Local Boy Makes Good
Stephen Postema weighs his next move.
by James Leonard
Of the ten years Stephen Postema's been Ann Arbor's city attorney, the past one's been his best yet for big wins in court.
The blond-going-gray lawyer hasn't lost a lawsuit since he got the job. But he's won more and bigger cases in the past year than ever before. Postema, who'd shuttered the Dream Nite Club in 2011 after a shooting plus multiple fights and assaults, beat back the owners' lawsuits alleging civil rights and procedural violations. He also smacked down a $30 million suit by the would-be developers of the old Y lot, who claimed city council's decision not to proceed with their project was due to bias against the handicapped. And those are only two of the cases the city's won in the last year--with dozens more over the past decade.
With a record like that, even John Hieftje--typically sparing in his praise for city staffers--has only good things to say about Postema: "Stephen's a guy with a lot of integrity, and he's never lost a case," says the mayor. "What more do you want from an attorney?"
"Stephen has high legal ethics," agrees city administrator Steve Powers. "He and the attorneys in his department are very, very clear in their role and have been very, very clear in their advice to council--and in their understanding that their role ends when they make their legal recommendation."
"He's one of the outstanding city attorneys in the state," says Bill Mathewson, the Michigan Municipal League's general council. "He was chosen by his peers to be president of the statewide Michigan Association of Municipal Attorneys. It's really quite an honor."
Not everybody agrees with the advice the city attorney gives council, and his conservative position on medical marijuana once prompted one of the herb's advocates to threaten to burn him in effigy. But most of the city attorney's opponents respect him, and some even like him. "I don't agree with him about practically anything, but I like him as a person," says
Dennis Hayes, a local attorney and marijuana advocate who's tangled with Postema. "He's been very reasonable and fair in large part."
Even councilmembers who have issues with Postema admit he has his good points. "He is competent and does a really good job of defending the city in court," allows Sabra Briere. "A lot of people think he's really excellent at his job."
One person who doesn't is Dave Askins, the editor of the Ann Arbor Chronicle. Askins writes in an email that if he were in a position to do so, "I'd be inclined to thank Postema for his work and wish him well as he pursues endeavors other than public service for which he might be better suited."
Years ago, Postema suggested to Observer profiles editor Eve Silberman that the magazine write an article about him. The angle, he said, would be "local boy makes good."
He hasn't lived in Ann Arbor his entire life, but he's come close. "I was born in Grand Rapids in 1959 but immediately left with my family for Amsterdam," Postema explains. "My father was on a Fulbright scholarship, and the family came to Ann Arbor in 1963."
A Dutch Reformed minister originally from the south side of Chicago, Don Postema studied theology in Amsterdam before becoming pastor of the Campus Chapel on Washtenaw, a post he held for more than thirty years. He and his wife, Elaine, bought their home on the southwest side when the neighborhood was new and Scio Church and Maple were dirt roads.
"That neighborhood was very modest then," Postema remembers, "much more modest than now. And it was filled with children. I have two sisters and an older brother, and most families had four or five kids. That's what Ann Arbor was like back then. And kids were allowed to roam free. This city attorney roamed free. We went everywhere on our bikes. You were let loose in the morning and expected to come home at some point for meals."
Postema grew into an outstanding scholar and star athlete, and he readily acknowledges his parents' influence. "My father was very active in the community, and we discussed all the big issues of the day at the dinner table: the Vietnam war, civil rights, justice, peace.
"My mother was a homemaker and a substitute teacher at High Point," Postema continues, his voice thickening with emotion. "I never knew who might be in the house when I got home from school. We might have a single mom without the skills to function, and my mom would be teaching her how to cook or how to shop or how to take care of her child. She's a very compassionate person who made changes one person at a time. And she didn't talk at all about what she did. We were raised not to talk about ourselves."
After Pioneer, Postema left town for Harvard and then the University of Wisconsin law school, but says, "I always knew I'd come back." He and his wife, Christina, a librarian who works for the Ann Arbor Public Schools, settled near Eberwhite school; they have four children, the youngest of whom is still at home.
