COURIER-POST v. County of Camden

Citations: 995 A.2d 306; 413 N.J. Super. 372Docket: DOCKET NO. A-2993-08T3

Court: New Jersey Superior Court Appellate Division; May 20, 2010; New Jersey; State Appellate Court

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The case involves the Courier-Post Newspaper, which challenged Camden County's decision to publish legal notices in The Philadelphia Inquirer at rates lower than those mandated by N.J.S.A. 35:2-1. The court addressed four main questions: 

1. The Courier-Post has standing to challenge the arrangement, as it is qualified to publish legal notices for Camden County.
2. The Philadelphia Inquirer is not considered "printed and published within the State of New Jersey" since its operations are based in Pennsylvania, despite its availability online.
3. Camden County and the Sheriff cannot publish legal notices at rates below the statutory requirements.
4. Statutory provisions barring the publication of county or sheriff legal notices in out-of-state newspapers do not violate the Commerce Clause, as states can prefer in-state businesses when acting as consumers.

The court reversed the lower court's summary judgment in favor of the defendants and remanded for further proceedings. The litigation originated in January 2007, when Camden County sought proposals for discounted advertising in newspapers.

A Request for Proposals (RFP) was issued by Camden County under N.J.S.A. 40:23-13 to obtain competitive proposals for designating official newspapers for legal advertisements. The RFP aimed to identify newspapers offering discounted advertising services. The Courier-Post did not submit a proposal, while Philadelphia Newspapers, L.L.C. proposed lower advertising rates. Consequently, Camden County appointed The Philadelphia Inquirer as the official newspaper and entered a two-year contract for publishing legal notices at the proposed rates. The Courier-Post filed an action seeking to stop Camden County from using The Philadelphia Inquirer, claiming it lacked standing because it did not submit a proposal. The litigation saw The Philadelphia Inquirer intervene, and the court denied the Courier-Post's request for temporary restraints. The Sheriff of Camden County subsequently switched the publication of real estate sale notices from the Courier-Post to The Philadelphia Inquirer, prompting further litigation. The cases were consolidated, and after discovery, the trial court ruled that the Courier-Post lacked standing and upheld The Philadelphia Inquirer's publication status due to its significant circulation in southern New Jersey. The trial court granted summary judgment to the defendants, leading to the Courier-Post's appeal. While the appeal was pending, The Philadelphia Inquirer filed for bankruptcy and was dismissed from the suit. The New Jersey Press Association was allowed to appear as amicus curiae. The standard for reviewing summary judgment motions was reiterated, emphasizing that no genuine issues of material fact were present, with the dispute resting on the application of law to the established facts.

The Courier-Post has standing to challenge Camden County and the Sheriff’s decision to place legal notices in The Philadelphia Inquirer due to its direct financial interest and qualifications to publish such notices. New Jersey courts apply liberal standing rules, allowing a litigant with a sufficient stake and likelihood of harm to pursue a claim. The Courier-Post argues it is the only qualified daily newspaper for these notices and has adversarial interests against the defendants. Defendants claim lack of standing because the Courier-Post did not respond to Camden County’s RFP; however, legal notices are exempt from statutory bidding laws. Even if participation in the RFP was required for standing, the court opts to consider the case due to significant public interest and potential violations of statutes. The document also addresses whether The Philadelphia Inquirer qualifies as "printed and published" in New Jersey to print official advertisements, noting the broad definitions under Title 35 governing legal advertisements.

N.J.S.A. 35:1-2.2 mandates that legal notices published by counties or municipalities must be in newspapers that are printed and published within New Jersey. The plaintiff argues that The Philadelphia Inquirer does not meet this requirement since it is not printed in New Jersey. The court's interpretation of the statute focuses on the legislature's intent, emphasizing that clear and unambiguous language should be enforced as written. The Philadelphia Inquirer is printed in Conshohocken, Pennsylvania, and its primary operations, including writing, editing, and news-gathering, are also based in Philadelphia. Although the newspaper has some New Jersey offices and conducts local news reporting and advertising there, the majority of its operations occur in Pennsylvania. In 2008, only 130 of its 3,589 employees worked in New Jersey. The court concludes that The Philadelphia Inquirer is not published in New Jersey as its main activities are conducted outside the state, aligning with the definition of publication as making content publicly known, which does not necessarily require printing location.

