Postema Mulling Run for Circuit Court Judge?
In an email sent to The Ann Arbor Chronicle, city attorney Stephen Postema stated that he has not yet decided whether to seek the judgeship that will be open on Michigan’s 22nd Circuit Court when Melinda Morris leaves the bench. Her term ends in January 2013 and she will be retiring.
From Postema’s statement: “Finally, as to my future plans … [m]any persons have asked whether I will seek this position you mentioned or suggested that I run, but, for your information, I have made no decision on this.”
Terms for circuit court judges are six years. They’re chosen in non-partisan elections. Eligibility includes residing in the judicial circuit, being licensed to practice law for at least five years, and being younger than 70.
The circuit court is the civil/criminal division of the Washtenaw County Trial Court, and has original jurisdiction in civil cases involving more than $25,000, and in criminal cases involving a felony or certain serious misdemeanors.
Postema’s apparent consideration of the possibility to seek elected office next year reflects an evolution in his perspective over the last seven years on the job as Ann Arbor’s city attorney. Based on an interview with Postema, Ann Arbor News reporter Tom Gantert wrote in a Feb. 24, 2004 article: “Postema insists he has no political ambitions and gives credit to his staff of eight full- and part-time assistant city attorneys. ‘I want this city to be a top-notch legal firm,’ he said.”
So. He’s running.
He will probably run as a conservative, and will not seek much support from voters in Ann Arbor City.
He runs and loses, that’s my dream scenario.
If the quality of work he did while a Ann Arbor City Attorney is any indicator, Mr. Postema would be a total failure as a judge. Unless you love lack of tranparency, openess and accountability.
Unfortunately, for the comments above, he has pretty good name recognition. The average Ann Arbor voter will assume they are voting for an incumbent,
Mr Postema has done an outstanding job as City Attorney. He took a thankless job that nobody (and I mean NOBODY) wanted and turned an unorganized mess into the best run city attorney’s office in the State and the envy of every other city attorney’s office in the State. You may disagree with his politics — but he was won his cases and his opinions have stood up. He has been good for the City. He came from a high-paying position at a prestigious law firm to slum it with us here in Ann Arbor. I hope he doesn’t leave but who could blame him. I’d like to thank him for his service.
Opinions? What opinions? He claims he doesn’t issue “opinions”, which would have to be filed with the City Clerk according to the City Charter. Instead, he issues “memoranda”, which he keeps secret.
Mr. Cahill, are you claiming that Mr. Postema would not have support in Ann Arbor, his hometown, where he has helped literally hundreds of people and where he and his family are well known and respected. You must be joking, not from Ann Arbor, or completely unaware of Postema’s roots, legal career, and reputation.
There probably isn’t a neighborhood in Ann Arbor where someone doesn’t know Postema or someone in his extended family. He grew up in a modest neighborhood near Dicken school. His father was a prominent student pastor at a chapel near campus: active in civil rights, peace and social justice issues, interfaith dialogue, and one of the founders of the ARK music venue. His mother did volunteer work and worked in the Ann Arbor Public Schools. There are many people in town who know his parents and appreciate their kindness and work.
Postema was a well known student and athlete at Pioneer High. He was a local boy who made good and still came back to his hometown to work. Postema married into another longtime Ann Arbor family. His wife teaches in the Ann Arbor Public Schools and the entire extended Postema family has friends and contacts all over Ann Arbor.
Postema worked at a well known and influential law firm in town and worked there with many other prominent attorneys who were active and influential in this city. He took care of the legal problems of all sorts of people and companies, developing not only a local, but statewide reputation. He was generous with his work for charitable organizations and free legal work for people who couldn’t afford to pay him.
Basically, Postema was a lawyer in a top law firm who left because his hometown needed serious legal help and couldn’t afford to pay for what this really costs from such a firm. He has done an excellent job representing the City. He is very well respected by the lawyers and judges in this community, community leaders, business people, and people of all political persuasions. Postema and his staff have expertly helped the City out of numerous matters (many with absurd claims), including those seeking exorbitant sums of money from the City.
Further, your attempt to portray Postema as a “conservative” is quite amusing given his background and his willing and diligent representation of an all-Democratic Council in one of the most liberal communities in the state.
Finally, I respect people who are public servants and actually do things to help the community. Postema has done this for a long time, long before he became City Attorney, and he will continue to do so long after he leaves, whether as a Judge or anything else he chooses to do.
