In re Petition for Disciplinary Action against Scott Selmer, a Minnesota Attorney, Registration No. 156024. , 866 N.W.2d 893 ( 2015 )

STATE OF MINNESOTA
IN SUPREME COURT
A14-0098
Original Jurisdiction Per Curiam
Took no part, Page, J.
In re Petition for Disciplinary Action
against Scott Selmer, a Minnesota Attorney,
Registration No. 156024Filed: July 15, 2015
Office of Appellate Courts
________________________
Martin A. Cole, Director, Patrick R. Burns, First Assistant Director, Office of Lawyers
Professional Responsibility, Saint Paul, Minnesota, for petitioner.
Scott Selmer, Minneapolis, Minnesota, pro se.
________________________
SYLLABUS
The referee’s determination that respondent engaged in professional misconduct
through a pattern of frivolous and harassing litigation, a failure to obey court orders, and
a failure to comply with legally proper discovery requests was not clearly erroneous.
Based on the misconduct and the aggravating factors, the appropriate discipline is an
indefinite suspension, with no right to petition for reinstatement for a minimum of 12
months.
1
OPINION
PER CURIAM.
The Director of the Office of Lawyers Professional Responsibility filed a petition
for disciplinary action against respondent Scott Selmer, alleging that Selmer committed
professional misconduct by engaging in a pattern of harassing and frivolous litigation,
failing to abide by court orders, and refusing to comply with discovery requests.
Following an evidentiary hearing, the referee found that Selmer violated Minn. R. Prof.
Conduct 1.1, 3.1, 3.4(c), 3.4(d), and 8.4(d) and that several aggravating factors were
present. The referee recommended a suspension for a minimum of 12 months. We
conclude that the referee’s findings and conclusions are not clearly erroneous and that an
indefinite suspension with no right to petition for reinstatement for a minimum of 12
months is the appropriate discipline for this misconduct.
Selmer was first licensed to practice law in Minnesota in 1984. We have imposed
discipline on Selmer on four prior occasions. In 1995 we publicly reprimanded Selmer
and placed him on probation for several violations, including abusing the discovery
process. In re Selmer, 529 N.W.2d 684, 685 (Minn. 1995). In 1995 we also affirmed an
admonition issued to Selmer for improperly charging a client. In 1997 we suspended
Selmer for engaging in a pattern of harassing and frivolous litigation and failing to
comply with discovery requests. In re Selmer, 568 N.W.2d 702, 704-05 (Minn. 1997).
Finally, in 2008, we publicly reprimanded Selmer and placed him on probation in part for
failing to pay a judgment entered against him. In re Selmer, 749 N.W.2d 30, 33 (Minn.
2008).
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On January 7, 2008, the St. Paul Urban League (“SPUL”) hired Selmer as
president and chief executive officer. In February 2011 the SPUL suspended operations
due to “severe fiscal and other mismanagement.” Subsequently, Selmer, the SPUL, and
various SPUL constituents became involved in multiple lawsuits spanning a significant
number of court files. The Director filed this petition for disciplinary action against
Selmer in January 2014 for his conduct in that litigation. Selmer filed a timely answer to
the petition, and we appointed a referee.
Following an evidentiary hearing, the referee issued findings of fact, conclusions,
and a recommendation for discipline. We turn now to a discussion of those findings and
conclusions.
Selmer v. Wilson matter
On December 14, 2011, Selmer filed a complaint against W.M.W. with the
Hennepin County District Court alleging that W.M.W. published and distributed false
statements about Selmer. On February 29, 2012, the district court ordered the parties to
file informational statements with the court before March 16, 2012, and also stated that
failure to file the statements would result in a dismissal with prejudice. Both parties
missed the March 16 deadline, and on April 2, 2012, the district court dismissed the
complaint with prejudice. Selmer subsequently brought a motion to vacate the dismissal.
At the hearing on the motion, Selmer admitted that he did not read the February order
requiring him to file an informational statement until after the deadline had passed. The
district court determined that Selmer’s mistake should not jeopardize the entire case and
issued an order vacating the dismissal, conditioned on Selmer paying $2,400 in sanctions.
