Examining publication requirements
By Shelby Morrow and Dylan Lofton, AAC Law Clerks
Many functions of government require notice to be published in a legal newspaper of general circulation. Actions ranging from property foreclosure to new county ordinances require publication of notice. The purpose of this requirement is to ensure public notices are “given wide and general publicity.” Continental Life Ins. Co. v. Mahoney, 49 S.W.2d 371, 373, 185 Ark. 748, 748 (1932).
According to the Pew Research Center, over the past 20 years, total annual Sunday newspaper circulation has dropped from around 59.5 million to 30.8 million nationally. Several Arkansas counties may no longer have a newspaper of general circulation. The Arkansas Democrat Gazette has previously reported that their daily print circulation fell 21 percent from 2000 to 2014, with around 139,600 daily print copies circulating in 2014. Now, the Arkansas Democrat Gazette’s focus has shifted to Sunday circulation, with the total Sunday press run falling to about 51,000 copies. The Arkansas Democrat Gazette has noted that most of their actual circulation is digital. Additionally, circulation of the Arkansas Democrat Gazette’s Sunday print edition varies, from urban areas receiving heavier circulation, and rural areas receiving limited copies.
Attorneys for banks in foreclosures and other clients before the Circuit Court in Arkansas must determine whether there actually is a legal newspaper providing “wide and general publicity” within the various counties and jurisdictions. Per A.C.A. § 16-13-101, in the absence of a legal newspaper, publication is required to be made by “posting five (5) written or printed notices in five (5) of the most public places in the county.”
Likewise, government officials must determine the existence or lack of existence of a legal newspaper throughout Arkansas and within the various counties and jurisdictions. Per A.C.A. § 14-14-104, in the absence of a legal newspaper, publication is to be accomplished by posting notice in three public places designated by ordinance.
What is a Legal Newspaper?
A.C.A. § 16-3-105 defines a legal newspaper eligible to publish legal notices as: “... a publication bearing a fixed title or name, published at a fixed place of business, regularly issued at fixed intervals as frequently as one (1) time each week and having a second-class mailing privilege, and being not less than four (4) pages of five (5) columns each.”
Further, the newspaper must have been published at regular intervals for at least one year and at least 50 percent of its subscribers must pay for the publication for six months. This statute also requires the newspaper’s primary function to be: “... to inform, instruct, enlighten, and entertain, and to be an intangible service to which the general public as a whole resorts for intelligence of passing events of a political, religious, commercial, or social nature, for local and general current happenings, editorial comments, announcements, miscellaneous reading matter, advertisements, and other notices.”
A newspaper’s primary function has been considered in Arkansas Attorney General Opinions considering whether particular newspapers or publications are legal newspapers. One opinion is specific on this requirement. It was asked whether a specific newspaper qualified to carry legal notices. The Attorney General interpreted A.C.A. § 16-3-105 as a list of requirements, not a balancing test. AG Opinion No. 90-134 (June 8, 1990) used the test for general circulation adopted in Continental Life Insurance Company v. Mahoney, which focuses “not necessarily [on] the number of subscribers a publication has in a certain geographic region, but rather, whether that publication regularly carries the record of events occurring of general interest to the public as a whole.”
What is a Newspaper of General Circulation?
General circulation does not apply to the number and county-wide distribution of subscribers; rather, “the primary consideration is whether the newspaper contains information of general interest.” A newspaper without subscribers is not one of general circulation. However, a newspaper with limited subscribers can be of general circulation if it is “not of special or limited character but circulated among all classes and . . . not confined to a particular class or calling in the community.”
Solutions Adopted by the General Assembly
Act 592 of 2015, Arkansas Treasure Hunt: The Arkansas Auditor of State is entrusted with the duty to return unclaimed property to the owner or legal heir. The Arkansas Treasure Hunt Service allows one to search the Auditor’s website for unclaimed property. The Unclaimed Property Act governs the disposition and return of unclaimed property. Notice and the publication of lists for abandoned or unclaimed property is addressed under A.C.A § 18-28-209. In 2015, the law was amended. Under Act 592 of 2015, which originated as HB1665, the Auditor of State is required to publish only a brief notice for abandoned property in a news
paper of general circulation in every county by Nov. 30 of the year after receiving the property (rather than the previous voluminous notice). The brief notice must contain a statement that the held property is presumed abandoned and in the Auditor of State’s custody. The notice must explain that information about the particular property can be found by consulting the Auditor of State’s website and phone number, or on notice posted at the county courthouse. These statements are required to include the Auditor of State’s internet address and office telephone number.
