Early Bird gets victory with judge’s decision

BY RYAN BERRY 

MANAGING EDITOR 

GREENVILLE – Although The Early Bird has commonly been known as a newspaper for 45 years, a legal declaration had been missing. On Dec. 3, Judge Jonathan P. Hein, Darke County Court of Common Pleas, wrote, “The Court declares that the weekly newspaper known as “The Early Bird” as published by Brothers Publishing Company, LLC qualifies as a newspaper of general circulation within Darke County, Ohio…”

While the judgment does not affect the overall look of the newspaper or how the information is delivered each week, it opens up the possibility of increased content.

In August, the locally owned and operated newspaper notified the Darke County Sheriff and the Clerk of Courts that it could save Darke County and local banks tens of thousands of dollars a year by publishing legal ads in The Early Bird. Plus, The Early Bird could deliver those advertisements to over six times as many households as the daily paper, which is owned by a large out-of-state corporation.

The Sherriff notified the daily paper in early September that he would be switching their legal advertising to The Early Bird. The daily paper asked for a mediation hearing and one was held on Sept. 24 in Judge Hein’s court room. The judge determined there was nothing to mediate. Acting on behalf of The Early Bird, Attorney Eric Brand indicated he would file papers asking for a “declaratory judgment” on the law, which was changed in September 2011.

Previously, a newspaper was required to be a paid publication, with no less than four pages, have a second class mailing privilege, and contain news and information.

The revised law eliminated mail delivery as the sole means of delivery. Also dropped was the requirement that the publication be paid. Several other provisions of the law were also changed, requiring the newspaper be in existence at least three years (change from one year) and have at least eight pages. The newspaper must also contain at least 25-percent editorial content.

According to the decision by Judge Hein, The Early Bird’s only remaining requirement is to complete an audit.

Fred Foutz, publisher, said, “We are in the process of completing an audit with the Circulation Verification Council (CVC) a national newspaper auditing firm. After that time we will again approach the Sheriff, Darke County Treasurer Scott Zumbrink, Clerk of Courts, all township and village administrators and local attorneys in an effort to save taxpayers money and increase the reach of all legal advertisements in Darke County.”

Decision and Judgment Entry

Petition for Declaratory Judgment

This matter came before the Court for purposes of resolving the petition for declaratory judgment and pursuant to terms of the Briefing Schedule filed October 12, 2012. Following the filing of briefs herein, the matter is ripe for adjudication.

Brothers Publishing Company, LLC is represented by Nicole L. Pohlman, Esq. Civitas Media, LLC is represented by Travis L. Fliehman, Esq. Margaret B. Hayes, the Assistant Prosecuting Attorney has previously appeared.

Case Facts

On September 10, 2012, the Darke County Prosecuting Attorney issued a written opinion which concluded that the weekly newspaper known as “The Early Bird” was a newspaper of general circulation. As such, The Early Bird was deemed eligible to provide publication services for notices required by R.C. 7.10 which provides as follows: “Except as provided in section 2701.09 of the Revised Code, all legal advertisements or notices shall be printed in a newspaper of general circulation and on the newspaper’s internet web site, if the newspaper has one.” Common examples of legal notices include: service of summons by publication pursuant to Civil Rule 4.4 and R.C. 2703.14; notice of Sheriff foreclosure sales required by R.C. 2323.07; and notices of tax deadlines and tax delinquencies provided by the Auditor and Treasurer.

The Daily Advocate has historically been the widest circulated newspaper of general circulation in Darke County and, as such, received the largest share of legal publication business for Darke County government and other subdivisions.(1) Disagreeing with the opinion of the Prosecuting Attorney, on Sept. 17, 2012, Civitas Media, LLC, dba The Daily Advocate filed with this Court a protestation letter pursuant to R.C. 7.12 (B). For reasons described herein, The Daily Advocate contends that The Early Bird does not qualify as a newspaper of general circulation.

The issue comes before the Court based on recent legislative changes to R.C.

(1) On January 29, 2008, the Prosecuting Attorney opined that The Versailles Policy was also a newspaper of general circulation. No challenge was made to this opinion. Since The Versailles Policy has customarily been used less frequently than The Daily Advocate for legal notifications.