I agree with Town Pride and could write the same thing. I’ve lived in the 1st Ward since 1975, and known the entire Postema family since 1970 or so. What a strange concept, David, that should Stephen Postema run for judicial office that he would not seek support, or receive it, from those who lived in Ann Arbor. Stephen has lived in Ann Arbor continuously since the early 1960′s until now (expect for college at Harvard and law school at the University of Wisconsin.) If we only counted the many Ann Arborites who know this thoughtful, kind, and well-liked man, that alone would be substantial support. Ann Arbor residents who don’t know him personally can not help but see Stephen to be fair minded and especially effective in his work on behalf of Ann Arbor. There are many instances that even casual observers of city affairs must appreciate and remember when the city attorney’s office action improved everyone’s quality of life. I don’t know if he is running for judge or not, but it would not be hard to find many voters in my own neighborhood (or among my friends) who would not immediately support him.
I really don’t care if Postema had wonderful parents. He’s going to have to run on his record, which includes his less than stellar work as the Ann Arbor City Attorney, and has a lot of ‘explaining’ to do about how that relates to the type of judge he would be.
“Postema worked at a well known and influential law firm in town and worked there with many other prominent attorneys who were active and influential in this city.”
So was this cut and pasted from his campaign website? Lol.
Guess his campaign organization is already on the case!
I practiced law with Stephen Postema for 15 years. I have seen first hand his deep commitment to clients and community, his high ethical standards, and his strong sense of fairness and justice.
Of the many examples I could give, one that is most striking was his representation of a crime victim in a civil suit against a company that denied having any role in the crime. When Stephen won the case on behalf if his client — after years of litigation all the way up to the Michigan Supreme Court — he changed the law in the State of Michigan to help such victims.
Our community has benefitted from his handling of legal matters over the past several years. Those who understand the Rules of Professional Conduct (rules under which Michigan attorneys operate) know that an aspect of attorney conduct involves confidential communications with his or her client. This is wholly separate from the notion of transparency and enables the delivery of sound advice and honest assessment of rights, obligations, and risks.
Reposting with typo corrections:
I agree with Town Pride and could write the same thing. I’ve lived in the 1st Ward since 1975, and known the entire Postema family since 1970 or so. What a strange concept, David, that should Stephen Postema run for judicial office that he would not seek support, or receive it, from those who lived in Ann Arbor. Stephen has lived in Ann Arbor continuously since the early 1960′s until now (except for college at Harvard and law school at the University of Wisconsin.) If we only counted the many Ann Arborites who know this thoughtful, kind, and well-liked man, that alone would be substantial support. Ann Arbor residents who don’t know him personally can not help but see Stephen to be fair minded and especially effective in his work on behalf of Ann Arbor. There are many instances that even casual observers of city affairs must appreciate and remember when the city attorney’s office action improved everyone’s quality of life. I don’t know if he is running for judge or not, but it would not be hard to find many voters in my own neighborhood (or among my friends) who would immediately support him.
I just searched for Postema’s campaign website, mentioned in #9 above, and I couldn’t find it. I was impressed by his campaign biography in #7, and thought there might be some more info on the website.
Then, I realized there was a reason I couldn’t find the website: it’s secret! 8-)
Steven Postema’s practice of keeping legal advice secret by categorizing legal opinion as “advice memos” weakens representative government.
For example, Steven participated in the legal strategy used to transfer park land to the U of M for the Fuller parking garage. The legal basis for the decision to create a long term lease for the land is secret.
There are numerous cases in which the Steven’s failure to publish legal opinion has caused a lack of trust and created the appearance of back room deals.
If the intent of city officials were more transparent, we could use our energy to discuss issues rather than having to dig out the facts on which government is based. Failure to provide written opinions has helped the mayor and other officials make an end run around the public.
As a general observation, the law often favors the powerful. In many cases, the average person cannot enforce their legal rights.
For example, if your property is assessed at above market value, you can sue the city. However, unless the amount is large, it is impractical to do so. When Pfizer Company sued the city to reduce their assessment, the city lost. But if your house is assessed at 10 or 20% above what you could sell it for, you will pay thousands of dollars in excess taxes over the years, and you have no practical recourse to obtain your right to a market rate assessment.
Voters should consider if Steven will do a good job of representing the average person, or whether he is likely to side with the powerful.
