2016 WI 71
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP2303-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Scott E. Selmer, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Scott E. Selmer,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST SELMER
OPINION FILED: July 15, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2016 WI 71
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP2303-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Scott E. Selmer, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
JUL 15, 2016
v.
Diane M. Fremgen
Clerk of Supreme Court
Scott E. Selmer,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. This is a reciprocal discipline matter.
On November 13, 2015, the Office of Lawyer Regulation (OLR)
filed a complaint and motion pursuant to Supreme Court Rule
(SCR) 22.22,1 requesting this court suspend Attorney Scott E.
1
SCR 22.22 (Reciprocal discipline) provides:
(1) An attorney on whom public discipline for
misconduct or a license suspension for medical
(continued)
No. 2015AP2303-D
incapacity has been imposed by another jurisdiction
shall promptly notify the director of the matter.
Failure to furnish the notice within 20 days of the
effective date of the order or judgment of the other
jurisdiction constitutes misconduct.
(2) Upon the receipt of a certified copy of a
judgment or order of another jurisdiction imposing
discipline for misconduct or a license suspension for
medical incapacity of an attorney admitted to the
practice of law or engaged in the practice of law in
this state, the director may file a complaint in the
supreme court containing all of the following:
(a) A certified copy of the judgment or order
from the other jurisdiction.
(b) A motion requesting an order directing the
attorney to inform the supreme court in writing within
20 days of any claim of the attorney predicated on the
grounds set forth in sub.(3) that the imposition of
the identical discipline or license suspension by the
supreme court would be unwarranted and the factual
basis for the claim.
(3) The supreme court shall impose the identical
discipline or license suspension unless one or more of
the following is present:
(a) The procedure in the other jurisdiction was
so lacking in notice or opportunity to be heard as to
constitute a deprivation of due process.
(b) There was such an infirmity of proof
establishing the misconduct or medical incapacity that
the supreme court could not accept as final the
conclusion in respect to the misconduct or medical
incapacity,
(c) The misconduct justifies substantially
different discipline in this state.
(4) Except as provided in sub.(3), a final
adjudication in another jurisdiction that an attorney
has engaged in misconduct or has a medical incapacity
(continued)
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No. 2015AP2303-D
Selmer’s license to practice law in Wisconsin for a period of 12
months, as reciprocal discipline identical to that imposed by
the Minnesota Supreme Court. Upon our review, we agree that it
is appropriate to impose the same 12-month suspension imposed by
the Minnesota Supreme Court, as well as the costs of this
proceeding, and we reject Attorney Selmer’s arguments to the
contrary.
¶2 Attorney Selmer was admitted to practice law in
Wisconsin in 1978. Attorney Selmer's Wisconsin law license is
currently suspended for failure to comply with CLE reporting
requirements, for failure to pay annual bar dues, and for
failure to provide a required trust account certification.
shall be conclusive evidence of the attorney's
misconduct or medical incapacity for purposes of a
proceeding under this rule.
(5) The supreme court may refer a complaint filed
under sub. (2) to a referee for a hearing and a report
and recommendation pursuant to SCR 22.16. At the
hearing, the burden is on the party seeking the
imposition of discipline or license suspension
different from that imposed in the other jurisdiction
to demonstrate that the imposition of identical
discipline or license suspension by the supreme court
is unwarranted.
(6) If the discipline or license suspension
imposed in the other jurisdiction has been stayed, any
reciprocal discipline or license suspension imposed by
the supreme court shall be held in abeyance until the
stay expires.
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No. 2015AP2303-D
Attorney Selmer was admitted to practice law in Minnesota in
1984. He presently resides in New York.
¶3 The following facts are taken from the OLR's complaint
relating to the Minnesota disciplinary proceedings and the
documents attached to that complaint. Attorney Selmer's
professional disciplinary history in Wisconsin consists of:
• A 1990 private reprimand for practicing law when his
license was suspended for failure to meet CLE
requirements, by filing documents with the Pierce
County Circuit Court and Wisconsin Court of Appeals.
Private Reprimand 1990-23.
• A 1995 public reprimand for failure to promptly
provide his client in a personal injury matter a full
accounting of funds he received on her behalf,
charging and suing that client to collect an
unreasonable fee, abusing the discovery process in
that action, and failing to maintain proper trust
account books and records, falsely certifying that he
had done so and commingling personal and client funds
in his trust account. Disciplinary Proceedings Against
Selmer, 195 Wis. 2d 687, 538 N.W.2d 252 (1995).