3
Selmer has neither paid the sanctions nor taken any action to advance the litigation at the
district court.
On August 13, 2012, Selmer appealed the district court’s order that conditioned
the reinstatement of the case on his payment of sanctions. The Clerk of the Appellate
Courts notified Selmer of several deficiencies in his appeal, including the failure to
include an original signature on the statement of the case and that the affidavit of service
incorrectly stated the date the notice of appeal was served. On August 30, 2012, the court
of appeals issued an order directing Selmer to correct those deficiencies and to file a copy
of the district court’s order granting his application to proceed in forma pauperis (“IFP”),
as well as a completed transcript certificate. When Selmer failed to correct the
deficiencies, the court of appeals dismissed the appeal.
Selmer then filed a petition for review and an IFP motion with our court. On
October 29, 2012, the clerk’s office notified Selmer that it could not accept his petition
for review because it was single-spaced and did not include a notarized affidavit of
service. The clerk’s office also asked Selmer to correct the caption in his IFP motion and
gave him 7 days to refile the corrected documents. Selmer never corrected his petition
for review or IFP motion.
Selmer also filed a motion to reinstate his appeal with the court of appeals, which
the court denied. In the order denying the motion, the court noted that Selmer had not
corrected the filing deficiencies and had failed to timely order the transcript. Selmer
claimed that he had not received the notice of the case filing or the order requiring him to
correct filing deficiencies; the court noted, however, that the clerk had sent e-mail
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notifications to the address Selmer provided. The court concluded that Selmer’s “claim
that he had no notice of the filing deficiencies is not credible.” Selmer v. Wilson, No.
A12-1418, Order at 2 (Minn. App. filed Nov. 29, 2012). Selmer testified at the
evidentiary hearing that he did not see the notices and orders directing him to correct
filing deficiencies, an argument that the referee also determined was “not credible.”
Wilson v. Selmer matter
In a separate matter, W.M.W. and W.W. filed a lawsuit in Ramsey County District
Court against Selmer and other members of the SPUL, claiming, among other things, that
Selmer had breached his fiduciary duties to the SPUL. Selmer filed an answer with
sections labeled “affirmative defenses” and “counter claim.” Selmer’s counterclaim
stated that the SPUL deprived Selmer of his “right to receive a salary.” The other
defendants settled with the plaintiffs. On July 27, 2012, the district court issued an order
stating it would continue to exercise jurisdiction over Selmer’s remaining counterclaim
against the SPUL. On that same day, Selmer filed a complaint in Hennepin County
District Court against the SPUL seeking the same relief as the counterclaim.
On August 7, 2012, the plaintiffs served Selmer with a set of interrogatories and
requests for production of documents, captioned as venued in Ramsey County. Selmer
intentionally refused to respond to the requests, stating that the proper venue was
Hennepin County. The Ramsey County District Court then issued an order enjoining
Selmer from proceeding with the action in Hennepin County, noting that it was
“troubling” that Selmer had filed suit in Hennepin County on the same claim.
5
On October 16, 2012, the plaintiffs served Selmer with requests for admissions.
Having received no response to any discovery requests, the plaintiffs e-mailed Selmer
demanding a reply. Selmer’s response was that he “d[id] not intend to respond to
discovery that is not in the proper venue of Hennepin County.” The plaintiffs moved the
Hennepin County District Court to transfer Selmer’s suit to Ramsey County, and the
district court granted the motion. On December 14, 2012, the Ramsey County District
Court ordered Selmer to respond to the discovery requests and awarded costs and fees as
a sanction against Selmer. Selmer again intentionally refused to comply with the
discovery requests.
On March 15, 2013, the Ramsey County District Court held a settlement
conference at which Selmer stated that he would like to bring a formal motion to remove
the judge because she was “bigoted and biased against [him],” and that the matter should
be dismissed because the court did not have subject matter jurisdiction. Selmer never
brought formal motions to dismiss or to remove the judge.