7.12. The former statute was as follows:

§ 7.12. Qualifications for newspapers publishing legal notices

Whenever any legal publication is required by law to be made in a newspaper published in a municipal corporation, county, or other political subdivision, the newspaper shall also be a newspaper of general circulation in the municipal corporation, county, or other political subdivision, without further restriction or limitation upon a selection of the newspaper to be used. If no newspaper is published in such municipal corporation, county, or other political subdivision, such legal publication shall be made in any newspaper of general circulation therein. If there are less than two newspapers published in any municipal corporation, county, or other political subdivision in the manner defined by this section, then any legal publication required by law to be made in a newspaper published in a municipal corporation, county, or other political subdivision may be made in any newspaper regularly issued at stated intervals from a known office of publication located within the municipal corporation, county, or other political subdivision. As used in this section, a known office of publication is a public office where the business of the newspaper is transacted during the usual business hours, and such office shall be shown by the publication itself.

In addition to all other requirements, a newspaper or newspaper of general circulation, except those publications performing the functions described in section 2701.09 of the Revised Code for a period of one year immediately preceding any such publication required to be made, shall be a publication bearing a title or name, regularly issued as frequently as once a week for a definite price or consideration paid for by not less than fifty per cent of those to whom distribution is made, having a second class mailing privilege, being not less than four pages, published continuously during the immediately preceding one-year period, and circulated generally in the political subdivision in which it is published. Such publication must be of a type of which the general public resorts for passing events of a political, religious, commercial or social nature, current happenings, announcements, miscellaneous reading matter, advertisements and other notices.

The newly enacted statute is as follows:

§ 7.12. Qualifications for newspapers publishing legal notices

(A) Whenever a state agency or a political subdivision of the state is required by law to make any legal publication in a newspaper, the newspaper shall be a newspaper of general circulation, without further restriction or limitation upon a selection of the newspaper to be used. If no newspaper is published in such municipal corporation, county, or other political subdivision, such legal publication shall be made in any newspaper of general circulation therein. If there are less than two newspapers published in any municipal corporation, county, or other political subdivision in the manner defined by this section, then any legal publication required by law to be made in a newspaper published in a municipal corporation, county, or other political subdivision may be made in any newspaper regularly issued at stated intervals from a known office of publication located within the municipal corporation, county, or other political subdivision. As used in this section, a known office of publication is a public office where the business of the newspaper is transacted during the usual business hours, and such office shall be shown by the publication itself. As used in the Revised Code, “newspaper” or “newspaper of general circulation,” except daily law journals in existence on or before July 1, 2011, and performing the functions described in section 2701.09 of the Revised Code for a period of three years immediately preceding any such legal publication required to be made, is a publication bearing a title or name that is regularly issued at least once a week, and that meets all of the following requirements:

(1) It is printed in the English language using standard printing methods, being not less than eight pages in the broadsheet format or sixteen pages in the tabloid format.

(2) It contains at least twenty-five per cent editorial content, which includes, but is not limited to, local news, political information, and local sports.

(3) It has been published continuously for at least three years immediately preceding legal publication by the state agency or political subdivision.

(4) The publication has the ability to add subscribers to its distribution list.

(5) The publication is circulated generally by United States mail or carrier delivery in the political subdivision responsible for legal publication or in the state, if legal publication is made by a state agency, by proof of the filing of a United States postal service “Statement of Ownership, Management and Circulation” (PS form 3526) with the local postmaster, or by proof of an independent audit of the publication performed, within the twelve months immediately preceding legal publication.

In short, the recent version of R.C. 7.12 enacted several significant differences: (1) mail delivery was eliminated as the sole means of delivery since carrier delivery was added as an accepted means of delivery; (2) the paper can be a free newspaper since there is no longer a requirement the paper be sold “for a definite price or consideration paid for by not less than fifty per cent of those to whom distribution is made;” (3) the newspaper must have been in existence at least three years; (4) the paper must have at least twice as many pages as previously required.

This Court is called upon to determine whether The Early Bird qualifies as a newspaper of general circulation within the meaning of recently enacted R.C. 7.12 (A).

Principles of Statutory Construction

When interpreting a statute, the Courts are guided by the following principles.

As stated in State v. Harrison, 101 Ohio St.3d 308, 804 N.E. 2s 471 (2004):

{¶ 11} “The object of judicial investigation in the construction of a statute [804 N.E.2d 474] is to ascertain and give effect to the intent of the law-making body which enacted it.” Slingluff v. Weaver (1902), 66 Ohio St. 621, 64 N.E. 574, paragraph one of the syllabus. This court may engage in statutory interpretation when the statute under review is ambiguous. Id.

