In re Brothers Publishing Co, L.L.C.

Citation: 2014 Ohio 133Docket: 2013-CA-6

Court: Ohio Court of Appeals; January 16, 2014; Ohio; State Appellate Court

Original Court Document: View Document

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Civitas Media, LLC, operating as The Daily Advocate, appeals a declaratory judgment favoring Brothers Publishing Company, LLC, doing business as The Early Bird. Civitas argues that the trial court erred by making its decision without sufficient evidence, neglecting the historical context of R.C. 7.12, and incorrectly classifying The Early Bird as a newspaper of general circulation due to insufficient distribution evidence and lack of an independent audit. The appellate court finds that the trial court did not adhere to the proper procedures outlined in the Declaratory Judgment Act and Ohio Rules of Civil Procedure. Additionally, there is insufficient record evidence to determine if The Early Bird meets the statutory criteria under R.C. 7.12(A)(4) and (5). Ambiguities in R.C. 7.12(A)(4) further warrant consideration of legislative intent materials submitted by Civitas. Consequently, the appellate court reverses the trial court's judgment and remands for further proceedings. The case stems from a dispute over the right to publish legal notices, initiated when The Early Bird sought confirmation of its status as a newspaper of general circulation amidst existing competition from Civitas.

A mediation meeting was held on September 24, 2012, attended by representatives from Civitas, The Early Bird, the Darke County Prosecuting Attorney’s Office, the Sheriff, and the Clerk of Courts, where it was agreed a declaratory judgment action was necessary. No formal record of the mediation exists in the court's documentation. The trial court established a briefing schedule requiring interested parties to submit statements and briefs by specific deadlines in November 2012, with the possibility of submitting final pleadings before November 26, 2012. Civitas submitted a brief on November 1, 2012, including affidavits from Frank Deaner and Kathleen Chandler, arguing that amendments to R.C. 7.12 were intended to limit qualifying publications to those invited to deliver them and contending that The Early Bird did not meet these criteria as it was a free distribution product lacking proper U.S. Postmaster registration and an independent audit.

The Early Bird responded on November 19, 2012, with a brief and the publisher's affidavit, presenting evidence of subscription requests, a list of paid subscribers, and an independent audit from CAC indicating a weekly distribution of 27,377. Civitas filed a responsive brief on November 26, 2012. The trial court issued a decision on December 3, 2012, rejecting Civitas's legislative materials, affirming that The Early Bird had a distribution list and satisfied the independent audit requirement, but determined the audit did not meet the 12-month requirement prior to the declaratory judgment petition. The court concluded that The Early Bird qualified as a newspaper of general circulation in Darke County, contingent upon submitting an up-to-date audit.

Civitas appealed this decision, and in January 2013, The Early Bird's attorney submitted an unverified audit report covering July 1, 2011, to September 30, 2012, without accompanying documentation.

On May 20, 2013, the appeal was dismissed due to the absence of a final appealable order. The court noted that while a declaratory judgment action qualifies as a special proceeding under R.C. 2505.02, the trial court's order did not affect Civitas's substantial rights because it anticipated further action. The court emphasized that if The Early Bird failed to submit the audit report, Civitas would have no grounds to appeal. Conversely, if a publication report was filed, determining its sufficiency remained for the trial court. Should the trial court find the audit report insufficient, an appeal would not be necessary. An appeal could only arise from a judgment confirming the report's sufficiency.

Shortly after the dismissal, the trial court issued another decision without notifying the parties or allowing objections, simply stating that The Early Bird qualified as a newspaper of general circulation in Darke County. Civitas then appealed this decision, raising two interrelated assignments of error: that the trial court made its decision without evidentiary support and failed to adhere to proper procedures under the Declaratory Judgment Act and Ohio Rules of Civil Procedure. Civitas argued that the trial court's conclusion lacked record support and violated procedural norms.

To contextualize these issues, the document references the 2011 amendments to R.C. 7.12 regarding legal publication in newspapers, which followed recommendations from a task force established in 2006. Prior to the amendments, R.C. 7.10 required legal notices to be printed in English-language newspapers. The amended statute stipulates that legal notices must be published in newspapers of general circulation and on the state public notice website and a newspaper's website if available.

R.C. 7.12 outlines the requirements for legal publications in newspapers prior to and following the 2011 amendments. Before the amendments, the statute mandated that any legal publication in a newspaper within a municipal corporation, county, or political subdivision must be in a newspaper of general circulation, with specific provisions if fewer than two newspapers exist. A "known office of publication" was defined, and criteria for a newspaper included regular issuance, a minimum page count, and continuous publication for at least one year.

