Tuesday, August 11, 2009

Legal Newspapers: Dinosaurs of the Digital Age

The time has come for the General Assembly of the State of Georgia to rethink the monopoly granted to legal newspapers in the 159 Georgia Counties [1]. The State of Georgia needs to create one centralized state database for all statewide legal notices (including all individual county notices) and completely eliminate county based legal advertising notices. This database should be available to the public on the internet and compatible with Boolean searches.

This article will show that the Legal Newspapers printed in 159 Georgia Counties fail to accomplish their stated purpose in the modern digital age. That is:

1) Legal Newspapers do Not Provide Effective Notice;

2) A Centralized State Electronic Database Will Provide Notice; and,

3) Legal Newspapers presently exist not to provide Notice, but to capture monopoly profits.

The fundamental goal of any legal advertisement is to provide Notice. However, the current patchwork quilt of 159 independent newspapers all printing legal advertisements on any day at any time they choose, does not provide adequate Notice in this modern digital, blackberry® driven age.

I. The Entire Purpose of Notice is “Notice.”

In an age when citizens obtain sports scores, news headings, and download songs onto their I-Pod, they find themselves locked out of the most basic legal notices affecting their lives. There is no searchable cost effective public database that presently contains legal notices.

Notice in a Civil Action is codified at OCGA Code § 9-11-4. [2] The entire purpose of that statutory scheme is to provide Notice of a legal proceeding to a defendant or an interested party. That statute requires an interested party be notified of an action within five days of the filing of an action, unless some excuse is made for due diligence. If a party cannot be located after a diligent search, OCGA 9-11-4(f)(1)(C) [summons or other service] provides for service on the defendant or interested party by publication. Publication subsequent to the court order is made as follows: "The clerk shall cause publication to be made in the paper in which the sheriff's advertisements are printed, four times within the ensuing 60 days." Id.

While a defendant residing in Atlanta might, per chance, search the Legal Organ of Fulton County, the Fulton County Daily Reporter, It is highly unlikely (absurd, actually) that a defendant residing in Atlanta would search the Legal Organ in Liberty County, Ben Hill County, Mitchell County, Toombs County or some other county hundreds of miles from Atlanta.

It is not only the distance that impacts a defendant's ability to receive Notice, but the fact that the Notices are owned and published by 159 disjointed publishing houses. Those publishing houses charge to view that information that fundamentally “public.”

In this digital age, it cannot be accepted as a matter of common sense (to be distinguished from legal sense) that actual Notice is provided by an obscure publication in some distant county that is not available and searchable on the internet.

There is no question that the legal information contained inside the publication itself is a matter of public domain. While it is not a perfect analogy, the General Assembly indicted some years ago that “public records,” should be open to the public. OCGA § 50-18-70. While Legal ads are “open,” they are not accessible and/or available to the public in any useful format.

For those of us who are required to search the legal advertisements, we know that if you don’t take a subscription to some legal newspaper in an outlying county – then when that legal paper is gone [meaning its many weeks old] it is gone. You have to either ask for an archive search or pay an additional fee for that newspaper’s online database to search an historical legal ad. The information, while public, is not accessible. It hides behind that monopolistic paid wall of the local Legal Organ.

II. A Centralized State Electronic Database Will Provide Notice

A centralized electronic state database will provide Georgians with actual Notice. The current 159 paper publications (some are electronic, but they are not centralized) in the 159 counties do not provide any centralized form of Notice for the citizens of the State of Georgia.

There are three (3) empirical reasons why a statewide database will work as opposed to the 159 paper printings. The historical experience with the GSCCCA, the centralized UCC filings and the Georgia Secretary of State’s Office, provide clear reasons why the Georgia should move to centralize all county legal advertising.

GSCCCA. The Georgia Superior Court Clerks Cooperative Authority (GSCCCA) provides online access to 123 million legal documents filed in the 159 counties in Georgia. The electronic database or GSCCCA has received over 1 billion hits since the initiation of its online searchable database. It is difficult to imagine the world as it existed prior to 1995 with regard to land records in Georgia.

With the GSCCCA, anyone at any computer terminal in Georgia with the proper passcode can access any one of the 123 million deeds, security deeds and other land instruments presently on file in Georgia.