{¶ 12} “But the intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation. The question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact. That body should be held to mean what it has plainly expressed, and hence no room is left for construction.” Id. at paragraph two of the syllabus.

In the absence of ambiguity, the Courts should not consider legislative intent but merely give interpretation to the plain meaning of the words used. Wright v. State, 69 Ohio App.3d 775, 591 N.E.2d 1279 (1990). “It is not the judiciary’s function to rewrite the laws according to what the court perceives as just but to enforce the literal writing of the statue whenever possible.” Wright, supra. citing Bs of Edn. v. Fulton City, Budget Comm., 41 Ohio St.2d 147, 324 N.E.2d 566 (1975). Finally, if there is ambiguity, words in a statute must be given their ordinary and customary definitions. [citations omitted]

Determining Legislative Intent

The pleadings herein have included a considerable amount of materials regarding the intentions of the Legislature when enacting amendments to R.C. 7.12. The Court acknowledges that the legislature established the Local Government Public Notice Task Force “to study the public notice requirements of the Revised Code for the local governments and determine if the public notices are still needed and if there are other ways to fulfill those requirements, such as by the use of media or technology other than those currently mandated.”

The Daily Advocate has provided the Court with a copy of the Report of the Task Force and affidavits of participants on the task force. These materials are meant to assist the Court in understanding the intentions of the Legislature as a result of changes to R.C. 7.12.

However, when determining the intentions of the Legislature, the Court finds that affidavits and other extraneous materials are not to be considered. Instead, R.C. 1.49 requires the Court to consider the following:

§ 1.49. Determining legislative intent

If a statute is ambiguous, the court, in determining the intention of the legislature, may consider among other matters:

(A) The object sought to be attained;

(B) The circumstances under which the statute was enacted;

(C) The legislative history;

(D) The common law or former statutory provisions, including laws upon the same or similar subjects;

(E) The consequences of a particular construction;

(F) The administrative construction of the statute.

Nowhere in this list is there any instruction for the Court to consider the recollections or beliefs of individuals involved in the legislative process. Such stakeholders may earnestly recount their perceptions, but the intentions of the legislature is not to be determined from testimony of individuals, advocates, stakeholders from interest groups or others. Further, the propositions offered by these materials do not provide a clear and unequivocal legislative intent. See Ohio Civil Service Employees Ass’n v. University of Cincinnati, 3 Ohio App.3s 302, 444 N.E.2d 1353 (1982). In fact, the proponents materials only add ambiguity to the statute. Therefore, the Court does not consider the affidavit of Frank Deaner; the affidavit of Kathleen Chandler; the Report of the Task Force dated May 31, 2008; and the Ohio Newspaper Association “Frequently Asked Questions” exhibit.

Similarly, the Court does not speculate on the objects to be attained as a result of the legislation. It may appear that the legislature sought to increase the number of eligible newspapers since restrictions were removed. It may be that reduced costs of publication were sought since free papers were permitted – and government would presumably not want to increase its costs of operation. It may be that wider distribution of notices was sought in an era of consolidation within the print news industry. However, such speculative improvements are as subjective as the opinions included in the affidavits and materials offered by stakeholders in the process. Intentions will not be discerned from extraneous materials.

Instead, in determining whether The Early Bird is a newspaper of general circulation, the Court will consider the current statute and apply it to the facts and circumstances of The Early Bird. If there are any ambiguities in understanding the current statute, the Court will apply R.C. 1.49 to reach its decision, most notably via comparison of the current statute with the former statute.

Newspaper of General Circulation

For the most part, the parties agree that a “newspaper of general circulation” must meet the following criteria:

1: It is printed in the English language using standard printing methods, being not less than eight pages in the broadsheet format.

2. I contains at least twenty-five per cent editorial content, which includes, but is not limited to, local news, political information, and local sports.

3. It has been published continuously for at least three years immediately preceding legal publication by the state agency or political subdivision.

