In the Matter of the Teaching License of Scott Selmer

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1362

In the Matter of the Teaching License of Scott Selmer

Filed July 31, 2017
Affirmed
Halbrooks, Judge

Minnesota Board of Teaching
OAH No. 80-1302-33017

Scott Selmer, Minneapolis, Minnesota (pro se relator)

Lori Swanson, Attorney General, Nathan J. Hartshorn, Assistant Attorney General,
St. Paul, Minnesota (for respondent Minnesota Board of Teaching)

Considered and decided by Halbrooks, Presiding Judge; Ross, Judge; and Randall,
Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Relator challenges an order dismissing his administrative appeal as moot, arguing
that the Minnesota Board of Teaching did not give him a fair opportunity to be heard before
concluding that it had the authority to revoke his teaching license. We affirm.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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FACTS
Relator Scott Selmer applied for a short-call substitute-teaching license in 2014. On
his license application, he disclosed a pending disciplinary case before the Minnesota
Supreme Court regarding his attorney license . In May 2014, the board issued Selmer an
interim short-call substitute-teaching license and directed him to advise it of the supreme
court’s decision.
In July 2015, the supreme court suspended Selmer from the practice of law, with no
right to petition for reinstatement for 12 months because he “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.” In re Disciplinary Action
against Selmer, 866 N.W.2d 893, 894, 901 (Minn. 2015); see also In re Disciplinary Action
against Selmer, 749 N.W.2d 30, 33 (Minn. 2008); In re Disciplinary Action against Selmer,
568 N.W.2d 702, 704 -05 (Minn. 1997); In re Disciplinary Action against Selmer , 529
N.W.2d 684, 685 (Minn. 1995). Selmer did not advise the board of the supreme court’s
decision.
On September 24, 2015, the board’s disciplinary committee notified Selmer by letter
that it planned to recommend revocation of his teaching license on the grounds of immoral
character or conduct. See Minn. Stat. § 122A.20, subd. 1(a)(1) (2016). Selmer demanded
a contested hearing in response to the letter.
In November 2015, the board commenced a license disciplinary action in the Office
of Administrative Hearings and served Selmer with a notice and order for a prehearing
conference scheduled on January 19, 2016. An administrative law judge (ALJ) conducted

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the prehearing conference as scheduled, but Selmer failed to appear. He did not request a
continuance or communicate with the ALJ prior to the prehearing conference. The ALJ
denied the board’s motion for default due to Selmer’s failure to appear, scheduled a second
prehearing conference, and directed the board to re -serve Selmer with a notice and order
for the second prehearing conference.
On January 20, 2016, the board served Selmer with a second notice and order for
another prehearing conference scheduled on February 16, 2016. Selmer again failed to
appear or communicate with the ALJ prior to the second prehearing conference , and the
ALJ determined that Selmer was in default. The ALJ presumed that the allegations in the
board’s notice were true and recommended that it take disciplinary action against Selmer.
The board took the ALJ’s recommendation under advisement and scheduled
consideration of the matter for April 8, 2016. Through his counsel, Selmer requested that
the board postpone consideration until at least June 15, 2016. The board granted his request
and rescheduled consideration of the matter for July 15, 2016, its first regular meeting after
June 15, 2016.
On June 30, 2016, Selmer’s short-call substitute-teaching license expired by its own
terms. The board dismissed the matter as moot at its meeting on July 15, 2016. It also
determined that it had the authority to revoke Selmer’s license based on immoral character
or conduct, pursuant to Minn. Stat. § 122A.20, subd. 1(a)(1), if his license had not expired
by its own terms. The board concluded, “As a matter of law, at the time the Report was
issued, [Selmer]’s conduct referenced in the findings of fact demonstrated immoral

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character and constituted immoral conduct su fficient to revoke his license . . . .” This
appeal follows.
D E C I S I O N
In a judicial review of an agency decision, this court
may affirm the decision of the agency or remand the case for
further proceedings; or it may reverse or modify the decision if
the substantial rights of the petitioners may have been
prejudiced because the administrative finding, inferences,
conclusion, or decisions are . . . affected by other error of law.

Minn. Stat. § 14.69 (2016); see Falgren v. State, Bd. of Teaching , 545 N.W.2d 901, 904 -
05 (Minn. 1996). As a threshold matter, the board contends that Selmer’s disciplinary case
became moot when his license expired. Because we have concluded that the board’s
findings and conclusion result in collateral consequences, Selmer’s appeal is not moot. See
In re McCaskill, 603 N.W.2d 326, 327 (Minn. 1999). We, therefore, reach the merits of
this appeal.
Selmer argues that the board’s revocation of his teaching license would not have
been proper because he was never afforded a full and fair opportunity to contest its
allegations. We disagree.
“Procedural due process imposes constraints on governmental decisions which
deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of t he Due
Process Clause of the Fifth or Fourteenth Amendment.” Falgren, 545 N.W.2d at 908
(quotation omitted). “Sufficient due process generally requires reasonable notice and a
hearing.” CUP Foods, Inc. v. City of Minneapolis , 633 N.W.2d 557, 563 (Minn. App.
2001), review denied (Minn. Nov. 13, 2001).