The Supreme Court of Ohio emphasized the importance of the "general circulation" requirement for providing vital information to the public. Following the amendments, R.C. 7.12 was revised to specify that legal publications must still be in a newspaper of general circulation, with updated criteria: the newspaper must be regularly issued at least weekly, printed in English, contain at least 25% editorial content, have been in continuous publication for three years, and have a mechanism to add subscribers. Additionally, proof of circulation must be provided via postal statements or independent audits.

R.C. 7.12(B) introduces a mediation process for disputes regarding whether a publication qualifies as a "newspaper of general circulation" for legal notices. A person disagreeing with such designation can request mediation from both the publisher and the relevant court. The court must appoint a mediator, as per mandatory language in the statute, despite uncertainties about whether Darke County Common Pleas Court has an operational mediation program. In this case, an informal mediation meeting was conducted, but it did not meet the statutory requirement for a court-appointed mediator.

Following unproductive mediation, The Early Bird filed for declaratory judgment, prompting the court to set a briefing schedule. Under the Declaratory Judgment Act, individuals affected by a statute can seek a declaration of their rights, and issues of fact can be tried like other civil actions. However, the trial court's handling of the case diverged from typical civil procedures, issuing a procedural history without prior input from the parties and finalizing a decision without allowing challenges to an audit statement submitted post-decision.

The Early Bird contends on appeal that Civitas waived procedural errors by not objecting to the court's briefing schedule. However, since the court set this schedule before Civitas had filed an answer, Civitas may have believed raising objections was pointless.

A party aggrieved by a tribunal's procedure should attempt to object, even if it seems futile, as established in Park Place Properties, LLC v. Bd. of Revision of Miami County. Civitas failed to object to the lack of an evidentiary hearing and thus waived error regarding this procedural issue. However, Civitas did not have the chance to contest an audit report submitted after the trial court’s decision, which was considered without prior notice to the parties. This failure to provide notice was erroneous and prejudiced Civitas's rights, necessitating a reversal and remand for the opportunity to challenge the audit report.

Civitas also contended that The Early Bird did not meet all five statutory requirements under R.C. 7.12(A)(1)-(5), primarily focusing on R.C. 7.12(A)(4) and (5). The court found the record lacking in evidence to verify compliance with these sections, as The Early Bird did not present sufficient documentation, including samples of its publication. Civitas, however, waived the compliance issues regarding R.C. 7.12(A)(1), (2), and (3) by not raising them in the trial court.

Upon review, the evidence was deemed inadequate to determine The Early Bird’s compliance with R.C. 7.12(A)(4) and (5). Civitas may request an evidentiary hearing on remand. The court overruled the First Assignment of Error concerning R.C. 7.12(A)(1), (2), and (3), but sustained it regarding R.C. 7.12(A)(4) and (5), along with the Fifth Assignment of Error, leading to a reversal and remand for further proceedings. Civitas also raised a Second Assignment of Error regarding the trial court's refusal to consider the history of R.C. 7.12.

Civitas argues that the trial court made an error by not considering the legislative history of R.C. 7.12, despite submitting affidavits from Frank Deaner and Kathleen Chandler to clarify the intent behind the statute's changes, along with a 2008 task force report on public notice requirements. The trial court stated it would only analyze the current statute and apply R.C. 1.49 if ambiguities arose but ultimately rejected the affidavits and report, suggesting it viewed R.C. 7.12 as unambiguous. 

Prior to amendments in 2011, R.C. 7.12 imposed several requirements for newspapers, including a minimum publication period of one year, a specific title, regular issuance, and second-class mailing privileges, among others. The amended statute introduced stricter criteria: a three-year continuous publication requirement, specific formatting and page number stipulations, a minimum of 25% editorial content, and enhanced distribution and circulation qualifications. Notably, it eliminated the condition that at least 50% of the distribution be paid for, while emphasizing the need for the publication to remain relevant to the public’s informational needs.

R.C. 7.12, as amended, lacks definitions for 'subscriber' and 'distribution list,' leading Civitas to argue their ambiguity. Civitas provided affidavits from Deaner and Chandler, key figures in the legislation's drafting, clarifying that a publication must maintain a distribution list with the ability to add subscribers, indicating that households must 'invite' the publication to be considered a 'newspaper of general circulation' for legal notices. Without a proper distribution list or a 'Statement of Ownership, Management, and Circulation,' the publication fails to meet the definition of a 'newspaper of general circulation.' The trial court dismissed these affidavits, finding the legislation unambiguous. 