4. The publication has the ability to add subscribers to its distribution list.

5. The publication is circulated generally but United States mail or carrier delivery, in the political subdivision responsible for legal publication in the state, if legal publication is made by a state agency, by proof of the filing of a United States postal service “Statement of Ownership, Management, and Circulation (PS form 3526) with the local postmaster, or by proof of an independent audit of the publication performed, within the twelve months immediately preceding legal publication.

The Daily Advocate claims there are three aspects of R.C. 7.12 where The Early Bird does not meet the statutory requirements: (1) no distribution list; (2) no ability to add subscribers; and (3) non-compliance with the postal statement of ownership or independent audit. These requirements are found in sections 4 and 5 listed above.

I.

First, with regard to whether a “distribution list” exists, based on Exhibit E filed November 19, 2012, the Court finds the distribution list for The Early Bird as follows:

31 paid home subscriptions

26,845 unpaid home delivery

14 unpaid mail delivery

322 unpaid residential bulk distribution

165 unpaid non-residential bulk distribution

The Court disagrees with The Daily Advocate that the recipient must “invite” the newspaper to make a delivery. The current statute does not require that payment first be made by the recipient before the newspaper is delivered. Also, motor carrier delivery is now an approved delivery method. Both these statutory modifications indicate that no action or “invitation” is required by the recipient. To read into the statute the requirement that the recipient take an affirmative action to “invite” delivery of the paper would result in the Court rewriting the statute. The current statute clearly broadens the methods of delivery and allows free newspapers to be used for legal publications and notices. As such, under the new statute, a newspaper of general circulation does not include a paper whose delivery is solely by stationary, fixed location newspaper stands or boxes where the recipient would pick up the newspaper (i.e. where there is no “general circulation” in the public’s hands). The Early Bird meets the requirement to have  distribution list because of its mail and home delivery methods.

II.

The Daily Advocate claims that The Early Bird does not possess the ability to add subscribers. However, such conclusion is not supported by the record. See Exhibit D filed November 19, 2012. Admittedly, there are a small number of individuals and institutions who chose delivery by means other than motor carrier. However, the Legislature did not prescribe a minimum number of subscribers by any delivery method nor did the Legislature prescribe a particular ratio of mail recipients to motor carrier recipients. Also, Exhibit C demonstrates that The Early Bird provides a means to add (and remove) the names of recipients from time to time by whatever delivery method is used. Also, the circulation audit attached as Exhibit E at Section 5 indicates that recipients can opt out of receipt of the newspaper – though there are no statistics provided to quantify how many recipients opted out. While the paper and handwritten documents in Exhibit D show that the methods of The Early Bird are rudimentary, such methods are nonetheless sufficient. The Court finds that The Early Bird does possess the ability to add subscribers as required by the statute.

III.

Finally, the Daily Advocate claims that there has been no independent audit of the publication performed within the twelve months immediately preceding legal publication. The Court finds that the Newspaper Publisher’s Statement attached as Exhibit E meet the requirements of an independent audit as required by R.C. 7.12. However, since this Statement was not “performed, [sic] within the twelve months immediately preceding legal publication,” The Early Bird has not fulfilled this portion of the statutory requirements.

Conclusion

The arguments opposing the Prosecuting Attorney’s opinion as advanced by Civitas Media, LLC would add additional conditions and constraints onto the legislative requirements for a newspaper of general circulation. The Court rejects the arguments of Civitas Media, LLC since the goal of the Courts when construing statutes is “to give the effect to the intent of the legislature,” State v. Gwen, (2012) at {¶ 28}. The legislative intentions suggested appear contrary to the stated revisions of R.C. 7.12.

The Court declares that the weekly newspaper known as “The Early Bird” as published by Brothers Publishing Company, LLC qualifies as a newspaper of general circulation within Darke County, Ohio, but only after it files herein a Newspaper Publisher’s Statement which audits a time of 12 months of October 10, 2012 (the date of the opinion by the Prosecuting Attorney.) Thereafter, The Early Bird may receive notices for legal publication pursuant to R.C. 7.12.

IT IS THEREFORE ORDERED AND DECREED that judgment is granted in favor of Brothers Publishing Company, LLC as prayed for in its petition for declaratory judgment. “The Early Bird” is declared to be a newspaper of general circulation. “The Early Bird” may receive legal notices and publications pursuant to R.C. 7.10 after it files the Statement required herein. Costs to the Petitioner. FINE APPEALABLE ORDER.

Jonathan P. Hein, Judge