Selmer then filed a voluntary dismissal of his counterclaim, stating that he had not
filed a counterclaim and asking that any claim “the court believes he has [made]” be
dismissed.1 On May 8, 2013, the plaintiffs brought a motion to dismiss Selmer’s
counterclaim for failure to comply with discovery requests. Selmer refused to attend the
hearing on the motion because he believed the court lacked jurisdiction. On June 10,
1
Selmer’s motion to voluntarily dismiss did not comply with Minn. R. Civ. P.
41.01(a), because the plaintiffs did not stipulate to the dismissal and a reply to the
counterclaim had already been filed when he filed the motion to dismiss it. See id.6
2013, the Ramsey County District Court dismissed Selmer’s counterclaim with prejudice
and entered judgment against Selmer in the amount of $8,912. A different Ramsey
County District Court judge then dismissed Selmer’s separate lawsuit against the SPUL,
holding that the action was barred by res judicata and collateral estoppel.
Throughout that litigation, Selmer filed multiple notices of appeal with the court
of appeals. First, on March 16, 2012, Selmer sought review of an order granting a
temporary restraining order and an order finding subject matter jurisdiction. Selmer also
filed an IFP motion in that appeal. The district court and the court of appeals denied the
IFP motion, stating that the appeal was frivolous. The court of appeals dismissed the
appeal “as taken from interlocutory, nonappealable orders.” Wilson v. Selmer, No. A12-
484, Order at 3 (Minn. App. filed Apr. 26, 2012).
On March 22, 2012, Selmer filed a petition for writs of prohibition and mandamus
with the court of appeals seeking to stop an evidentiary hearing, dissolve the restraining
order, require the plaintiffs to post a bond, and dismiss the plaintiffs’ complaint for lack
of subject matter jurisdiction. On April 12, 2012, the court of appeals ordered Selmer to
file additional copies of the petition, serve the petition on the plaintiffs, and pay the filing
fee. One month later, the court denied the petition in its entirety stating that Selmer had
not established that the issues were ripe for review or that “the ordinary remedy of a
direct appeal from an order denying relief would be inadequate.” Wilson v. Selmer, No.
A12-535, Order at 2 (Minn. App. filed May 15, 2012).
On June 8, 2012, Selmer filed another notice of appeal referencing an order filed
on June 6, 2012. The court of appeals dismissed the appeal, noting that Selmer did not
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pay the filing fee or file an IFP motion, that there was no order issued on June 6, 2012,
and that Selmer failed to provide a transcript of the scheduling conference that took place
on June 6. Wilson v. Selmer, No. A12-990, Order at 2-3 (Minn. App. filed June 14,
2012).
Finally, on September 28, 2012, Selmer filed a notice of appeal seeking review of
several orders and arguing that the district court lacked jurisdiction. The court of appeals
dismissed the appeal as moot, noting that the plaintiffs’ claims had settled. Wilson v.
Selmer, No. A12-1740, 2013 WL 1188032, at *1 (Minn. App. Mar. 25, 2013). Selmer
then petitioned our court for review of that court of appeals decision. We directed Selmer
to file an affidavit of service for the petition for review and IFP motion, and when Selmer
failed to comply, we dismissed his petition for review.
Selmer v. State matter
In July 2012 Selmer also filed an action in the United States District Court for the
District of Minnesota, naming the State of Minnesota, County of Ramsey, Judge
Margaret Marrinan, W.M.W., and W.W. as defendants. Selmer sought $500,000 “for
denial of his Constitutional rights to equal protection, due process, race discrimination
and deprivation of his property rights.” The court dismissed Selmer’s complaint with
prejudice the next day, concluding that the complaint was frivolous and intended to
harass.
The referee determined that Selmer’s conduct “in engaging in a pattern of
frivolous and harassing litigation, failing to abide by court orders, and failing to comply
with legally proper discovery requests, violated Rules 1.1, 3.1, 3.4(c), 3.4(d), and 8.4(d).”
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Selmer challenges several of the referee’s factual findings. Selmer also challenges
the referee’s conclusion that he violated the rules of professional conduct. Selmer asks
this court to dismiss all charges of misconduct.
I.