State Auditor Andrea Lea said her office has determined one of the most efficient ways to communicate with Arkansans and reunite them with their unclaimed property is online and through social media. Act 592 allows the office to use their advertising dollars on both traditional publication and online media. Almost everyone has a phone in their hands. They have found direct communication is the best method rather than attempting to communicate through a third party.
“With newspapers, people often have to pay to get the information. For the sake of being efficient and effective in returning unclaimed property, we want to avoid as many barriers as possible,” Lea said.
HB1665 received 31 votes in the Senate and 93 in the House before becoming Act 592.
Act 514 of 2017, Delinquent minerals: In 2017, Act 514 became law, addressing notice procedures for delinquent property taxes owed on mineral interests. Originating as SB114 and sponsored by Sen. Bart Hester and Rep. (now Senator) Kim Hammer, Act 514 requires a county collector to “prepare a list of the delinquent taxes on mineral interests.” The county collector is required to publish notice at the county courthouse and through the county website in their county. The collector is additionally required to provide the list to the Association of Arkansas Counties (AAC) before the county collector may begin collecting the delinquent taxes. The AAC is required to have a publicly accessible website “dedicated to publishing notice of delinquent taxes on mineral interest …” Upon receiving the delinquent mineral interest tax list sent by a county collector, the AAC must publish the list on their website (www.artransparency.gov) in the format described in A.C.A. § 26-36-213(a)(1)(C), within 7 days. Under Act 514, the county collector must publish notice in a newspaper of general circulation in the county or district for which the list is being published. If the county or district lacks such a newspaper, the notice must be “in the nearest newspaper having general circulation in the county or district for which the list is being published.” The notice must include the website or websites where the delinquent mineral interest tax list may be found.
“SB114 was designed to clarify and modernize notice procedures for delinquent taxes on mineral interests,” said Sen. Hester. “In an increasingly digital and online world, procedures for the publication of notice need to be updated. SB114 was a critical step in doing just that, by providing a modernized approach for Arkansas, I look forward to exploring more options for publication in future legislation.”
SB114 received 80 votes in the House and 32 votes in the Senate before becoming law.
Act 1075 of 2019, Online bidding and publication of notice for public works construction projects: Act 1075 was designed partially to address online advertisements of notices for government units intending to receive bids. Act 1075 began as SB409, sponsored by Sen. Scott Flippo, Sen. Jimmy Hickey, Jr., and Rep. Marcus Richmond. Under Act 1075, public agencies may contract with a “vendor” to provide online advertisements of notices that show a public agency’s intention to receive bids. Selected vendors must maintain on their website a clearly designated and accessible area for public notices. Additionally, vendors are required to provide a free and public view of advertisements of a notice of intention to receive bids. Vendors cannot provide these services until the public agency has complied with additional requirements under Act 1075. There are differing notice requirements for cities, counties, and towns compared to school districts. School districts face fewer, yet very similar, requirements under A.C.A. § 22-9-906.
SB409 passed the Senate with 34 votes and was approved by the House with 95 votes.
Act 954 of 2021, Transparency on publication costs by newspapers: Despite declining newspaper circulation, newspapers have increased the cost of publication of legal notices. Sponsored by Sen. Scott Flippo and Rep. Austin McCollum, SB610 became law as Act 954. In Arkansas, a publication in a newspaper required to be made by a county or municipality must include a statement identifying the county or municipality and the accompanying office responsible for the payment of the publication. Additionally, the publication must disclose the amount paid for the publication. This statement is to provide transparency, and there are specific font requirements. This information will inform the citizenry of the costs versus the benefits of publication of the particular notice by virtue of a newspaper in Arkansas.
SB610 was approved by the Senate with 34 votes and passed by the House with 85 votes.
The law for legal notice in Arkansas is evolving with recent changes by the General Assembly. Many areas of Arkansas face challenges with the current use of newspapers for publication of notice. As the world becomes increasingly digital and internet driven, further action is necessary to ensure sufficient legal notices are “given wide and general publicity” and reach all parts of our state, urban and rural.