Appeals court sides with the Advocate

Staff Report

January 25, 2014

DARKE COUNTY — The Ohio Second District Court of Appeals has ruled that newspapers of record, such as The Daily Advocate, retain the exclusive rights to publish legal notices.

This decision came after The Daily Advocate appealed a declaratory judgment issued in December 2012 by Darke County Common Pleas Judge Jonathan Hein that stated that Brother Publishing Company, LLC doing business as The Early Bird, a free, weekly publication, qualified as a “newspaper of general circulation.”

“This was an important decision for our company, but also for the community, which is better served when legals run in an established newspaper of record,” said Michael Bush, Civitas Media President and CEO.

In what court documents called a “turf war” over the right to publish legal notices, the local shopper had filed a petition for declaratory judgment to be able to enter the market.

The appeal reinforced Revised Code 7.12, which was created to protect the rights of the citizens by requiring that all public notices be placed in a newspaper of record. As a result, the case set a precedent throughout Ohio for newspapers like The Daily Advocate.

“The bottom line is, The Early Bird has not shown it is qualified to carry legal advertising according to the Court of Appeals,” said the Daily Advocate’s trial lawyer Gary Leppla. “The evidence, as submitted by the shopper, was inadequate. We believe it is simply a total market publication (or shopper) and cannot qualify as a newspaper of general circulation.”

The Daily Advocate argued in this case the law allows legal advertising to be placed only in publications that qualify as an established newspaper of record.

“The law does not qualify mass-delivered publications, which are essentially shoppers, like The Early Bird, to handle critical legal advertising,” Leppla said. “There were problems with the alleged distribution list offered by The Early Bird, there was no qualification with the U.S. Postal Service or a satisfactory alternative audit.”

Judges in the Ohio Second District Court of Appeals reversed Hein’s judgment, ruling the process by which the judgment was reached “faulty” and the evidence “lacking.”

“The appellate court’s decision is a big win for us and newspapers of record across Ohio,” said the Advocate’s Business Development Leader Christie Randall.

“We at The Daily Advocate will continue to give the same professional, dedicated service to our state and county offices in their matters of public notice.”

According to Leppla, the appellate judges looked at the legislative history of R.C. 7.12 and considered testimony from Kathleen Chandler, a former member of the Ohio House of Representatives who authored and co-sponsored original legislation on public notice, along with a report from the legislative task force.

Testimony from Frank Deaner, former executive director of the Ohio Newspaper Association, was also submitted due to his involvement with writing the legislation in cooperation with the Ohio House of Representatives and Ohio Senate.

Leppla explained that the legal advertising statute requires that a publication be paid for by subscribers, as opposed to being mass-mailed to residents in a certain market, according to the legislative history of the statute. The Court of Appeals ruled that this issue must now be considered by the trial court, Leppla said.