The UCC. The Uniform Commercial Code was first published in 1952 and has been enacted by all states. It has been a long term joint project of the National Conference of Commissioners on Uniform State Laws. While Georgia did not enact the UCC until some years after its initial introduction in 1952, it was clear both from the drafting of the UCC and its implementation that a dual filing system was necessary to provide actual “Notice.” A uniform financing statement may be filed in the local county courthouse, but it may also be centrally filed in Atlanta. Thus, in the days before the internet, the wisdom of the drafters of the UCC knew that a UCC filed in some outlying distant county many hundreds of miles from the state capitol provided no Notice and no real method for determining whether a financing statement existed on a fleet of trucks in a distant county. A hand search of the same financing statement made in Atlanta would show whether the fleet of trucks in the outlying county was, in fact, subject to a prior financing agreement.

The Georgia Secretary of State. The entire e‑filing revolution associated with the Georgia Secretary of State's office shows the power of statewide centralization of records. In the early 1990s, many law firm’s had one employ designated to dial 404‑656‑2817 and reach a live person at the Georgia Secretary of State's, Corporations Division. Sometimes, if our employee ever got through on the phone, we might be able to determine the “Register Agent,” for a Corporation. When the Governor set out to revolutionize the Georgia Secretary to State's office under the "e‑revolution," the Secretary of State's databases moved online as one of the first databases in the nation. Attorneys were suddenly able to research very substantial amounts of data at the Secretary’s Office without a physical visit to Atlanta.

Notwithstanding the clear teachings of the centralization of the GSCCCA, the UCC and the Secretary of State’s Office, the General Assembly continues to allow legal advertisements in Georgia to be published in an incomprehensible maze of 159 legal publications scattered throughout the state.

III. OCGA § 9-13-142 Provides Legal Newspapers With A Monopoly that Impedes Centralization.

Legal newspapers in all 159 counties have a monopoly with respect to the publication of legal advertisements pursuant to OCGA § 9‑13‑142. [3] That statute provides that one official newspaper or official organ of the county shall be designated for the publication of sheriff sales, citations of the probate court judges, or any other advertising commonly known in terms of "official or legal advertising.”

Other than owning and maintaining a monopoly over the publication of legal information, it is clear that the newspapers provide no "service," in their delivery or dissemination of the legal advertisements. The Governor's Office of Consumer Affairs in 2009 published "[I]nformation in the official Notices [the legal advertisements] comes directly from the lenders [and the public] with no independent verification." Thus, the legal newspapers provide no additional value added other than the raw assembly of and dissemination of legal advertisements to the public.

The two recent Georgia Supreme Court decisions on the Legal Newspapers reveal fights not designed to improve service to the community or to provide a better system of Notice to the general population, but rather reveal a fight over the ownership of the monopoly to publish in a particular county. Crescent Newspapers, LP., et al. v. Dorsey, et al., 269 Ga. 41, 497 S.E.2d 360 (1998) (revealing a fight over ownership of the Legal Organ in DeKalb County) and Henry County Record, Inc. v. Community Newspapers Holding, Inc., 274 Ga. 353, 554 S.E.2d 150 (Ga. 2001). (resolving a Dispute over the qualifications to be the Legal Organ in Henry County).

IV. Conclusion

The General Assembly should consider the purpose of legal Notice and eliminate the arcane and byzantine method of Notice presently provided by a 159 profit-motivated entities that do not work together for the common good of Georgians.

A centralized searchable database will achieve the goal of providing “Actual Notice.” A centralized database will allow citizens to search Notice on the internet on a Centralize Database. And, a centralized Database will end the costly and inefficient monopoly of Legal Newspapers in Georgia.

Hugh Wood
Atlanta, GA



[1]

Georgia has 159 Counties. "By 1800, Georgia consisted of 24 counties. An explosion in the number soon followed, with 53 new counties creating during the following 27 years. In Dec. 1831, Georgia claimed authority over all Cherokee and Creek lands in Georgia. Twelve months later, the legislature designated all Cherokee lands within the state as "Cherokee County" (see map). This was a huge area that never really functioned as a county, so In Dec. 1832 the legislature created ten counties out of Cherokee County - including a much smaller county by the same name. Georgia now had a total of 89 counties.

A new era in the history of Georgia counties followed. As no Indian territory remained in Georgia, the only way to create new counties was by dividing existing ones. Organizing a new county simply required passage of an act in the General Assembly. It was an easy process, and during the decade of the 1850s, 39 new counties were created by the legislature.

