Towns’ legals may not be
Staff writer
A drive by Goessel and Hillsboro to dump local newspapers and publish official notices only on city-run websites may have run into a roadblock Tuesday.
In attempting to circumvent laws regarding publication of legal notices, both cities adopted charter ordinances declaring their municipal websites to be newspapers.
But, the Record verified Tuesday, they failed to register those “newspapers” with the county clerk by July 1, as required by a law they couldn’t overturn.
KSA 28-137, not subject to home rule, states: “On or before July 1 of each year, the publisher of each newspaper that publishes any legal advertisement in this state shall file with the county clerk of the county in which the newspaper is located a card showing the newspaper’s rates for legal advertisements, which shall be effective for a period of one year from the July 1 on or before which the filing is made.”
Marion County Record, Hillsboro Star-Journal, and Peabody Gazette-Bulletin filed their rate cards before the deadline.
The Record then submitted a Kansas Open Records Act request for all other filings made by deadline and officially was informed no other filings had been made.
The Goessel and Hillsboro “newspapers” did not file and, therefore, may not be allowed to publish legal advertising for at least the next year.
Max Kautsch, a Lawrence attorney and president of the Kansas Coalition for Open Government, sees this as a concern.
“The cities’ failure to file rate cards in advance of the fiscal year that began this week,” Kautsch said, “calls into question whether they can comply with their obligations under Kansas law to publish legal notices for at least the next 12 months.
“Unlike the statutes governing the definitions of legal newspapers, which contain small inconsistencies that make them vulnerable to home rule, the statute governing the rate card is universally applicable to any ‘newspaper’ publishing legal notices.
“If the cities are ‘newspapers’ authorized to publish legals, purporting to do so without submitting the rate card could potentially invalidate any such notices.”
The two towns attempted to get rid of local newspapers after seeing a non-binding opinion of the attorney general.
The opinion indicated it might be OK for cities to declare websites to be newspapers but obliquely warned that other laws might interfere.
In Opinion 2023-005, requested by State Rep. Stephen Owen, who represents both cities, Attorney General Kris Kobach and Solicitor General Anthony Powell noted that designating a website as a newspaper might not get around all state laws.
They did not specifically list KSA 28-137. However, because it applies uniformly to all cities it is not subject to home rule by charter ordinance, which is how Goessel and Hillsboro attempted to circumvent newspaper publication.
The logic used by out-of-county law firms advising both cities was for the cities to exempt themselves from KSA 12-1651, which sets standards for official city newspapers.
That logic may be flawed in other ways.
The Kansas Constitution allows home rule only if legislation treats some cities differently than others.
The law firms contended that KSA 12-1651 could be overruled in its entirety because it applies only to second- and third-class cities. A different statute, KSA 64-101, establishes standards for first-class cities.
However, the standards for all three classes are uniform except for two extremely minor variances.
All cities are required to select newspapers of “general” circulation within their community.
First-class cities additionally are required to select newspapers published within their county, unless none are available.
Second- and third-class cities (like Hillsboro and Goessel) must select papers with at least 50% of their circulation paid for by subscribers.
“Paid” circulation is required in first-class cities, too, but a specific percentage is not cited. However, all classes of city are required to select newspapers mailed under Periodical (formerly Second) Class postal regulations, which require at least 50% paid or specifically requested circulation.
No court case has ever tested whether the Constitution’s provisions allow home rule only on specific points that differ or whether it can allow for wholesale changes, such as declaring a municipal website to be a newspaper.
Other state laws also suggest that the legislature views newspapers and municipal websites as different, allowing summaries to be published in newspapers if they point to full versions on municipal websites.
Such a rule would make no sense if the website also qualified as a newspaper.
Hillsboro city administrator Matt Stiles said he had not yet seen the new attorney general’s opinion.
“We’ll review the opinion and talk to our legal counsel,” Stiles said. “We’ll proceed as we need to.”
“We are not going to do anything illegal,” Mayor Lou Thurston said. “We’re not going to break the law.”
Despite a call to Goessel’s city office seeking comment, no return call from the mayor or city attorney was received.
Even if cities did register their websites as newspapers, problems wouldn’t end there.
KSA 12-1651 makes reference to newspapers being unable to charge different rates for legal notices than for other commercial notices they publish.
This could be interpreted to mean that municipal websites publishing legal advertising would have to accept commercial advertising.
Under the First Amendment, government cannot restrict free expression, so city websites would be unable to forbid or censor free online ads making whatever political points the advertiser wished.
The push to abandon local newspapers in favor of websites that cities pay distant companies to host and maintain ironically has come at the same time as multiple celebrated “hacks” that took down Wichita and Kansas City municipal websites and the state judicial system’s recordkeeping website.
While admitting that legal advertising is an important source of revenue for newspapers challenged by rapidly rising printing and postal rates, newspapers have argued that:
- With newspapers, cities get both print, for those who might not use the Internet, and free online access via websites with far greater reach than government sites.
- Average people discover in a newspaper legal notices that they might not know to look for online.
- With newspapers, everything is permanently archived and readily searchable from a special statewide website and at every library in the state.
- Independent newspapers are immune to tampering by unscrupulous employees who might change online notices after they are approved.
- In a century and a half, newspapers have never failed to publish because of hacking or staffing exigencies, yet municipal and state websites have failed spectacularly in the past year.
- Whatever relatively modest sums are spent on publishing legal notices often are recovered by government, as in the case of delinquent tax lists, but otherwise stay in the county, contributing to the economy and tax base.