From today’s AnnArbor.com:
“City Attorney Stephen Postema said last week his office has reviewed the Percent For Art Program, and he’s not aware of anything illegal about what the city is doing. He said he’ll gladly issue a written opinion when the council as a whole directs him to do so.”
He’s ‘not aware’? From this quote he sounds like a weasel lawyer, and for anyone to think he’s going to be any different as a judge is sadly mistaken.
Susan Kornfield writes: “Those who understand the Rules of Professional Conduct (rules under which Michigan attorneys operate) know that an aspect of attorney conduct involves confidential communications with his or her client. This is wholly separate from the notion of transparency and enables the delivery of sound advice and honest assessment of rights, obligations, and risks.”
In my experience, I’ve often found that “those who understand the Rules of Professional Conduct” are familiar with the rules only in the context of the private sector, where a private attorney has a private individual as a client. The position of Ann Arbor’s city attorney is different from that scenario in two ways. First, in the terminology of the Rules of Professional Conduct, the context is “organization as client.” Second that organization is a public body, and subject to laws that can trump attorney-client privilege. As a consequence, legal counsel like Ann Arbor’s city attorney cannot operate within the usual walls of complete confidentiality for all communications, which attorneys to individual clients in the private sector enjoy.
One impingement on the confidentiality that the Ann Arbor city attorney’s communications might otherwise enjoy (if he were legal counsel to a private individual), is contained in the Ann Arbor city charter. Among the duties of the city attorney, as enumerated in the city charter: “(1) Advise the heads of administrative units in matters relating to their official duties, when so requested, and shall file with the Clerk a copy of all the Attorney’s written opinions;”
Based on the quote from the news article cited by Peter Zetlin in Zetlin’s comment, it appears that Postema is construing the charter as if it read, ” … and when so requested shall file …” but that’s not what it says. The practical impact of the charter language is that the city attorney is supposed to give advice when asked, and if he writes down an opinion about it, then it’s to be filed with the city clerk, i.e., made public.
Now, when David Cahill writes in his comment, “Opinions? What opinions? He claims he doesn’t issue ‘opinions,’ which would have to be filed with the City Clerk according to the City Charter. Instead, he issues ‘memoranda,’ which he keeps secret,” some readers might read it as simply inflammatory rhetoric.
However, consider the following excerpt from the transcript of a hearing before Judge Morris in the circuit court in January of this year. Morris articulates how she figures that the city attorney would behave as most lawyers would and give his clients his opinion. Assistant city attorney for Ann Arbor Abigail Elias then disabuses Morris of the idea that the city attorney is in the opinion-writing business:
But the job description of the city attorney as set forth in the city charter certainly contemplates the idea of writing formal opinions, and further requires that such opinions are public. I would contend that many of the writings of the city attorney that he labels “advice memos” are in fact opinions, required to be disclosed under the charter, but are withheld from the public because they are not labeled with the word “opinion.” There’s a vast difference between an advice memo that says, “I would advise you to settle this lawsuit because we’d lose in court, ” and one that says, “The city’s percent for art program is legal, based on the following interpretation of thus and such a statute and based on the following case law …”
Someone who took the job of city attorney and in the course of that service, generated a corpus of opinions on various matters, would have something of a track record on issues. Some of those issues would be tried in the circuit court if there were litigation. So it would put that city attorney in an odd position, if he were subsequently to run for and win a seat on the circuit court. That former city attorney, now judge, would have produced set of opinions on various issues all collected in one place for easy review. Those opinions certainly would not be binding on the judge for cases he heard. But to disagree with his own previously published opinion would tend to reflect poorly on the quality of his service as city attorney. As a judge, that former city attorney would have greater latitude had he not produced any written opinions. By not producing any written opinions, Postema avoids putting himself in that position.
In sum, Postema doesn’t need to be directed by the city council as a whole in order to be allowed to write an opinion on the legality of the city’s public art program. It’s just that if the council did direct him to do so, he would not have the option of refusing on pain of insubordination — the council hires the attorney directly. If Postema had a healthier understanding of how attorney-client privilege works in the public sector, with an organization as a client, I think the written opinion on public art would have long since been filed with the clerk’s office. The desire to see such an opinion has been expressed by councilmembers (but only a minority) for at least two years. I wrote a column addressing the issue of attorney opinions back then, when Stephen Kunselman (Ward 3) was already raising questions about it.
