January 26, 2016
The phrase “newspaper of general circulation” is certainly familiar to all lawyers. It appears in almost 12,000 documents in the Statutes & Court Rules category page on Thomson Reuters Westlaw, and in just under 8,000 cases in the Cases category page on Westlaw.
This phrase has been around almost as long as the United States. The definition of this phrase in Black’s Law Dictionary indicates the earliest use of the term was in 1838. See Dunn v. Games, 8 F.Cas. 98 (C.C.D. Ohio 1838). Up until around 25 years ago, these newspapers were exclusively printed media. With the advent of the internet, the opportunity arises to expand the meaning of newspapers of general circulation. Given the changes in technology, when the bicentennial of the idea of the newspaper of general circulation comes around in a few years, maybe such newspapers will exist only in the digital realm.
Whether the internet can become a substitute for print media in this regard comes down to the sufficiency of notice on due process grounds. This standard differs according to the interest at issue. In Mullane v. Central Hanover Bank & Trust Co., the Supreme Court stated the general principal that for notice by publication: “within the limits of practicability notice must be such as is reasonably calculated to reach interested parties.” 339 U.S. 306, 318, 70 S.Ct. 652, 659 (U.S. 1950).
The Illinois Court of Appeals in a case involving the question of the sufficiency of notice in an investment trust action, noted in a footnote, “We note that in Mullane in considering the sufficiency of notice to known beneficiaries, the Court did not consider the sufficiency of website notice since Mullane preceded the Internet era.” In re Commissioner of Banks and Real Estate, 764 N.E.2d 66, 92 (Ill. App. Ct. 2001).
Here is a look at some recent developments.
Virginia bills propose to dispense with the requirement of notice published in a newspaper of general circulation by certain towns where there is no such newspaper in the locality; notice would be given on the locality’s website instead. 2016 Virginia Senate Bill No. 251, 2016 Virginia Senate Bill No. 371.
In late 2015, the South Carolina Attorney General opined that statutes requiring notice in a newspaper of general circulation cannot be extended to include online newspapers. S.C. Op.Atty.Gen. (Oct. 21, 2015) 2015 WL 6745997. The Ohio Attorney General came to a similar conclusion with respect to the notice of order of suspension of license statute, R.C. § 119.07. OH Op.Atty.Gen. (April 30, 2008) 2008 WL 1952097.
In 2015, the Georgia statute on notice of reports of unclaimed property was amended to move from publication in a newspaper of general circulation to electronic publication. Ga. Code Ann., § 44-12-215.
The New Hampshire notice of parole hearings statute was amended in 2015, substituting notice on the department of corrections internet site for notice in a newspaper of general circulation. N.H. Rev. Stat. § 651-A:11.
The Washington unclaimed property statute was amended in 2015 to include notice by online or printed version of a newspaper of general circulation. West’s RCWA 63.29.180.
In 2014 the Tennessee Valley Authority adopted a notice of hearings regulation which provides for notice by any of four suggested notice methods (publication in newspaper of general circulation, personal written notice, posting on the TVA website, or any other method reasonably calculated to reach interested persons). 18 C.F.R. § 1304.5.
The Texas Department of Transportation in 2014 amended the regulation on solicited proposals, substituting notice in the Texas Register and the department’s internet website for notice in the Texas Register and in one or more newspapers of general circulation in the state. 2014 TX REG TEXT 343557 (amending 43 TAC 27.4)
For a more in depth analysis of the issues involved, see Old principles, new technology, and the future of notice in newspapers. Lauren A. Rieders, 38 Hofstra L. Rev. 1009 (Spring 2010).