By 1875, the number of counties had grown to 137, with no end in sight. To stop this explosion, a new state constitution in 1877 prohibited the legislature from creating any more counties in Georgia (see provision). For 16 years, the number of counties was frozen at 137. But state lawmakers were pressured for more. In 1904, the General Assembly proposed amending Georgia's constitution to allow 145 counties. Voters approved the change, meaning the 1905 General Assembly would have the chance to create 8 new counties. The House of Representatives created a New County Committee, which was busy the entire session considering 23 petitions to form new counties. Late in the session, legislators approved 8 new counties - the maximum allowed after the 1904 constitutional amendment. But the pressure to create new counties continued." Jackson, Ed, A Brief History of Georgia Counties, Carl Vinson institute of Government, University of Georgia (2000).

[2]

O.C.G.A. § 9-11-4. Process.
(a) Summons -- Issuance. Upon the filing of the complaint, the clerk shall forthwith issue a summons and deliver it for service. Upon request of the plaintiff, separate or additional summons shall issue against any defendants.
(b) Summons -- Form. The summons shall be signed by the clerk; contain the name of the court and county and the names of the parties; be directed to the defendant; state the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address; and state the time within which this chapter requires the defendant to appear and file appropriate defensive pleadings with the clerk of the court, and shall notify the defendant that in case of the defendant's failure to do so judgment by default will be rendered against him or her for the relief demanded in the complaint.
(c) Summons -- By whom served. Process shall be served by the sheriff of the county where the action is brought or where the defendant is found, or by such sheriff's deputy, or by the marshal or sheriff of the court, or by such official's deputy, or by any citizen of the United States specially appointed by the court for that purpose, or by someone who is not a party and is not younger than 18 years of age and has been appointed as a permanent process server by the court in which the action is brought. Where the service of process is made outside of the United States, after an order of publication, it may be served either by any citizen of the United States or by any resident of the country, territory, colony, or province who is specially appointed by the court for that purpose. When service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.
(d) Waiver of service.
(1) A defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant.
(2) Upon receipt of notice of an action in the manner provided in this subsection, the following defendants have a duty to avoid unnecessary costs of serving the summons:
(A) A corporation or association that:
(i) Is subject to service under paragraph (1) or (2) of subsection (e) of this Code section; and
(ii) Receives notice of such action by an agent other than the Secretary of State; and
(B) A natural person who:
(i) Is not a minor; and
(ii) Has not been judicially declared to be of unsound mind or incapable of conducting his or her own affairs.
(3) To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request shall:
(A) Be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer or managing or general agent or other agent authorized by appointment to receive service of process for a defendant subject to service under paragraph (1) or (2) of subsection (e) of this Code section;
(B) Be dispatched through first-class mail or other reliable means;
(C) Be accompanied by a copy of the complaint and shall identify the court in which it has been filed;
(D) Make reference to this Code section and shall inform the defendant, by means of the text prescribed in subsection (l) of this Code section, of the consequences of compliance and of failure to comply with the request;
(E) Set forth the date on which the request is sent;
(F) Allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent, or 60 days from that date if the defendant is addressed outside any judicial district of the United States; and
(G) Provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.
(4) If a defendant located within the United States that is subject to service inside or outside the state under this Code section fails to comply with a request for a waiver made by a plaintiff located within the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure is shown.
(5) A defendant that, before being served with process, returns a waiver so requested in a timely manner is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if the defendant was addressed outside any judicial district of the United States.
(6) When the plaintiff files a waiver of service with the court, the action shall proceed, except as provided in paragraph (5) of this subsection, as if a summons and complaint had been served at the time of filing the waiver, and no proof of service shall be required.
(7) The costs to be imposed on a defendant under paragraph (4) of this subsection for failure to comply with a request to waive service of summons shall include the costs subsequently incurred in effecting service, together with the costs, including a reasonable attorney's fee, of any motion required to collect the costs of service.
(e) Summons -- Personal service. Except for cases in which the defendant has waived service, the summons and complaint shall be served together. The plaintiff shall furnish the clerk of the court with such copies as are necessary. Service shall be made by delivering a copy of the summons attached to a copy of the complaint as follows:
(1) If the action is against a corporation incorporated or domesticated under the laws of this state or a foreign corporation authorized to transact business in this state, to the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof, provided that when for any reason service cannot be had in such manner, the Secretary of State shall be an agent of such corporation upon whom any process, notice, or demand may be served. Service on the Secretary of State of any such process, notice, or demand shall be made by delivering to and leaving with him or her or with any other person or persons designated by the Secretary of State to receive such service a copy of such process, notice, or demand, along with a copy of the affidavit to be submitted to the court pursuant to this Code section. The plaintiff or the plaintiff's attorney shall certify in writing to the Secretary of State that he or she has forwarded by registered mail or statutory overnight delivery such process, service, or demand to the last registered office or agent listed on the records of the Secretary of State, that service cannot be effected at such office, and that it therefore appears that the corporation has failed either to maintain a registered office or to appoint a registered agent in this state. Further, if it shall appear from such certification that there is a last known address of a known officer of the corporation outside the state, the plaintiff shall, in addition to and after such service upon the Secretary of State, mail or cause to be mailed to the known officer at the address by registered or certified mail or statutory overnight delivery a copy of the summons and a copy of the complaint. Any such service by certification to the Secretary of State shall be answerable not more than 30 days from the date the Secretary of State receives such certification;