At the Ward 3 Democratic primary candidate forum held this year at the Malletts Creek library branch, Kunselman ventured that maybe a council resolution would be necessary in order to get the city attorney to produce a written opinion on the public art program. Maybe so. So far, though, we haven’t seen such a resolution make it onto the council’s agenda. I think it would be interesting politics for Kunselman to just put that kind of resolution on the agenda — even if he doesn’t think the votes aren’t there to approve it. We’d at least get to see how councilmembers line up on this open government issue.
From the City Charter:
“City Attorney
SECTION 5.2.
(a) The Attorney shall be attorney and counsel for the City, and shall be responsible solely to the Council. The Attorney shall:
(1) Advise the heads of administrative units in matters relating to their official duties, when so requested, and shall file with the Clerk a copy of all the Attorney’s written opinions;
(2)….”
It’s likely that the City Attorney’s opinion (not filed) is that the attorney–client privilege outweighs his legal obligation to adhere to the Charter. If so, perhaps he should advise the Council to work to change this provision in the Charter to make it consistent with his legal opinion.
Without having any documentation or scholarship to back me up, I would speculate that treatment of the city attorney’s advice and opinions might differ according to the subject at hand.
The topics that justify executive sessions would seem to me to justify confidential opinions as well. These would include personnel and labor matters and purchase of property. Litigation against or on behalf of the city also seems obvious as something to be held closely.
But as to whether a particular ordinance conforms with the law (state, Federal, and city charter), I would think that a frank and open assessment is appropriate, since it is a matter that council should deliberate on its merits. That deliberation itself is subject to transparency requirements, and so should their attorney’s best estimation based on a reading of the law.
(I read Dave Askin’s comment after writing this; there are some overlaps.)
By way of comparison, the city of Madison, Wisc. posts the city attorney’s opinions on the city website: [link] An opinion on the legal grounding for the public art ordinance would fit within the general character of the subject matter in those opinions.
This opinion is a gem
[link]
“In my opinion, state law on this issue is hopelessly vague”
I also agree with the Town Pride. My family has known the Postema family since the early 1970′s. I know many residents who have been helped by Stephen Postema and are grateful for his work as City Attorney. And as far as his record he is certainly appreciated for his work in my 5th ward neighborhood where he got rid of two nuisance houses and a pit bull problem. These were a plague on our neighborhood several years ago and our entire neighborhood is very thankful for his work and that of his assistant city attorneys ( and to the policeand City Council members who were concerned about these neighborhood problems we had. )
“I think it would be interesting politics for Kunselman to just put that kind of resolution on the agenda — even if he doesn’t think the votes aren’t there to approve it. We’d at least get to see how councilmembers line up on this open government issue.”
That would solve the issue of Postema saying “he’s not aware of anything illegal about what the city is doing”. Why wouldn’t every member of Council want to have this ‘advice’ in writing? Or explain why they could vote against getting a written legal opinion.
Stephen Postema does not obey yet another section of our City Charter that requires transparency:
City Records to be Public
SECTION 18.2. All records of the City shall be public, shall be kept in City offices except when required for official reasons or for purposes of safekeeping to be elsewhere, and shall be available for inspection at all reasonable times. No person shall dispose of, mutilate, or destroy any record of the City, except as provided by law, and any person who shall do so contrary to law shall be guilty of a violation of this charter.
This section gives citizens more rights to public records than the Freedom of Information Act does. There aren’t any weasel words about exemptions.
But Postema told me personally that the FOIA supersedes the charter! He made a convoluted, unconvincing argument.
Is there a pattern here?
I agree with Dave Askins that some purported advice from the attorneys is actually opinion. The example Dave provided, just below the second bolded section demonstrates the office’s thinking on it clearly:
But the other thing is
(11) that more likely the advice [sic] would be, you know, X would be
(12) more likely to be upheld by a court than Y, as opposed to,
(13) you should do A, B, or C, because we are outlining the
(14) legal risks, the legal issues as opposed to what a course
(15) of action would be.
Predicting outcomes and explaining the method of determining the odds/risks is an opinion, not advice.
The city will likely be sued over this as well as over the percent for art program (and rightfully so, as I’ve said many times.) That’s an opinion, by the way. (I think I’ve said that before as well, but maybe it’s just deja vu.)