In a disciplinary proceeding, the Director has the “burden of proving by clear and
convincing evidence that the respondent violated the Rules of Professional Conduct.” In
re Grigsby, 764 N.W.2d 54, 60 (Minn. 2009). When a party to a disciplinary proceeding
orders a transcript, the referee’s findings of fact and conclusions of law are not
conclusive. Id. We do, however, give “great deference” to the referee’s findings and
uphold those findings “unless they are clearly erroneous.” In re Wentzell, 656 N.W.2d
402, 405 (Minn. 2003). A finding is clearly erroneous if we are “left with the definite
and firm conviction that a mistake has been made.” Id. (citation omitted) (internal
quotation marks omitted). If there is evidence in the record to support a referee’s finding,
the findings are not clearly erroneous. In re Albrecht, 779 N.W.2d 530, 540 (Minn.
2010). We review the interpretation of the Minnesota Rules of Professional Conduct de
novo, but we review the application of those rules to the facts for clear error.2 In re
Michael, 836 N.W.2d 753, 761 (Minn. 2013).
2
Selmer contends that the de novo standard of review is applicable in this case. It
is well settled, however, that although we retain the final responsibility for determining
the appropriate discipline, we give great deference to a referee’s findings. In re Nelson,
733 N.W.2d 458, 461 (Minn. 2007). We therefore review the referee’s findings and his
conclusions that Selmer’s conduct violated several rules of professional conduct for clear
error. See id.9
II.
We first address Selmer’s challenges to the referee’s findings of fact. Selmer
ordered a transcript, so we review the referee’s findings for clear error. See In re
Wentzell, 656 N.W.2d at 405. Selmer challenges the referee’s finding that he asserted a
counterclaim in the Wilson v. Selmer action, that he failed to bring a motion to dismiss for
lack of subject matter jurisdiction, and that he asked for money damages in his federal
lawsuit. Because there is evidence in the record to support the referee’s findings, we
conclude the referee’s findings are not clearly erroneous.
We begin with the referee’s finding that Selmer asserted a counterclaim in the
Wilson v. Selmer matter. Selmer labeled his assertion about his salary as a “counter
claim” in his amended answer. Selmer now contends that he intended to assert the
affirmative defense of “unclean hands,” but mislabeled it as a counterclaim. In a notice
of appeal, however, Selmer stated that he “ha[d] [a] legal [sic] asserted salary and
compensation claim against the St. Paul Urban League.” In addition, the Ramsey and
Hennepin County district courts, the court of appeals, and the attorney for the other
defendants in the case concluded that Selmer had asserted a counterclaim. We recognize
that the district court could have determined that Selmer mislabeled his claim and treated
his pleading as though he had designated the claim as an affirmative defense under Minn.
R. Civ. P. 8.03. Ultimately, however, there is evidence in the record supporting the
referee’s finding that Selmer asserted a counterclaim, and this finding is not clearly
erroneous.
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Selmer also disputes the referee’s finding that he never brought a formal motion to
dismiss the Wilson v. Selmer matter based on a lack of subject matter jurisdiction.
Specifically, in his reply brief, Selmer argues that he made a motion to dismiss through
attorney Neil Shapiro. Selmer contends that Shapiro was representing him at that time.
The document Selmer refers to is not a formal motion to dismiss, but rather a
“Memorandum in Opposition of Plaintiffs’ Motion to Appoint a Receiver.” In addition,
Shapiro is listed on the document as “Attorney for Defendants Jefferson, Quast, Mische,
Seifert, and Moore.” Shapiro, therefore, did not bring a formal motion to dismiss and
nothing in the document supports Selmer’s claim that Shapiro was making the motion on
Selmer’s behalf at the time the relevant memorandum was filed. Based on the record, we
conclude that the referee’s finding was not clearly erroneous.
Finally, Selmer contends that the referee erred in finding that he had asserted a
claim for money damages in his federal lawsuit. Selmer’s federal complaint, signed by
him, requested money damages, stating that “Plaintiffs pray for joint and several relief in
a sum in excess of five-hundred thousand dollars . . . .” The evidence supports the
referee’s finding that Selmer’s federal complaint sought monetary damages.
In summary, we conclude that the referee’s findings of fact are not clearly
erroneous.
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III.