(2) If the action is against a foreign corporation or a nonresident individual, partnership, joint-stock company, or association, doing business and having a managing or other agent, cashier, or secretary within this state, to such agent, cashier, or secretary or to an agent designated for service of process;
(3) If against a minor, to the minor, personally, and also to such minor's father, mother, guardian, or duly appointed guardian ad litem unless the minor is married, in which case service shall not be made on the minor's father, mother, or guardian;
(4) If against a person residing within this state who has been judicially declared to be of unsound mind or incapable of conducting his or her own affairs and for whom a guardian has been appointed, to the person and also to such person's guardian and, if there is no guardian appointed, then to his or her duly appointed guardian ad litem;
(5) If against a county, municipality, city, or town, to the chairman of the board of commissioners, president of the council of trustees, mayor or city manager of the city or to an agent authorized by appointment to receive service of process. If against any other public body or organization subject to an action, to the chief executive officer or clerk thereof;
(6) If the principal sum involved is less than $200.00 and if reasonable efforts have been made to obtain personal service by attempting to find some person residing at the most notorious place of abode of the defendant, then by securely attaching the service copy of the complaint in a conspicuously marked and waterproof packet to the upper part of the door of the abode and on the same day mailing by certified or registered mail or statutory overnight delivery an additional copy to the defendant at his or her last known address, if any, and making an entry of this action on the return of service; or
(7) In all other cases to the defendant personally, or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.
(f) Summons -- Other service.
(1) Service by publication.
(A) General. When the person on whom service is to be made resides outside the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he or she is a necessary or proper party to the action, the judge or clerk may grant an order that the service be made by the publication of summons, provided that when the affidavit is based on the fact that the party on whom service is to be made resides outside the state, and the present address of the party is unknown, it shall be a sufficient showing of such fact if the affiant shall state generally in the affidavit that at a previous time such person resided outside this state in a certain place (naming the place and stating the latest date known to affiant when the party so resided there); that such place is the last place in which the party resided to the knowledge of affiant; that the party no longer resides at the place; that affiant does not know the present place of residence of the party or where the party can be found; and that affiant does not know and has never been informed and has no reason to believe that the party now resides in this state; and, in such case, it shall be presumed that the party still resides and remains outside the state, and the affidavit shall be deemed to be a sufficient showing of due diligence to find the defendant. This Code section shall apply to all manner of civil actions, including those for divorce.
(B) Property. In any action which relates to, or the subject of which is, real or personal property in this state in which any defendant, corporate or otherwise, has or claims a lien or interest, actual or contingent, or in which the relief demanded consists wholly or in part of excluding such defendant from any interest therein, where the defendant resides outside the state or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of summons, the judge or clerk may make an order that the service be made by publication of summons. The service by publication shall be made in the same manner as provided in all cases of service by publication.
(C) Publication. When the court orders service by publication, the clerk shall cause the publication to be made in the paper in which sheriff's advertisements are printed, four times within the ensuing 60 days, publications to be at least seven days apart. The party obtaining the order shall, at the time of filing, deposit the cost of publication. The published notice shall contain the name of the parties plaintiff and defendant, with a caption setting forth the court, the character of the action, the date the action was filed, the date of the order for service by publication, and a notice directed and addressed to the party to be thus served, commanding him or her to file with the clerk and serve upon the plaintiff's attorney an answer within 60 days of the date of the order for service by publication and shall bear teste in the name of the judge and shall be signed by the clerk of the court. Where the residence or abiding place of the absent or nonresident party is known, the party obtaining the order shall advise the clerk thereof; and it shall be the duty of the clerk, within 15 days after filing of the order for service by publication, to enclose, direct, stamp, and mail a copy of the notice, together with a copy of the order for service by publication and complaint, if any, to the party named in the order at his or her last known address, if any, and make an entry of this action on the complaint or other pleadings filed in the case. The copy of the notice to be mailed to the nonresident shall be a duplicate of the one published in the newspaper but need not necessarily be a copy of the newspaper itself. When service by publication is ordered, personal service of a copy of the summons, complaint, and order of publication outside the state in lieu of publication shall be equivalent to serving notice by publication and to mailing when proved to the satisfaction of the judge or otherwise. The defendant shall have 30 days from the date of such personal service outside the state in which to file defensive pleadings.