Postema was a partner at the Bodman law firm when a neighborhood problem drew him into city government. He "contacted me about a sewer overflow issue," recalls Chris Easthope, who at the time represented the Fifth Ward on city council and is now a Fifteenth District Court judge. "I knew he had a reputation as competent and levelheaded, and I was very impressed with the way he handled the issue and himself. At the same time, the city's legal department was going through a lot of turmoil. It was a rudderless ship, and we needed to bring somebody else in.
"Stephen and I lived in the same neighborhood, and I told him he should apply," Easthope continues. "It was a wide-open hiring process, and he had to convince the whole committee he was the best candidate for the job. It was a national search, and a lot of people applied, but Stephen was the only local finalist. It helped because we knew of his reputation [at Bodman] firsthand as a good attorney and good manager."
Easthope says no more about the legal department's turmoil, but John Hieftje does, albeit indirectly. "Abby Elias [Postema's predecessor] is a very, very good attorney, but Stephen is much better at running a law office." Elias remains in the department as chief assistant attorney.
Postema's first brief was to reorganize his staff. "I looked at the function of the city attorney's office and at the changes [then-manager] Roger Fraser made in city government. Roger wanted to make the structure more manageable, so he set up five service-area administrators. I tried to mirror that by assigning an attorney to each of the five areas and having them treat those areas as their client. And I take care of my client, the city council."
Postema says this keeps him and his attorneys quite busy. "At any given time, we have a thousand open matters we're handling. And that number doesn't include the twenty-five hundred [senior assistant attorney] Bob West is handling at district court."
No one disputes the department's winning record in court under Postema.
Last year's highest-profile case was VR Entertainment aka the Dream Nite Club versus the city. "I was pushing to do something," recalls Hieftje. "There was a period there where 20 percent of our assaults were coming from that one location [on Fourth Avenue], and the severity kept going up. It took real persistence on Stephen's part to get it done."
"When I came on board that was one area I wanted to make sure we spent time on," Postema says. "Council has been very concerned about public nuisances, and they have been willing to approach the problem through legal means if other means of persuasion don't work."
Other nuisances taken on by the attorney's office included a drug house on Packard, the derelict Michigan Inn on Jackson, and the Fifth Quarter nightclub on Fifth Avenue. This was new legal ground, and it took coordination with the police and the cooperation of the courts and landlords to make it work. Most fought back, the drug house by recruiting new dealers and the others by hiring more lawyers, and all of them lost.
At $30 million, last year's highest-stakes case was HDC v. Ann Arbor. "That was about the old Y site," Postema says. HDC was a company that "had a contract to develop the site and didn't meet its terms. This was already a second chance for them, and council decided not to renew their contract. [HDC] claimed bias against handicapped people as the reason. I went down myself to the Sixth Circuit Court of Appeals in Cincinnati to argue the case because it's important to uphold fully the integrity of the council process--and because of the stakes."
City council was happy with the verdicts. What HDC and the Dream Nite Club think is unknowable, since the owners have disappeared and their lawyers won't talk.
Dave Askins, however, is more than willing to talk about Postema, and his biggest beef is his advice to council on closed-session meetings based on attorney-client privilege. The Chronicle sued the city in 2010 over what it called a violation of the Open Meetings Act. They lost the case in 2011, appealed, and lost the appeal in 2012.
Though he lost the legal battle, Askins believes he won the procedural war. "Attorney-client-privilege based closed sessions continued to be rare events through the present," he writes in an email. "At the one-year mark [in late September 2011] there was one. And since that time there's been two possibly three."
Councilmember Sabra Briere concurs that council and the city attorney have "totally changed" their approach to closed sessions. "They used to be held at least once a meeting, but since the lawsuit, they hardly happen."
Postema, though, says the lawsuit made no difference. "I am not aware of any changes since the 'issues' were raised by the attorney for the Ann Arbor Chronicle in mid-August, 2010," he emails. By his count, council used attorney-client privilege to justify ten closed sessions in the year before he heard from the Chronicle's attorney in mid-August, 2010, and three in the year after.
Postema's "after" tally is higher than Askins' because he started his count earlier--and there were two closed sessions in September. While going from ten to three still might look like a big change, Postema emails, "it was "completely and 100% based on the matters being dealt with by the Council in FY 2010, most significant pieces of large litigation that required closed session and also had written attorney client communication. In FY 2012 the City also had large pieces of litigation, but there was no need for closed session because of the type of litigation."
