It used to be a relatively rare event when a bill remedying errors or omissions in public notice advertising was introduced. Or when legislation authorizing newspaper websites or e-editions to substitute for print was proposed. But those types of measures have proliferated in 2023, along with bills designed to fill jurisdictional holes in news deserts, which have been picking up steam for a few years now.
Georgia HB-254, which passed the legislature last week with the support of the Georgia Press Association, embodies all three trends. But its most significant element is the state’s first fee increase in about 25 years. Public notice rates in Georgia will climb by at least 50 percent, from $10 to $15 for the first notice and from $9 to $14 for additional publications. The bill was approved 166-1 in the House and unanimously in the Senate; given those vote margins, Gov. Brian Kemp is very likely to sign the bill when it reaches his desk.
The bill also set the minimum circulation standard for official newspapers — Georgia calls them “legal organs” — at 100 copies per issue. And it established an alternative process for selecting a legal organ in counties that don’t have a paper meeting that standard. Those counties would be able to select an otherwise non-qualifying newspaper to serve as their legal organ, including a free-distribution paper.
HB-254 also allows counties and municipalities to remedy text errors and tardy notices by electronically publishing a correct version of a notice within two business days of its original print publication date. The remedial notice must be posted on an official newspaper website or government website, and on the Georgia Press Association statewide public notice site. The web notice will be considered legally valid as long as local government authorities subsequently publish a correct version of the ad in their legal organ.
The Idaho legislature passed a bill last month that was similar in some respects to Georgia’s HB-254 without the fee increase. Idaho H-90 allows notices to be published on the Newspaper Association of Idaho’s (NAI) statewide website and mandates that the NAI-website notice satisfies all legal requirements as long as the original notice “appears in the next available edition of the printed newspaper or as otherwise required by law.” It also absolves government entities of failing to meet publication deadlines if their official newspaper is at fault. Gov. Brad Little signed H-90 into law on March 21.
The most surprising aspect of H-90 is that, apparently unbeknownst to everyone, the underlying statutory provision it amends has authorized “electronic publication” of notices on newspaper websites since the early days of the internet. That 1999 provision stipulates that electronic publication “shall have the same legal effect as a legal notice, advertisement or publication that is published in a newspaper.” Needless to say, the legislative intent of the provision is unclear.
In addition to Georgia and Idaho, bills that would fix public notice mistakes were introduced in Nebraska, Pennsylvania and Oklahoma. The remedial process established by Nebraska LB-513 is limited to meeting notices and applies only to mid-sized municipalities in the state. It was approved unanimously in committee. The Oklahoma bill is already dead and the Pennsylvania measure hasn’t budged since it was introduced early last month.
Many legislatures have passed laws requiring newspapers to publish notices on the web but those statutes still require print publication to be legally valid. The new “newspaper website” proposals proliferating in 2023 go further: They allow electronic publication to substitute for print. Some of these bills are expansive while others validate electronic publication only in limited circumstances.
Examples of the expansive version of newspaper-website legislation have been introduced in Nevada, New York, Maryland and Texas. All of them allow government bodies to run their notices on an official newspaper website in lieu of publication in a print edition of the paper. None have made it out of committee.
Legislation allowing newspaper websites to substitute for print editions in limited circumstances has been introduced in Kentucky, Ohio and Montana. The Ohiobill applies only to notices relating to public utility rate applications and hearings, while the one in Montana is limited to meeting notices. The Montana measure requires government bodies to post meeting notices and agendas on newspaper websites if they are “free of charge to the agency.” It has passed the House with the support of the Montana Press Association.
Kentucky HB-534 also gives the force of law to newspaper-website notices in limited circumstances. It was signed into law last month by Gov. Andy Beshear after passing both the House and Senate by wide margins. Current law allows government units in the state’s ten largest counties to publish notice on their own websites. But it also requires them to publish a brief version of the same notice in a newspaper to inform the public where the online notice can be found. HB-534 would allow government authorities in those counties to publish that brief notice on a newspaper website instead. (The bill additionally eliminates a circulation threshold in the public notice law, a provision that was added to the bill to convince the Kentucky Press Association to support it.)
In North Dakota, a bill pursued by the North Dakota Press Association authorizes government agencies to publish notices in the e-edition of an official newspaper in lieu of print. North Dakota HB-1197 was signed into law last month by Gov. Doug Burgum after passing the House unanimously and the Senate by a vote of 55-2. It’s the first bill of its kind to become law. Oregon HB-3167 too would allow e-editions to substitute for print newspapers. It also adds content standards to the public notice law, and in areas where an official newspaper has ceased publication it relaxes continuous publication requirements and allows free-circulation papers to publish notice. It was reported out of committee in the House.
Bills in Arkansas, Kansas, Rhode Island, Massachusetts and Texas would also authorize notices to be published on newspaper websites, along with other types of non-governmental alternative platforms. (The bills in Massachusetts and Rhode Island would only apply to specific towns in those states — one town in Massachusetts and two in Rhode Island.)
The most unusual measure that would move newspaper notice to an alternative media platform was Arkansas HB-1616, which was defeated last week by one vote in a House committee. It would have allowed counties and municipalities to eliminate newspaper notice, aside from delinquent tax notices, beginning in 2028. Notice posted on “an independent third party website” selected by a legislative committee would supplant it. HB-1616 replaced an earlier, more conventional bill that would have moved most newspaper notice to government websites.
Of course, Arkansas isn’t the only state to see a government website bill in 2023. Similar bills have been introduced in at least 16 states this year. None have passed in their original form but more are getting hearings this year than in previous sessions. In Arizona, SB-1006 in its original form would have given cities and towns the choice to publish notices on their websites instead of a newspaper. After an amendment limited its application to municipalities in the state’s largest county, it passed the Senate early last month by a vote of 16-13 and has been reported favorably out of two committees in the House.
Perhaps the state facing the most daunting challenge is Connecticut, where a bill that would allow municipalities to publish notices on their website in lieu of a local newspaper was reported out of a House committee last month by a 14-7 margin. More ominously, Gov. Ned Lamont’s annual budget bill includes an identical provision and also provides state agencies with the option to post notices on their own websites.
Several other recent factors will make it more difficult to ensure newspaper notice prevails in the Constitution State. First, the Connecticut court system has already moved its notices from newspapers to the Connecticut Judicial Branch website. Second, municipalities were allowed to publish notices on their own websites under an emergency order issued by the Governor during the pandemic. Finally, a recent Connecticut Appellate Court decision in a zoning case, 9 Pettipaug, LLC v. Planning & Zoning Commission of the Borough of Fenwick, ruled the tiny borough’s notice at the center of the lawsuit was invalid because it failed to demonstrate the paper had “substantial circulation” within the jurisdiction as the state’s public notice statute requires.
Fenwick is a tiny town (pop: ~52) where most residents stay only part of the year. The newspaper that published its notice had no subscribers in the borough and Fenwick failed to show that any of its residents saw the notice on the newspaper’s website, so the decision will have limited application. Still, a court ruling raising doubt about the legal efficacy of any newspaper notice is less than ideal. Small-town officials are asking questions about the dilemma and those in the state who want to move notice to government websites are already making rhetorical use of it.
“(P)ractical difficulties encountered by the defendant in meeting its obligation to publish notice in a newspaper having substantial circulation in Fenwick … do not absolve it from complying with the language of the statute,” the court ruled. “Although compliance with the ‘substantial circulation’ requirement by commissions in small boroughs may be difficult, we cannot conclude that it necessarily leads to an absurd result or is unworkable.”
The court ultimately suggested it was up to the Connecticut legislature to remedy the issues raised in the case.