[3]

OCGA § 9-13-142. Requirements For Official Organ Of Publication; How Official Organ Changed; Notice To Secretary Of State.
(a) No journal or newspaper published in this state shall be declared, made, or maintained as the official organ of any county for the publication of sheriff's sales, citations of probate court judges, or any other advertising commonly known in terms of "official or legal advertising" and required by law to be published in such county official newspaper unless the newspaper shall meet and maintain the following qualifications:
(1) "Newspaper" as used in this Code section means a printed product of multiple pages containing not greater than 75 percent advertising content in no more than one-half of its issues during the previous 12 months, excluding separate advertising supplements inserted into but separately identifiable from any regular issue or issues of the newspaper;
(2) The newspaper shall be published within the county and continuously at least weekly for a period of two years or is the direct successor of such a newspaper. Failure to publish for not more than two weeks in any calendar year shall not disqualify a newspaper otherwise qualified;
(3) For a period of two years prior to designation and thereafter, the newspaper shall have and maintain at least 75 percent paid circulation as established by an independent audit. Paid circulation shall not include newspapers that are distributed free or in connection with a service or promotion at no additional charge to the ultimate recipient. For circulation to be considered paid, the recipient of the newspaper or such recipient's employer or household must pay reasonable and adequate consideration for the newspaper. No rules of circulation of audit companies, the United States Postal Service, or accounting principles may be considered in determining paid circulation if they are inconsistent with the provisions of this subsection;
(4) Based on the published results of the 1990 United States decennial census or any future such census, the newspaper shall have and maintain at least the following paid circulation within the county for which it is designated as the legal organ newspaper:
(A) Five hundred copies per issue in counties having a population of less than 20,000;
(B) Seven hundred fifty copies per issue in counties having a population of at least 20,000 but less than 100,000; or
(C) One thousand five hundred copies per issue in counties having a population of 100,000 or greater; and
(5) For purposes of this Code section, paid circulation shall include home or mail delivery subscription sales, counter, vendor and newsrack sales, and sales to independent newspaper contract carriers for resale. Paid circulation shall not include multiple copies purchased by one entity unless the multiple copies are purchased for and distributed to the purchaser's officers, employees, or agents, or within the purchaser's household.
(b) However, in counties where no journal or newspaper meets the qualifications set forth in subsection (a) of this Code section, the official organ may be designated by the judge of the probate court, the sheriff, and the clerk of the superior court, a majority of these officers governing from among newspapers otherwise qualified to be a legal organ that meet the minimum circulation in the preceding subsection for the county, or if there is no such newspaper, then the newspaper having the greatest general paid circulation in the county.
(c) Any selection or change in the official organ of any county shall be made upon the concurrent action of the judge of the probate court, the sheriff, and the clerk of the superior court of the county or a majority of the officers. No change in the official legal organ shall be effective without the publication for four weeks of notice of the decision to make a change in the newspaper in which legal advertisements have previously been published. All changes in the official legal organ shall be made effective on January 1 unless a change has to be made where there is no other qualified newspaper.
(d) Notwithstanding the other provisions of this Code section, an official organ of any county meeting the qualifications under the statute in force at the time of its appointment and which was appointed prior to July 1, 1999, may remain the official organ of that county until a majority of the judge of the probate court, the sheriff, and the clerk of the superior court determine to appoint a new official organ for the county.
(e) During the month of December in each year, the judge of the probate court of each county shall notify the Secretary of State, on a form supplied by the Secretary of State, of the name and mailing address of the journal or newspaper currently serving as the official organ of the county. The judge of the probate court shall also likewise notify the Secretary of State of any change in the official organ of the county at the time that such change is made.
The Secretary of State shall maintain at all times a current listing of the names and addresses of all county organs and shall make such list available to any person upon request.


Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084
www.woodandmeredith.com
hwood@woodandmeredith.com
www.hughwood.blogspot.com
twitter: USALawyer_
Phone: 404-633-4100
Fax: 404-633-0068

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