The mayor agrees. "I don't believe there has been a change in approach to closed sessions," writes Hieftje in an email. "If you go back a few years you see big and small lawsuits, several labor negotiations, plus Greenbelt purchases and other important issues for which we get written legal advice.
"Now the lawsuits are over, all the labor contracts are signed, and we don't have the same legal issues."
Sabra Briere also disagrees with Postema on one of the thorniest legal problems that city council has faced lately: what to do about medical marijuana dispensaries. After the state's voters approved the Medical Marijuana Act in 2008, local entrepreneurs quickly opened twenty businesses where the drug is bought and sold.
In 2010, council asked Postema to draft a measure regulating the dispensaries. Since the law made no provision for sales or purchase, Postema responded with a draft that would have them shut down as public nuisances. Council rejected that approach, instead imposing a moratorium on new openings but grandfathering in existing businesses.
Briere played a key role in drafting the law that eventually passed. "Asking a city attorney to change the way they look at the issue requires a real ability to screw their head on in a different direction," she says, "and I wouldn't say that everybody was there yet."
Apparently, Postema's head has since changed directions. Though he maintains that "the city can't have its own medical marijuana law separate from the state," he says the city could advocate changing state law--and that's what he'll be doing in Lansing this spring. "There's an effort to amend the law to allow for a local option" on permitting or banning dispensaries, he says, "and I'll be speaking at the state legislature specifically on that issue."
Writes Briere, "He heard clearly from the folks who were on Council in the summer of 2011 that they wanted to provide controls but not barriers to medical marijuana."
"If my clients want that and there are legitimate problems with the law, then we're going to the state legislature to get the law changed," Postema agrees. "Changing the law would be a real game changer--which is not to comment on whether it's a good or a bad thing."
"My jaw dropped when I heard him say I'll help you guys get through at the state level," says Chuck Ream, the longtime medical marijuana advocate who once threatened to burn Postema in effigy and is currently president of Arborside Compassion, one of two local dispensaries raided by the Livingston and Washtenaw County Narcotics Enforcement Team last year. "That's impressive and shows good faith. I'm proud of him for that."
It seems unlikely that the state's conservative Republican legislature will approve a local option. But win or lose, advocating for it should help Postema at home.
"Though the city attorney is not an elected office, Steve is a political animal," says Hayes, a longtime pot champion. "And politically, doing this makes his situation a lot easier."
Postema says he wouldn't call himself a political animal. But he has many hundreds of friends and acquaintances dating back to his childhood, and he continues to expand his network. At the polls on election days, Postema's appearances are as much about pressing the flesh as they are about checking the lines.
And he's political enough to admit he's thinking of running for Don Shelton's seat on the Twenty-Second District Court when Shelton reaches the mandatory retirement age of seventy in 2014.
"I serve at the will and the pleasure of council," says Postema, "and I told them I was committed at least through 2014, and then I would evaluate my position."
At fifty-three, Postema is clearly looking for a new challenge. He'd find it in his likely opponent. Jim Fink lost to Carol Kuhnke in November in the race for another Twenty-Second Court seat, but his numerous supporters and proven ability to raise cash--more than $100,000 in all for the primary and the general election--will make him a formidable candidate if he chooses to run again.
But Postema will be, too. The same qualities that have made him a success as city attorney will fuel his campaign for judge: he's very competitive and very, very determined to win.
The following Calls & letters items appeared in the February 2013 Ann Arbor Observer:
Credit where it's due
To the Observer:
Regarding Jim Leonard's article ["Local Boy Makes Good," January], I want to give credit where it is due:
First, the City Attorney's Office depends on teamwork, particularly in litigation. Even those cases that I took the lead on required a tremendous amount of effort by others. For example, the Dream Nightclub cases involved [assistant attorneys] Kristen Larcom, Robert West, and Mary Fales. In addition, Chris Frost provided excellent legal research and writing.
