Legal Commentary

?A Tree Once Grew in Upper Arlington?

By Jonathan H. Adler

So begins the opinion for the court by Judge Sutton of the U.S. Court of Appeals for the Sixth Circuit in Brown v. City of Upper Arlington, in which the court considered whether it was proper to hold a city in contempt for cutting down a tree. Here is Judge Sutton?s introduction and summary of the case:

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.

Full post as published by The Volokh Conspiracy on March 25, 2011 (boomark / email).