Those who regularly read a newspaper often see an array of legal and other public notices often organized in columns of small type. They announce pending foreclosures of real property, public hearings for counties and cities and other entities, proposed rule changes for state agencies and publication of lawsuits and estates to be probated.
The number of notices in your local newspaper in Idaho could change dramatically if a bill proposed Rep. Britt Raybould (R-Rexburg) makes it through the legislative process.
The measure requires a single publication in a newspaper (today multiple appearances are mandated) and then directs posting online so that all notices can be viewed by the public.
According to Nathan Brown of the Post Register, neither newspapers or local governments are thrilled with Raybould’s proposal.
This change will impact many small local newspapers around Idaho. How dramatically will be a matter of debate. Some local governments would prefer purely online notices. Raybould, according to Brown, told the House State Affairs Committee that the measure is a “compromise”.
It is thorny issue for a freshman legislator to tackle. Raybould gets points for having the nerve to do so.
This is an issue bedeviling legislators around the country.
Public notice used to mean posters plastered on poles and such around the local community. They would provide rewards for providing leads for wanted criminals, announce public meetings and often competed with advertising in the same form.
Now, the discussion has turned to whether print should continue to play any role and, if posted online, where should they be posted? Some have proposed each state establish a single website for such notices. Other suggest local governments should be allowable to just post them somewhere accessible online.
I’m intrigued by the impact on related legal notices. In Idaho, if a party files a lawsuit and cannot get a defendant personally served, then a motion can be made to the court asking for publication in the appropriate newspaper. They are not meant to substitute for in-person service but provide an alternative if that is not possible.
There are a couple New York State cases that have allowed service of lawsuits by personal messenger on Facebook, noting that the individual with the account appeared to be the defendant and actively used the service. With the multitude of social media platforms, Idaho legislators and courts may be asked to approve service by Twitter, Snapchat or one of many contributors.
There are limits as to what amounts to sufficient service.
The U.S. Supreme Court in Mullane v. Central Hanover Bank & Trust Co., a 1950 case, laid out the constitutional requirements for required for legal service, specifying that personal service always is sufficient on those known:
[W]hen notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected . . . where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.
Does posting both online and in print as proposed by Rep. Raybould meet that standard? Arguably yes. A printed newspaper notice has a limited audience, primarily subscribers. An online posting may be accessible by both subscribers and non-subscribers. That should get past the “not substantially less likely to bring home notice” in that a larger audience might be reached.
This is an issue that is likely to resurface repeatedly for the next decade or so.