We turn next to Selmer’s challenges to the referee’s conclusion that he violated
Minnesota Rules of Professional Conduct 1.1,3 3.1,4 3.4(c),5 3.4(d),6 and 8.4(d).7 Selmer
argues that he did not violate any of these rules of conduct, because he believed the
district court in the Wilson v. Selmer matter lacked subject matter jurisdiction and
therefore he had a good faith basis in law for his actions, including failing to obey court
orders.
Specifically, with regard to Rule 3.1, Selmer asserts that he had a basis in law and
fact for his assertion that the district court lacked subject matter jurisdiction. He further
argues that the referee “disregarded” the issue of whether the district court had subject
matter jurisdiction and therefore committed a “clear error of law.” The Director,
however, did not charge Selmer with misconduct on the basis of Selmer’s assertion that
the district court lacked jurisdiction. Instead, the Director charged, and the referee
3
Rule 1.1 requires that an attorney “provide competent representation.”
4
Rule 3.1 states that “[a] lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact for doing so that is not
frivolous.”
5
Rule 3.4(c) prohibits an attorney from “knowingly disobey[ing] an obligation
under the rules of a tribunal except for an open refusal based on an assertion that no valid
obligation exists.”
6
Rule 3.4(d) prohibits an attorney from failing “to make a reasonably diligent effort
to comply with a legally proper discovery request.”
7
Rule 8.4(d) provides that an attorney may not “engage in conduct that is
prejudicial to the administration of justice.”
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concluded, that Selmer’s conduct in bringing various other complaints and appeals was
frivolous. Selmer offers no basis in law to support filing a separate action in Hennepin
County, appealing matters not ripe for review, or filing his federal complaint. Our review
of the record therefore supports the referee’s conclusion.
Selmer next argues that because he believed the district court lacked subject matter
jurisdiction, and “consistently asserted” his belief, no valid obligation existed to obey
court orders or respond to discovery requests under Rules 3.4(c) and 3.4(d). He also
contends that because he believed no valid obligation existed, he did not violate Rule
8.4(d). We disagree. Selmer does not claim that the court of appeals or our court lacked
subject matter jurisdiction and offers no reason why he did not have an obligation to
correct appellate filing deficiencies. Similarly, he does not challenge the subject matter
jurisdiction of the Hennepin County District Court that ordered him to file an
informational statement in the Selmer v. Wilson matter. And regardless of the various
excuses offered by Selmer, ultimately, he failed to bring a formal motion to dismiss in
Ramsey County District Court based on a lack of jurisdiction. He also refused to appear
at the various discovery hearings to assert his claim that a valid obligation did not exist.
We therefore hold that the referee’s conclusion that Selmer violated Rules 3.4(c), 3.4(d),
and 8.4(d) was not clearly erroneous.
In summary, we hold that the referee’s findings and conclusions that Selmer
violated Minn. R. Prof. Conduct 1.1, 3.1, 3.4(c), 3.4(d), and 8.4(d) were not clearly
erroneous.
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IV.
The only remaining question is the appropriate discipline for Selmer’s misconduct.
The referee recommended that Selmer be indefinitely suspended from the practice of law
for a minimum of 12 months. Selmer did not address the recommended discipline in his
briefs. The Director asks us to adopt the referee’s recommendation.
The purpose of disciplinary sanctions “is not to punish the attorney, but rather to
protect the public, to protect the judicial system, and to deter future misconduct by the
disciplined attorney as well as by other attorneys.” In re Waite, 782 N.W.2d 820, 827
(Minn. 2010). We give “great weight” to the referee’s recommendation, but we
“maintain the ultimate responsibility for determining the appropriate sanction.” In re
Greenman, 860 N.W.2d 368, 376 (Minn. 2015) (citation omitted) (internal quotation
marks omitted). In imposing discipline, four factors guide our analysis: (1) the nature of
the misconduct, (2) the cumulative weight of the disciplinary violations, (3) the harm to
the public, and (4) the harm to the legal profession. In re Lundeen, 811 N.W.2d 602, 608
(Minn. 2012). We consider similar cases for guidance, but “[d]iscipline is imposed on a
case-by-case basis after consideration of both aggravating and mitigating circumstances.”
