Tomorrow, April 29, is Arbor Day, a holiday on which we are encouraged to plant and care for trees. That makes the Sixth Circuit’s recent decision involving an old tree in suburban Columbus, Ohio all the more timely. What follows is the tale of this special tree, along with the Sixth Circuit’s decision which has helped define the scope of the federal judiciary’s power in this Circuit.
In the City of Upper Arlington, Ohio, there once stood a 40 year old sweet gum tree in front of Mark Brown’s house on City property. In April 2008, the Superintendent of the City’s Parks and Forestry Department told Mr. Brown that the tree was decayed and dying, and that the City intended to remove the tree and plant a new one. Mr. Brown strongly disagreed with the City’s decision. He thought the tree was “quite healthy,” and he vigorously opposed the tree’s removal. Mr. Brown ultimately appealed to the City’s Tree Commission, but his efforts to save the old tree bore no fruit.
Mr. Brown subsequently asked the City to refrain from removing the tree while he considered filing a lawsuit. The City obliged—at least for the time being. On September 2, 2008, Mr. Brown filed a complaint against the City in state court, and asked for a temporary restraining order, which the state court granted. On September 10, the City removed the action to federal court based on federal question jurisdiction.
After the state court’s temporary restraining order had expired, the district court told the parties that if the City intended to take action against the tree, the court expected the City to notify plaintiff’s counsel and the court immediately. The City agreed.
On Tuesday, October 28, the district court rejected Mr. Brown’s federal claim on the merits and decided not to resolve his state claim. The next day, the district court entered a final judgment dismissing the case without granting a stay under Rule 62(c) of the Federal Rules of Civil Procedure. That same day, October 29, Mr. Brown’s lawyer spoke to the City’s attorney and informed her that Mr. Brown would refile his complaint by Halloween on Friday.
At around 9:00 a.m. the next morning, Thursday, October 30, a crew of about 10 city workers showed up at Mr. Brown’s house, along with a police cruiser and a city worker driving a “cherry-picker.”
Click below to continue reading and find out what happened next…
The stage was set for the final showdown over the sweet gum tree after the team of city workers arrived. Over Mr. Brown’s boisterous protests, the City crew proceeded to cut the old tree to a stump. (The record is unclear whether the City planted a new tree in its place, like it promised.).
In response, Mr. Brown moved for reconsideration in the district court and for a finding that the City was in contempt of court. Although the district court denied the motion for reconsideration, it invoked its “inherent power” and granted Mr. Brown’s contempt motion because the City “intentionally destroyed the Tree the preservation of which was the subject of the litigation,” and because the “City’s actions foreclose to plaintiff the possibility of meaningful review by either this Court [or] the Court of Appeals of the judgment . . . or pursuit in any meaningful fashion of the state court claim preserved to plaintiff by this Court’s judgment.”
On appeal, the Sixth Circuit reversed. See Brown v. City of Upper Arlington (Sixth Circuit, Case No. 09-4396). While the Court of Appeals, like the district court, clearly was miffed by the City’s actions (“Why the City and its outside counsel did what they did is hard to justify”), it held that the district court exceeded its admittedly broad contempt power. As the Sixth Circuit observed, the City did not violate any formal or informal court orders when it cut down the tree. The district court also did not enter a temporary restraining order, and it rejected Mr. Brown’s motion for a preliminary injunction when it dismissed his case as a matter of law. Also, the state court’s temporary restraining order already had expired by its terms. In short, “[o]n October 30th, there was no court order that the City could have violated.” The Sixth Circuit also noted that the City did not violate even its informal agreement with the district court, because the City promised only to forebear until the district court had ruled.
While the Sixth Circuit recognized that federal courts have inherent power to protect their jurisdiction through sanctions, the only jurisdiction that the City’s action could have undercut in this case was the state court’s jurisdiction, and a federal court’s inherent power does not extend to the affairs of another sovereign. The Sixth Circuit also stated that a federal court’s “unspoken authority to manage its proceedings, vindicate its authority, and effectuate its decrees” remains limited, and does not include the power to punish action that did not violate any court order and occurred after dismissal of the case. The Sixth Circuit recognized that “[i]n the absence of a court order, a party is not obligated by law, as opposed to the customs of trust in the local bar, to comply with an invisible stay.” After all, a federal court’s inherent powers carry great “potency,” and they must be exercised with “restraint and discretion.”
The Sixth Circuit ultimately concluded that “[i]n the final analysis, it may well be true that the City did not play by the Marquess of Queensberry rules. And one day it may happen that the City will be on the receiving end of comparable conduct. Still, this reality remains: The City did not violate any existing order of the federal court, the traditional ground for invoking the contempt power.”
The Sixth Circuit’s Brown decision makes clear that federal courts have finite authority, which in the end protects citizens from the excessive use of judicial power. While limits on governmental authority did not save Mr. Brown’s sweet gum tree from the blade, there is something we can all do tomorrow on Arbor Day in remembrance of the old tree that once stood in Upper Arlington. And that is to plant a tree.