• A 1999 one-year suspension for engaging in a pattern
of frivolous and harassing conduct by filing
counterclaims alleging racial discrimination in
actions brought against him by his creditors and by
filing claims in state and federal courts alleging
racial discrimination, knowingly offering false and
misleading evidence in response to discovery requests,
failing to supplement incomplete and misleading
responses to discovery requests, failing to comply or
make reasonably diligent efforts to comply with
legally proper discovery requests, making false
statements of fact in attempts to advance his own
interests, and engaging in dishonest conduct in those
actions. Disciplinary Proceedings Against Selmer, 227
Wis. 2d 85, 595 N.W.2d 373 (1999).
• A 2009 public reprimand for failure to comply with
the terms of probation, failure to file timely
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No. 2015AP2303-D
individual income tax returns, and a fifth-degree
assault conviction. Disciplinary Proceedings Against
Selmer, 2009 WI 15, 315 Wis. 2d 650, 761 N.W. 2d 6.
¶4 In the Minnesota proceeding giving rise to this
reciprocal discipline case, the Minnesota Supreme Court noted
that Attorney Selmer had been disciplined in Minnesota on four
prior occasions. In 1995 Attorney Selmer was publically
reprimanded and placed on probation for several violations,
including abusing the discovery process. In re Selmer, 529
N.W.2d 684, 685 (Minn. 1995). In 1995, the Minnesota Supreme
Court affirmed an admonition issued to Attorney Selmer for
improperly charging a client. In 1997, the Minnesota Supreme
Court suspended Attorney Selmer for 12 months 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). In 2008, the Minnesota Supreme Court
publicly reprimanded Attorney 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).
¶5 On July 15, 2015, effective July 29, 2015, the
Minnesota Supreme Court indefinitely suspended Attorney Selmer's
Minnesota law license, with no right to petition for
reinstatement for a minimum of 12 months. The Minnesota Supreme
Court found that Attorney Selmer violated Minnesota Rules of
Professional Conduct sections 1.1, 3.1, 3.4(c), 3.4(d), and
8.4(d) through a pattern of frivolous and harassing litigation,
a failure to obey court orders, and a failure to comply with
legally proper discovery requests. The Minnesota court found
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No. 2015AP2303-D
that Attorney Selmer filed ten separate lawsuits in two
different counties, the court of appeals, and a Minnesota
federal district court, and then repeatedly failed to obey court
orders, appear for hearings, or otherwise respond to pleadings
and discovery requests. All ten lawsuits were dismissed based
either on the frivolity of Attorney Selmer's arguments or
because he failed to comply with court rules. The court noted
that two of Attorney Selmer's four prior Minnesota disciplinary
proceedings were for similar conduct, engaging in a pattern of
harassing and frivolous litigation.
¶6 In its complaint, the OLR alleged that Attorney Selmer
is subject to reciprocal discipline and that, by failing to
notify OLR of his suspension in Minnesota for professional
misconduct within 20 days of the effective date of its
imposition, Selmer violated SCR 22.22(1).
¶7 The OLR asked this court to issue an order, pursuant
to SCR 22.22(2)(b), directing Attorney Selmer to inform the
court in writing of any claim by him, predicated upon the
grounds set forth in SCR 22.22(3), that the imposition of
discipline reciprocal to that imposed in Minnesota would be
unwarranted, and of the factual basis for any such claim. Delay
ensued because of difficulty completing proof of service. This
court issued the requested order on February 9, 2016.
¶8 On March 1, 2016, Attorney Selmer responded to this
court’s order. He filed an answer to the order to show cause,
an answer to the complaint, and a motion to dismiss or for an
extension of time.
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No. 2015AP2303-D
¶9 Attorney Selmer’s cursory answer merely denies "each
and every material allegation of the complaint" and seeks
dismissal of the complaint.
¶10 Attorney Selmer contends the "Minnesota court that
held him in violation of the Minnesota Rules of Professional
Responsibility were specious due to the fact that the original
trial court of Minnesota lacked subject matter jurisdiction in
the original action which culminated in respondent's
suspension." He asks this court to dismiss the order to show
cause, enter judgment in his favor, and, in the alternative, he
seeks a trial on the merits.
¶11 On March 16, 2016, the court ordered the OLR to
respond to Attorney Selmer’s filings. OLR did so, maintaining
that imposition of reciprocal discipline is appropriate based on
the record presented to this court. We agree.
¶12 We decline the OLR’s invitation to strike Attorney
Selmer's cursory answer, but agree that it is wholly
insufficient to warrant dismissal of the OLR complaint.
¶13 Next we consider Attorney Selmer’s challenge to the
order to show cause. Attached to the OLR disciplinary complaint
are a number of documents from the Minnesota disciplinary
proceeding including the 18-page petition for disciplinary
action filed in December 2013, an affidavit of service, the
referee’s detailed and thoughtful 26-page findings of fact,
conclusions of law and recommendation for discipline, and the
17-page per curiam decision rendered by the Minnesota Supreme
Court on July 15, 2015.
