as appellant under Fed. R. App. P. 43(a)(1)); United States v. Crawford, 36 C.M.R. 697, 702 (A.B.R. 1966) (acknowledging that Crawford’s death terminated his attorney-client relationship with appellate counsel, but treating appellate counsel as an amicus curiae on the issue of whether the appeal and prosecution should be abated ab initio); State v. Korsen, 111 P.3d 130, 132–33 (Idaho 2005) (concluding that party substitution was not required when “the attorney for the deceased criminal appellant . . . merely wishes to conclude the criminal proceeding” through a motion for abatement ab initio).
In Witthuhn, the district court dismissed a negligence action after the original plaintiff died.
Id. at 361. The special administratrix of plaintiff’s estate appealed the dismissal in a case
captioned “Eraine R. Witthuhn, Special Administratrix of Estate of Everett Witthuhn,
Deceased, Appellant, v. Merle C. Durbahn et al., Respondents.” Id. at 360. Although the
special administratrix failed to make a motion to substitute before the district court, we
explained that the absence of a motion to substitute “does not, at this stage of the
proceedings, justify the [district court’s] order for dismissal” because Rule 25.01 “does not
limit the time within which the motion to substitute must be made.” Id. at 361; see also
Minn. R. Civ. P. 25.01. In other words, if we had reversed the district court’s order for
dismissal, nothing would have prevented the special administratrix from substituting
herself as plaintiff on remand.5
Our conclusion in Witthuhn does not resolve the justiciability issue presented by this
appeal. There was no question in Witthuhn that the notice of appeal was filed by an
aggrieved party, namely the special administratrix. Here, the notice of appeal was filed by
attorneys who do not themselves have standing to seek review of the district court order
dismissing Glaze’s postconviction petition. Thus, we lack appellate jurisdiction in this
case and must dismiss the appeal.

Outcome: For the foregoing reason, we dismiss this appeal as nonjusticiable.

Appeal dismissed.

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