Id.We begin with the four factors. Selmer’s misconduct was serious. His dispute
with the SPUL spanned a significant number of court files at the state district, federal
district, and state appellate levels, all of which were dismissed based either on the
frivolity of Selmer’s arguments or because Selmer failed to comply with court rules. We
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have held that such an abuse of the litigation process constitutes “serious” misconduct.
See In re Murrin, 821 N.W.2d 195, 207 (Minn. 2012).
In considering the cumulative weight of the violations, we have stated that the
weight and severity of multiple rule violations over time “may compel severe discipline
even when a single act standing alone would not have warranted such discipline.” In re
Oberhauser, 679 N.W.2d 153, 160 (Minn. 2004). Selmer’s rule violations occurred in
multiple court cases from August 2011 through June 2013. Selmer’s misconduct was
therefore not a “single, isolated incident,” but included multiple instances of misconduct
over several years. See In re Fairbairn, 802 N.W.2d 734, 743 (Minn. 2011).
In addition, Selmer’s conduct harmed the public and the legal profession. Failure
to follow court rules undermines public confidence in the legal system and frivolous
claims are a waste of court resources. In re Ulanowski, 800 N.W.2d 785, 801 (Minn.
2011). By engaging in a pattern of frivolous litigation and violations of court rules and
orders, Selmer harmed the public and legal profession.
We next consider the existence of mitigating and aggravating factors. The referee
did not find any mitigating factors, and Selmer does not dispute that aspect of the
referee’s findings.
The referee found several aggravating factors, and Selmer does not specifically
challenge those findings. We have disciplined Selmer on four prior occasions. See In re
Lundeen, 811 N.W.2d at 609 (“A lawyer’s prior disciplinary history is an aggravating
factor.”). The discipline we imposed in 1995 and 1997 was for abusing the discovery
process and engaging in a pattern of harassing and frivolous litigation. Both proceedings
15
involved rule violations similar to those currently before us, which aggravates his
misconduct. See id. (“[W]e generally impose more severe sanctions when the current
misconduct is similar to the misconduct for which an attorney has already been
disciplined.”). And Selmer expresses no remorse and refuses to acknowledge any
wrongdoing. See In re Rebeau, 787 N.W.2d 168, 176 (Minn. 2010) (“The lack of
remorse also constitutes an aggravating circumstance.”).
Finally, we consider similar cases. Here, one of Selmer’s own previous discipline
cases is instructive. We previously suspended Selmer for 12 months after he engaged in
a pattern of harassing and frivolous litigation, including filing several frivolous claims
and knowingly offering false and misleading evidence in response to discovery requests.
In re Selmer, 568 N.W.2d 702, 704-05 (Minn. 1997). The pattern of frivolous claims,
which we held was an “abuse of the litigation process,” is similar to the pattern of
frivolous claims at issue here. See id. at 705. And the discipline we imposed in that case
is the same as the referee recommended here. See id.In conclusion, we agree with the referee’s determination that a 12-month
suspension is the appropriate discipline for Selmer.
Accordingly, we order that:
1. Respondent Scott Selmer is suspended from the practice of law, effective
14 days from the date of the filing of this opinion, with no right to petition for
reinstatement for 12 months from the effective date of the suspension.
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2. Respondent shall pay $900 in costs pursuant to Rule 24, Minnesota Rules
on Lawyers Professional Responsibility (“RLPR”), and shall comply with Rule 26, RLPR
(requiring notice of suspension to clients, opposing counsel, and tribunals).
3. Prior to petitioning for reinstatement, respondent shall make a good faith
effort to satisfy the outstanding $11,312 in court-ordered sanctions and costs in the
Selmer v. Wilson and Wilson v. Selmer matters. Respondent shall provide the Director
with a payment plan for satisfying the judgments against him.
4. Respondent may petition for reinstatement pursuant to Rule 18(a)-(d),
RLPR. Reinstatement is conditioned on successful completion of the professional
responsibility portion of the state bar examination and satisfaction of continuing legal
education requirements pursuant to Rule 18(e), RLPR.
PAGE, J., took no part in the consideration or decision of this case.
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