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A person has a property interest in his or her short-call substitute-teaching license.
See Falgren, 545 N.W.2d at 908 (stating that the board conceded that teaching licenses are
property interests); see also CUP Foods, 633 N.W.2d at 562-63 (stating that a person “has
a property interest in his business licenses”); Humenansky v. Minn. Bd. of Med. Exam’r s,
525 N.W.2d 559, 566 (Minn. App. 1994) (“[A] license to practice medicine is a property
right deserving constitutional protection . . . .”), review denied (Minn. Feb. 14, 1995).
Because Selmer had a property interest in his teaching license while it was effective, we
must determine whether he had reasonable notice and an opportunity to be heard prior to
the board’s decision to revoke his teaching license.
Selmer argues that the ALJ should have waited until he returned to Minnesota to
proceed with the contested hearing. The ALJ found Selmer to be in default because he
failed to appear at two prehearing conferences.
“A default occurs when a party fails to appear without the prior consent of the judge
at a prehearing conference . . . .” Minn. R. 1400.6000 (2015). An agency or judge “may
dispose of a contested case adverse to a party which defaults. Upon default, the allegations
of or the issues set out in the notice of and order for hearing or other pleading may be taken
as true or deemed proved without further evidence.” Id.
The record demonstrates that Selmer had an opportunity to contest revocation of his
teaching license. The board twice served Selmer with a notice and order for a hearing and
prehearing conference before an ALJ. He failed to appear or communicate with the ALJ
on both occasions. Consequently, the ALJ found Selmer to be in default.

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Selmer argues that the ALJ erred because he timely requested a hearing continuance
in writing. He directs us to his letter, requesting the board to schedule a contested hearing
when he was returning to Minnesota at the end of August 2016.
Requests for a continuance of a hearing shall be granted upon
a showing of good cause. Unless time does not permit, a
request for continuance of the hearing shall be made in writing
to the judge and shall be served upon all parties of record and
the agency if it is not a party. In determining whether good
cause exists, due regard shall be given to the ability of the party
requesting a continuance to effectively proceed without a
continuance. A request for a continuance filed within five
business days of the hearing shal l be denied unless the reason
for the request could not have been earlier ascertained.

Minn. R. 1400.7500 (2015). Because his letter was addressed to the board and not the ALJ,
we conclude that Selmer failed to request a continuance.
Even if Selmer had properly requested a continuance, the ALJ never granted the
request or concluded that he made a showing of good cause. Good cause includes:
death or incapacitating illness of a party, representative, or
attorney of a party; a court order requiring a continuance; lack
of proper notice of the hearing; a substitution of the
representative or attorney of a party if the substitution is shown
to be required; a change in the parties or pleadings requiring
postponement; and agreement for a conti nuance by all parties
provided that it is shown that more time is clearly necessary to
complete authorized discovery or other mandatory preparation
for the case and the parties and the judge have agreed to a new
hearing date, or, the parties are engaged in serious settlement
negotiations or have agreed to a settlement of the case which
has been or will likely be approved by the final decision maker.

Id. Selmer maintains that his attendance in a graduate program in New York constituted
good cause to continue a contested hearing. We disagree.

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“Parties may be represented by an attorney throughout the proceedings in a
contested case, by themselves, or by a person of their choice if not otherwise prohibited as
the unauthorized practice of law.” Minn. R. 1400 .5800 (2015). And a “prehearing
conference may be held by telephone.” Minn. R. 1400.6500, subp. 2 (2015). Selmer’s
participation in graduate school is not good cause for his failure to appear because he could
have found someone else to represent him or participated in the preconference by phone .
We conclude that the ALJ did not err in concluding that Selmer was in default.
Lastly, Selmer argues that the doctrines of collateral estoppel and res judicata should
not apply here. Because neither collateral estoppel nor res judicata was an issue before the
board or the ALJ, we decline to address these issues on appeal. See In re A.D., 883 N.W.2d
251, 261 (Minn. 2016) (“Generally, we will not consider an issue not addressed below.”);
accord Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). And f or the first time i n his
reply brief, Selmer argues that the ALJ abused its discretion by failing to explicitly rule on
his credibility and that we should relieve him from the ALJ’s default ruling for mistake,
inadvertence, and excusable neglect. Because we do not “address issues raised for the first
time on appeal, particularly when the issue is raised in a reply brief,” we decline to address
these issues. Emerson v. Sch. Bd. of Indep. Sch. Dist. 199 , 809 N.W.2d 679, 687 (Minn.
2012).
In summation, we conclude that Selmer had a full and fair opportunity to contest the
revocation of his teaching license. B ecause he failed to request a continuance and failed
to appear at two prehearing conferences, the ALJ did not err in concluding that he was in
default. Thus, the board did not err in adopting the ALJ’s findings. And based on the

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ALJ’s findings, the board had an adequate basis to revoke Selmer’s short -call substitute-
teaching license for immoral character or immoral conduct. See Minn. Stat. § 122A.20,
subd. 1(a)(1).
Affirmed.