Second, while I review all litigation, many attorneys took the lead on important cases. Abby Elias and Bob West both won cases involving governmental immunity. Nancy Niemela did the important work on a winning whistleblower case. Kristen Larcom won several Michigan Tax Tribunal cases. Again, it is this teamwork and these results that I am most proud of-your article could have been titled, "Local boy leads good team effort."
Third, much of the work of the City Attorney's Office is not litigation. The article correctly noted that the city attorneys each have service areas that they take care of, and this takes a great deal of time. It is this pro-active work that actually prevents a great deal of litigation and helps the service areas as needed.
Fourth, while the office has had a very good success rate in court, I believe that the mayor is referring to the fact that we have avoided adverse jury verdicts and other costly judgments.
Fifth, as a minor factual correction, the Chronicle lawsuit was not appealed. It was dismissed by the Circuit Court.
Sixth, there has been no change of direction by me concerning the Michigan Medical Marijuana Act. The city's position has always been that it will allow dispensaries to the extent allowed by state law. Because questions have arisen whether dispensaries are allowed under state law, there have always been two ways to address this: 1) looking to the courts for clarification and interpretation of the statute, and 2) changing the statute to specifically allow dispensaries.
Dispensary advocates initially took the litigation route. It was only after the Court of Appeals started ruling against dispensaries in 2011 that they began to look at the legislative route. The "change in direction" that you refer to has actually been on the part of the dispensary advocates.
The Michigan Supreme Court will provide guidance shortly in the McQueen case. We will know then whether the legislative route is needed after all, and, if so, to what extent.
Stephen K. Postema
Ann Arbor City Attorney
Arborside is safe
"Please clarify that the Arborside medical cannabis dispensary on Packard St. has not been raided," emailed marijuana advocate Chuck Ream, who was quoted in the same article. "Especially our older and very sick members must know that we are safe, clean, and open.
"I am the only continuity between Arborside and the previous dispensary on our site that was looted last year by black masked, taxpayer funded hooligans from LAWNET. The legal case relating to this robbery by the 'jack booted thugs' has been settled.
"Arborside is safe, and we follow every law or regulation that we can find."
[Originally published in January, 2013.]
On January 28, 2013, Dave Darwin wrote:
Stephen Postema needs to stop patting himself on the back. He must think twice about running for a seat on the bench, there will be many people opposing him. Also, stay tuned we have more dirt on Postema wrong doings.
On January 28, 2013, John wrote:
I am a loyal reader of the observer and would have to say this is one of my favorite blogs in town. But todays article trully disapoints me, Stephen Postema is not should not be trusted. Mr Postema uses the media to his advantange and this article today makes me to beleive that the Chronicle has fallen to his selfish ways. First off, I can say I dont beleive Dave Askins has it against Postema, he reports the news as he see's it. Although I find the Chronicle a little boring, one can tell by past reporting Mr. Askins does not get personally involved in his storys. Second, my father always told me "Birds of a Feather Flock Together" where is Barnet Jones he was Postema right hand when he served as Cheif of Police. Postema is one of the highest paid City Attorneys in Michigan with plenty of perks and five other City Attorneys under him that are all on public payroll. It disgust me to know that he would take advantage of the hard working tax payers of our City, Postema time is up and he needs to move on. I am happy to see the new City Council members looking out for the little people in our town, after all its our hard work that pays these individuals salarys. I hope that they proceed in investigating Postemas wrong doings, there still a few "Good Ole Boys" left in town coucil needs to deal with these people who think they can bend the rules and get away with it.
On January 29, 2013, wrote:
Dave & John
In the future, please try to refrain from posting naive and ill-informed comments about accomplished, caring, and honest people. Spare other readers your pettiness. It will be greatly appreciated.
On January 29, 2013, caed wrote:
A great article about a great man!!
On February 5, 2013, Stephen K. Postema wrote:
I appreciated that the Observer published my follow up letter to give credit where it was due. In the editing of the letter for publication because of size constraints, there was a significant omission which I need to remedy here. Senior Assistant City Attorney Kevin McDonald worked for years extensively on the HDC matter throughout the development process to ensure that all of the relevant development and contract issues were done correctly. Because of the careful attention to these matters by Mr. McDonald (and others in the City), the defense of the litigation issues was made easier. He also assisted in the litigation, along with many others.