Disagreements arose regarding the term 'subscribe.' Civitas and ONA interpret 'subscribe' as committing to pay for issues, while The Early Bird argues it simply means to express interest in receiving a publication. The court partially concurred with the trial court, noting that the statute does not mandate paid subscriptions and has removed the requirement for at least 50% paid subscriptions, focusing instead on the ability to add individuals to the distribution list upon request.

Civitas contends that the definition of 'distribution list' should not encompass various delivery methods, arguing that the legislature aimed to exclude free, total market coverage newspapers from qualifying status, as such publications do not ensure that individuals want to receive them, undermining the likelihood they will read public notices.

The term 'distribution list' is not defined by the legislature, necessitating reliance on its customary meaning, which generally involves a list of deliveries or recipients. The ambiguity in R.C. 7.12(A)(4) arises from interpreting 'distribution list' as merely a list of delivery types, which undermines the legislative intent regarding 'subscribers.' To clarify legislative intent in ambiguous statutes, R.C. 1.49 allows courts to consider various factors, including the statute's purpose, legislative history, and consequences of different interpretations. The trial court, while not initially recognizing the statute's ambiguity, implied it would not utilize certain materials (affidavits and task force reports) related to R.C. 1.49. Civitas asserts these materials are pertinent, contending that the list in R.C. 1.49 is not exhaustive, which the court agrees with. The excerpt also references case law, including Ballard v. Beverly Entertainment, which illustrates how courts examine legislative history and intent in ambiguous statutes, and Sheet Metal Workers' International Association, which highlights the importance of industry standards in interpretation.

In State v. Roberts, the Ohio Supreme Court examined the legislative intent behind R.C. 2933.82, which mandates the preservation of biological evidence related to criminal offenses. The court highlighted the "Innocence Movement" as a significant historical context influencing the law's enactment. It determined that the statute's language clearly required preservation of evidence already in the possession of government entities at the law's inception, underscoring that legislative actions are influenced by their historical backdrop.

In State v. Schlosser, the court also considered the remarks of a bill sponsor to interpret legislative intent, noting that the Ohio RICO Act was described as the most comprehensive in the nation by its sponsor, Senator Eugene Watts. Furthermore, the court addressed Sub. H.B. 101, which established a task force on public notice requirements for local governments, and noted that a nearly identical bill, H.B. 220, was introduced later but not passed by the Senate. The amendments to R.C. 7.12, enacted in 2011, were relevant to the trial court's consideration of legislative intent.

The trial court was instructed to evaluate Kathleen Chandler’s affidavit and the task force report as pertinent background information when considering the amendments to R.C. 7.12. However, Deaner’s affidavit, despite his close work with the legislature, was deemed irrelevant as it mirrored Chandler’s opinion. The court acknowledged the need for caution regarding the weight given to individual lawmakers' statements, affirming that trial courts have discretion in evaluating such evidence, referencing a precedent that points to the ambiguity surrounding legislative statements.

The Supreme Court found R.C. 7.12(A) ambiguous, contrasting it with a prior statute deemed unambiguous. Legislative history cannot contradict the clear wording of a statute. The Second Assignment of Error is sustained, indicating that the trial court erred in its conclusions. Civitas's Third Assignment of Error contends that the trial court wrongly classified The Early Bird as a newspaper of general circulation, citing a lack of an actual distribution list and insufficient evidentiary support for the claims. The court acknowledged flaws in the evidentiary record, sustaining this assignment of error.

In the Fourth Assignment of Error, Civitas argues that the trial court erred by declaring The Early Bird a newspaper of general circulation without adequate proof of USPS approval or an independent audit. The court agreed that the initial audit report did not cover the required time period but declined to address issues with a subsequent audit report, as the matter is being remanded for further proceedings. 

In conclusion, the First Assignment of Error is partially sustained; the Second, Third, and Fifth Assignments are sustained; and the Fourth Assignment is partially sustained and partially overruled as moot. The trial court's judgment is reversed, and the case is remanded for further proceedings.

The trial court did not err in disregarding an affidavit from an individual involved in the legislative process concerning the interpretation of an ambiguous statute. Legal interpretation of statutes is a question of law, not fact, meaning expert opinion is not admissible to assist the court's decision-making. Courts should presume that the legislature's intentions are clear and should first refer to the text of the statute. When ambiguity exists, R.C. 1.49 allows courts to consider legislative intent through various means, including legislative history, but such history is broad and includes documents like bill synopses and statements from lawmakers. However, courts must be cautious in attributing undue influence to individual lawmakers’ statements on specific provisions, as these may lead to ambiguous interpretations. Thus, the affidavit from House Representative Kathleen Chandler regarding legislative intent is not considered part of legislative history, reaffirming that the trial court acted correctly by not taking it into account for statutory interpretation.