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No. 2015AP2303-D
¶14 SCR 22.22(4) provides: "Except as provided in sub.
(3), a final adjudication in another jurisdiction that an
attorney has engaged in misconduct or has a medical incapacity
shall be conclusive evidence of the attorney's misconduct or
medical incapacity for purposes of a proceeding under this
rule."
¶15 A copy of the Minnesota Supreme Court’s final
adjudication of Attorney Selmer's misconduct accompanies the OLR
complaint and is conclusive evidence of Attorney's Selmer’s
misconduct for purposes of this proceeding.
¶16 SCR 22.22(3) provides that this court shall impose the
identical discipline or license suspension unless one or more of
the following is present:
(a) The procedure in the other jurisdiction was
so lacking in notice or opportunity to be heard as to
constitute a deprivation of due process.
(b) There was such an infirmity of proof
establishing the misconduct or medical incapacity that
the supreme court could not accept as final the
conclusion in respect to the misconduct or medical
incapacity.
(c) The misconduct justifies substantially
different discipline in this state.
Attorney Selmer claims that the Minnesota trial court lacked
subject matter jurisdiction in the underlying action giving rise
to his suspension, and as a basis for his motion to dismiss this
action, relies upon all the files and records he filed in
defense of the misconduct charges brought by the Minnesota
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No. 2015AP2303-D
Office of Lawyers Professional Responsibility. Neither claim
falls within the purview of SCR 22.22(a) through (c).
¶17 SCR 22.22(3)(a) ensures that a disciplinary respondent
is afforded "notice and opportunity to be heard." The record
before this court demonstrates that Attorney Selmer was
personally served with the Minnesota disciplinary complaint and
that a full, two-day evidentiary hearing on the merits was
conducted. Attorney Selmer participated in that hearing.
Attorney Selmer has failed to demonstrate a lack of due process
as to notice or opportunity to be heard in the Minnesota
proceeding.
¶18 SCR 22.22(3)(b) provides that this court shall impose
the identical discipline or license suspension unless there "was
such an infirmity of proof establishing the misconduct or
medical incapacity that the supreme court could not accept as
final the conclusion in respect to the misconduct or medical
incapacity." Attorney Selmer fails to satisfy this criterion as
well. Again, the Minnesota court conducted a full hearing on
the merits. The referee's findings of fact, conclusions of law,
and the certified copy of the Minnesota Supreme Court's opinion
issued July 15, 2015 reflect the extensive procedural and
substantive history of the Minnesota disciplinary process.
¶19 SCR 22.22(3)(c) pertains if the misconduct justifies
substantially different discipline in this state. The sanction
imposed for Attorney Selmer’s misconduct in Minnesota is not
substantially different from the typical sanction for comparable
misconduct in Wisconsin. As the Minnesota Supreme Court noted,
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No. 2015AP2303-D
Attorney Selmer’s misconduct was serious, and 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 Attorney Selmer’s
arguments or because Attorney Selmer failed to comply with court
rules.
¶20 Attorney Selmer has wholly failed to provide any claim
predicated upon the grounds set forth in SCR 22.22(3) indicating
that imposition of the identical discipline or license
suspension by this court would be unwarranted.
¶21 Finally, notwithstanding Attorney Selmer’s unsupported
and conclusory denials, the record supports the OLR’s assertion
that Attorney Selmer failed to timely notify OLR of his
suspension in Minnesota, which constitutes misconduct pursuant
to SCR 22.22(1).
¶22 Accordingly, we deny Attorney Selmer’s Motion to
Dismiss or [for] Extension of Time and his request for a trial.
We grant the OLR’s request and suspend Attorney Scott E.
Selmer's license to practice law in Wisconsin for 12 months as
discipline reciprocal to that imposed upon him in Minnesota.
¶23 Attorney Selmer shall pay the full costs of this
proceeding which total $842.50 as of May 19, 2016. He has
identified no factors that would justify a reduction in costs.
See SCR 22.24(1m).
¶24 IT IS ORDERED that the license of Scott E. Selmer to
practice law in Wisconsin is suspended for a period of 12
months, effective the date of this order.
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No. 2015AP2303-D
¶25 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Scott E. Selmer shall pay to the Office of Lawyer
Regulation the costs of this proceeding which total $842.50 as
of May 19, 2016.
¶26 IT IS FURTHER ORDERED that the administrative
suspension of Scott E. Selmer's license to practice law in
Wisconsin, due to his failure to pay mandatory bar dues and
failure to comply with continuing legal education requirements,
and failure to complete trust account certification, will remain
in effect until each reason for the administrative suspension
has been rectified, pursuant to SCR 22.28(1).
¶27 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Scott E. Selmer shall comply with the
provisions of SCR 22.26 concerning the duties of a person whose
license to practice law in Wisconsin has been suspended.
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No. 2015AP2303-D
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