Brown v. City of Upper Arlington

• Decision Date: 25 March 2011
• Docket Number: No. 09–4396.,09–4396.
• Citation: 637 F.3d 668
• Parties: Mark BROWN, Plaintiff–Appellee,v.CITY OF UPPER ARLINGTON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

637 F.3d 668

79 Fed.R.Serv.3d 194

Mark BROWN, Plaintiff–Appellee,

v.CITY OF UPPER ARLINGTON, Defendant–Appellant.

No. 09–4396.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 19, 2011.Decided and Filed: March 25, 2011.

ARGUED: Brandi L. Dorgan, Isaac, Brant, Ledman & Teetor, LLP, Columbus, Ohio, for Appellant. Mark G. Kafantaris, Columbus, Ohio, for Appellee. ON BRIEF: Brandi L. Dorgan, Mark D. Landes, Isaac, Brant, Ledman & Teetor, LLP, Columbus, Ohio, Jeanine A. Hummer, Thomas K. Lindsey, City of Upper Arlington, Upper Arlington, Ohio, for Appellant. Mark G. Kafantaris, Columbus, Ohio, for Appellee.Before: BATCHELDER, Chief Judge; MARTIN and SUTTON, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

A tree once grew in Upper Arlington. When the City decided to cut it down, the adjacent homeowner protested. First in front of the City's Tree Commission, then in state court, ultimately in federal court, the parties vied over the propriety of removing the tree and eventually over whether the courts should enjoin the City from moving ahead with its plans. Soon after the federal district court ruled in favor of the City, a group of City employees, over the protest of the homeowner, removed the 40–year–old tree. The homeowner was not pleased, having lost not just the tree but the basis for any further litigation as well. The district court was none too happy either, and it sanctioned the City for contempt of court.

Although we appreciate the district court's frustrations with the City's conduct, we see no basis for using the contempt power to deal with the problem. The federal courts' traditional contempt power does not apply because the City did not violate any order: No formal injunction existed, whether before the court's decision or after it; the informal agreement between the parties and the court to hold off on the tree cutting ended with the court's decision rejecting Brown's claim; and the Federal Rules of Civil Procedure do not automatically stay this kind of judgment, see Fed.R.Civ.P. 62(a), (c). The federal courts' “inherent” contempt power does not apply either: Brown did not seek a stay pending appeal, and at most signaled a desire to refile his state law claim in state court, which would give the state courts, not the federal courts, the inherent power to protect their jurisdiction. We vacate the decision and remand the case to the district court.

I.

In front of Mark Brown's house, next to a public street, once stood a 40–year–old sweet gum tree planted by the City of Upper Arlington, a suburb of Columbus, Ohio, that 34,000 people call home. See City of Upper Arlington, About UA, http:// www. uach. net (last visited Mar. 23, 2011). The tree was on City property.

In April 2008, Steven Cothrel, the Superintendent of the City's Parks and Forestry department, told Brown that the tree was decayed and dying, that the City planned to remove the tree as a result and that it would replace the old tree with a new one. Brown responded that the tree was “quite healthy” and asked for a hearing to contest the tree's removal. R.11–1.

Brown appeared twice before an entity known as the Upper Arlington Tree Commission, the modest jurisdiction of which extends to making non-binding recommendations to the City about arboreal matters. In each instance, Brown claimed that the tree was just fine and that the City had no basis for taking it down. In August, the Commission denied Brown's appeal, after which Cothrel wrote Brown a letter saying the City would remove the tree.

Brown wrote back, accusing Cothrel of “transcend[ing] the bounds of decency and professionalism” and of coming up with pretextual reasons for cutting down the tree. R.11–3 at 1. Cothrel “made a mistake,” the letter continued, when he first decided to remove the tree, and he was “not professional enough to admit it.” Id. Brown concluded by asking the City not to remove the tree while he considered filing a lawsuit. The City obliged, for then.

On September 2, 2008, Brown filed a complaint in state court, claiming that the tree cutting would violate his rights under the substantive due process and equal protection guarantees of the Fourteenth Amendment and under a city ordinance. He 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.

