May Plaintiff Cut off a Poor Defendant’s Appeal, by Having the Sheriff Sell off Defendant’s Right to Appeal?

That is the question I’m facing with the latest twist in Obsidian Finance Group, LLC v. Cox, a pro bono First Amendment case that I’m litigating before the Ninth Circuit. For more on the substantive First Amendment issue, see the materials collected here. But this twist is all about procedure (as so many legal questions are).

Here’s the matter in a nutshell, and somewhat oversimplified:

  1. Obsidian Finance and Kevin Padrick sue Crystal Cox. They win at trial, and get a large judgment.
  2. Cox appeals on First Amendment grounds (I’m representing her on appeal). Cox has very little money, so she can’t put up a so-called “supersedeas bond” (a bond for the full amount of the judgment) that is required to keep plaintiffs from seizing her assets to execute the judgment. But that doesn’t block her appeal, since under federal law one generally doesn’t need to put up a bond in the amount of the judgment to appeal — one only needs the bond to stop execution on the judgment pending appeal.
  3. But plaintiffs have a different view: They go to Oregon court, register the judgment, get a writ of execution, and ask the sheriff to seize and sell to the highest bidder Cox’s “intangible personal property,” in the form of … Cox’s right to appeal.

That’s right: Plaintiff’s plan is to have the sheriff sell off Cox’s right to appeal, so that “Cox will be incapable of continuing the suit and the highest bidder at the foreclosure sale (whether that be plaintiffs or someone else) will take an assignment of Cox’s interest in the appeal, becoming the real party in interest.” Presumably the plan is that the highest bidder would be the plaintiffs, who will buy Cox’s rights for a modest amount, and then use those rights to drop the appeal. No more appeal; the judgment is final; end of story.

Of course, if plaintiffs can do this to Cox, any plaintiffs who win a judgment against a defendant who can’t afford a supersedeas bond can do the same. Poor civil defendants’ rights to appeal would thus be lost, and so would the rights to appeal of plaintiffs who weren’t poor at the outset but face a ruinous judgment that they can’t afford to stay.

To be sure, in practice poor civil defendants often can’t appeal in any event, because they don’t have the money to hire a lawyer. But right now at least they can sometimes get pro bono counsel who is interested in the legal issue, or hire a lawyer with the promise to pay if they win the appeal and their assets are thus freed up, or get help from a lawyer friend, or appeal themselves if they are legally trained, or appeal pro se even if they aren’t legally trained. If the plaintiffs’ stratagem is accepted, though, such defendants’ appeal rights could be categorically cut off.

I know what you’re thinking — you’re thinking, “Yowza!” Yes, that’s what I thought as well, and I wrote a motion and accompanying memorandum all about it. You can now read my Memorandum in Support of the Motion to Make the Judge Say, “Yowza!,” Too, and also the plaintiffs’ response, filed this afternoon. I just finished the rough draft of the reply, which is due tomorrow afternoon; I will post it here some time tomorrow evening. [UPDATE: The reply has now been posted.]

And this coming Tuesday morning, I’ll be in beautiful Portland, Oregon, arguing this very matter in federal district court. As I always say, there’s no practice like pro bono practice.