The Massachusetts Supreme Judicial Court established the "home office" concept, determining that a newspaper is published where its home office is located, specifically where it is first made available to the public. The New Jersey Supreme Court expanded on this concept, defining the place of publication as where the newspaper is initially "given to the world" or is "completely prepared for distribution." In the case of City of Plainfield, the court found that the newspaper's place of publication was Bridgewater Township, where all final production activities occurred, thus qualifying it as the home office. This principle has been adopted by other jurisdictions, asserting that a newspaper is not considered published in a location where it only has a satellite office if its principal office is elsewhere. The court indicated that typically there is only one place of publication—its home office. However, it acknowledged that a newspaper with national circulation might argue for multiple publication locations if it has editorial offices in different regions. The court specifically noted that a large metropolitan newspaper cannot qualify for legal advertisement publication in a location merely by establishing a branch office there. Consequently, The Philadelphia Inquirer does not qualify as being published in New Jersey for legal advertising purposes under Title 35.

The Philadelphia Inquirer does not qualify as a newspaper "printed and published" in Camden County under N.J.S.A. 2A:61-1, which mandates that legal notices for real estate sales be published in local newspapers. The defendants argue that the newspaper's online availability in New Jersey implies it meets this criterion. However, the court finds that online access does not equate to physical printing in New Jersey. The legal definition of publication pertains to where the newspaper is prepared and disseminated, not where it is read. Thus, both online and print readers are accessing a publication from Pennsylvania. A broad interpretation allowing any online newspaper to be deemed "published" in New Jersey would undermine the statute’s intent, which aims to ensure legal notices reach a local audience through established local newspapers. Furthermore, the defendants' actions of placing legal notices in The Philadelphia Inquirer violate N.J.S.A. 35:2-1, which stipulates specific rates for official advertising, as they have deviated from these prescribed rates.

The statute establishes specific rates for publishing official advertisements in newspapers based on their net paid circulation in New Jersey. Newspapers with a circulation of up to 2,500 copies are charged $0.25 per line, those with 2,500 to 5,000 copies are charged $0.31 per line, and newspapers exceeding 300,000 copies must charge $1.00 per line. Publishers must file an affidavit detailing their average circulation for the previous year and the rate to be charged, which cannot deviate from the established rates. The Philadelphia Inquirer, with a circulation over 300,000, would be required to charge $1.00 per line, but its rates under Camden County's agreement are lower than the statutory rate, raising compliance issues. Defendants contend that the agreement's lower rates protect taxpayers, but this interpretation conflicts with statutory language that mandates adherence to prescribed rates. The statute aims to prevent inflated advertising costs, underscoring the necessity of following the established pricing structure without revision.

The Legislature's decision to implement fixed advertising rates for public notices aims to eliminate monetary negotiations between government officials and the press, potentially reducing bias in rate-setting based on perceived favorable or unfavorable coverage. The New Jersey Press Association argues that this fixed rate structure prevents public entities from favoring certain newspapers. Although defendants suggest that decreased advertising costs should benefit taxpayers, the Legislature has historically raised rates to align with market increases. Currently, Camden County's agreement with The Philadelphia Inquirer contravenes N.J.S.A. 35:2-1 by allowing rates outside of those specified by the statute.

Defendants also claim that the statute mandating legal notices in New Jersey newspapers violates the Commerce Clause, which restricts state interference with interstate commerce. However, jurisprudence differentiates between state actions as a market participant versus a regulator. As a market participant, the state can prefer in-state businesses without violating the Commerce Clause, as illustrated by relevant case law. Therefore, the statute in question concerns the state's role as a purchaser of advertising and does not infringe upon interstate commerce regulations. 

The ruling concludes that defendants must adhere to the applicable advertising statutes moving forward, but does not require the republication of previously published notices in The Philadelphia Inquirer. The decision is reversed and remanded. The Camden County Municipal Utilities Authority is bound by these findings through its reliance on Camden County's arguments. Additionally, Gloucester County's involvement in the case has been resolved through a stipulation to publish notices in the Gloucester County Times.

Certain inserts in a newspaper, such as comics from Virginia and magazine inserts from New Jersey, are printed out of state, while the newspaper itself is printed in Pennsylvania. Under New Jersey law (N.J.S.A. 2A:61-1), a sheriff must publish notices of real estate sales in two designated newspapers: one must be both printed and published in the county where the property is located, with specifications on circulation based on local population and the existence of daily newspapers. The law also establishes publication costs at forty cents per folio for the first insertion and twenty cents for subsequent ones. The court dismisses the plaintiff's claim regarding jurisdiction due to the defendants not filing a cross-appeal, clarifying that a respondent can argue any point to uphold the trial court's decision. Additionally, the court does not address procedural arguments related to standing under the Commerce Clause raised by the New Jersey Press Association.