The parties consented to disposition by a magistrate judge, who held an evidentiary hearing on September 24. Noting that the state court's temporary restraining order had expired, the court told the parties that “I would expect that between now and the time the Court issues its decision, ... if the city undertakes or concludes that it intends to take action, I would expect the city to notify plaintiff's counsel and the Court immediately.” R.34 at 116. The City agreed.

In an opinion dated October 28, a Tuesday, the court rejected Brown's federal claim on the merits and opted not to resolve the state claim. The court also rejected Brown's request for a preliminary injunction. The next day, the court entered a final judgment dismissing the case. That same day, October 29, Brown's lawyer spoke to the City's outside counsel and told her that Brown would refile his complaint in state court no later than Friday, October 31.

At around 9:00 a.m. the next morning, Thursday, October 30, Cothrel arrived at Brown's house with an entourage of 10 or so, including a police officer in a cruiser and a city worker driving a “cherry-picker.” R.22–2 at 2. Cothrel told Brown that the City Attorney, Jeanine Hummer, had authorized him to cut down the tree. Brown and his attorney tried to reach Hummer and the City's outside counsel to stop the removal, but they got nowhere. Despite Brown's protests—he told Cothrel that removing the tree “constituted a criminal contempt of court” and was an “obstruction of justice”—the city workers cut the tree to a stump. Id. at 3. The record does not reveal whether the City, as promised, planted a new tree and if so what kind of tree it is.

Brown moved for reconsideration in the district court and for a finding that the City was in contempt of court. The court denied the motion for reconsideration. Invoking its “inherent power,” the court granted the contempt motion, finding that the City “intentionally destroyed the Tree the preservation of which was the subject of the litigation,” and that 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.” R.31 at 9. The court ordered the City to replace the tree with “one of comparable genus” and to pay the attorney's fees incurred by Brown in filing the contempt motion. Id. at 10. The City appealed.

II.

The easy part of this appeal is appreciating the district court's frustration with the City's sharp-elbowed conduct. The case was coming to an end, and Brown already had been given considerable process over an uphill set of claims: (1) a purported right under the Fourteenth Amendment to prevent a city from cutting down its own tree; and (2) a purported right under local law to prevent a city from cutting down a 40–year–old tree that its experts thought “was going to imminently fall on some child walking to the nearby school.” R.34 at 34. A stay pending appeal thus seemed doubtful in the federal case, and in light of the federal court ruling it seems equally doubtful that the threatened refiling in state court would lead to a preliminary injunction. Had the City honored Brown's request to wait even a few days more, a not-unreasonable request in view of the month and a half the parties already had waited for resolution of the federal case, it seems likely that the case, if not the tree, soon would have come to a natural end.

Why the City and its outside counsel did what they did is hard to justify, as the district court understandably concluded. What to do about it is another matter.

Federal courts have broad contempt power, which exists for the “preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts.” Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987) (internal quotation marks and citation omitted). One of the “underlying concern[s] that gave rise to the contempt power,” and the most salient reason for invoking it, is the “disobedience to the orders of the Judiciary.” Id. No one thus doubts that a court may punish parties for “willful disobedience of a court order.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 766, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980) (contempt power used to dismiss case based on plaintiffs' refusal to answer defendant's interrogatories) (internal quotation marks omitted); see also Young, 481 U.S. at 789–90, 107 S.Ct. 2124 (contempt power used to punish violation of a permanent injunction). And that is true even if the conduct occurs outside the proceedings at hand, see Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991), and even if the court issued the underlying order in error, see United States v. United Mine Workers of Am., 330 U.S. 258, 294, 67 S.Ct. 677, 91 L.Ed. 884 (1947) (“Violations of an order are punishable as criminal contempt even though the order is set aside on appeal, or though the basic action has become moot.”); cf. Willy v. Coastal Corp., 503 U.S. 131, 139, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992) (Rule 11 sanctions allowed even when court lacked subject-matter jurisdiction over the underlying case).

These classic formulations of the contempt power do not help Brown. The City did not violate any court orders, formal or informal, when it cut the tree down. The federal court never entered a temporary restraining order, and its October 28th decision...