LAW DAY: Make Money With Public Records, Court Listings

A July 4, 1807, notices to persons in Mercer County, Pennsylvania. (University of Pittsburgh/Wikimedia)
Derek Noehren
The Daily Record

The year is 1665 and England is experiencing its worst plague since the Black Death epidemic ravished the area over 300 years prior.

The Great Plague is thought to have killed about 15% of London’s population and forced King Charles II to remove his court and relocate from London to Oxford, where it was deemed safer.

Out of the tragedy and tumult emerged the first English-language newspaper, The Oxford Gazette, later The London Gazette. With it came the first official, published public notices.

While the general concept of public notices had existed in crude forms since the dawn of writing, the official printed public notice debuted in 1665. Public notices have included everything from wanted posters seeking the men who were involved in Abraham Lincoln’s assassination to construction bids. They serve a multitude of purposes from government transparency to informing the public.

In 1789, the Acts of the First Session of the Congress was passed in the United States, requiring all bills, orders, resolutions and congressional votes to be published in at least three publicly available newspapers.

Public notices have survived all these years because they are fundamental to the ideals of our society.

Over time, standards have been developed. While there’s still a variety in the way that different organizations format notices, in general they contain the same pieces of information.

The Public Notice Resource Center lists four defining characteristics that mark a valid public notice: 1) the notice must be published from an independent party, 2) the publication must be archivable, 3) the publication must be accessible, and 4) the publication must be verifiable. If any one of these elements is absent, the public loses and the notice itself may be challenged.

As to their importance, notices are and have been crucial in informing the public, while also serving as a means for open government, which is a pillar of the rule of law.

Newspapers help to keep government accountable by relaying the notices to the public.

“Newspapers are the independent publisher the public needs to ensure official notices actually see the light of day,” PRNC said in a post on its website.

The idea of such transparency goes back to the Declaration of Independence when the founding fathers included in it abuse at the hands of British government workers, government power and government bureaucracy.

One of the major grievances of the American Revolution was characterized by the slogan, no taxation without representation.

The founding fathers believed a strong free press would serve to keep government in check, evident by this quote from Thomas Jefferson:

“No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press.”

Today, most public notices are generated at the state and local level. Government agencies in Nebraska typically have one or more official newspaper, depending on the geography they cover.

Some states, however, are now questioning the value of notices in an era where information can be shared online — even as news outlets and advocates push back and stress the importance of notices.

This year, legislators in 10 states introduced bills that would move all or a significant percentage of notice from newspapers to government websites.

In Michigan, for example, the now former Republican Michigan House Speaker Lee Chatfield led the charge of a legislative package sponsored by his GOP colleague, Rep. Steven Johnson.  Ultimately, the bill did not succeed, but is evidence of the divide.

Jeremy Lipschultz is a communications professor at the University of Nebraska at Omaha who has taught for the last 32 years. He said governments that want to replace traditional publishers have to be aware of the resources required to do the job correctly.

“My gut feeling is that if a government can do it well, then more power to them,” Lipschultz said. “What I often find is folks particularly in smaller communities have limited resources and time.”

Lipschultz runs the UNO Social Media Lab, which works with clients on developing a social media presence on sites like Facebook.

“One of the things we find is sometimes they don’t have the time and resources to devote to it,” Lipschultz said. “The biggest concern that I could imagine from government taking (distributing notices) on is that they don’t have the ability to do it well.”

Max Kautsch is an attorney who works the legal hotline for both the Nebraska and Kansas press and broadcasters associations. He said that, even if government were up to the task, putting notices exclusively on government sites isn’t true to their purpose.

“This is an access issue that I think is really important,” Kautsch said. “A lot of people use the internet every day and can’t imagine life without it, and I’m certainly one of those people. But the fact of the matter is that’s not a reality for everyone.”

One founding principle of a public notice is information being easily accessible so the public can make well-informed decisions.

“How are the people most likely to see the notice? That’s the question,” Kautsch said. “Is it appropriate to require everyone to have internet? The fact of the matter is that it’s not a reality for everybody in this country. In order for legal notices to be effective, it has to be delivered and received by the people that need to get it.”

It’s not realistic for online-only notices to fulfill the same goals.

“Until some true critical mass of folks in this country are able to routinely access the internet, I just think it’s a nonstarter,” he said.

This rings especially true in states like Nebraska that have a higher percentage of residents living in rural areas where broadband internet may not be reliable.

According to a survey conducted earlier this by the Pew Research Center, 7% of U.S. adults are not online. The number rises to 10% when talking about people who live in rural areas and jumps to 25% among people age 65 or older. According to a 2019 census report, 35% of Nebraskans age 65 or older live in rural areas. Over one-third of Nebraska’s 1.9 million residents live in rural areas.

“It’s a convenience thing, it’s a judicial economy thing and it’s a constitutional thing,” Kautsch said. “You’re talking about state statutes that need to be generally applicable to everyone. You have to be able to communicate with the folks that need to be communicated with and a lot of times those folks aren’t going to have the internet. It’s just not realistic to believe that these notices are going to be effective.”

That said, technology continues to progress, and more and more Americans living rurally are gaining access or more reliable access to the internet, which may change the argument.

Many newspapers now publish their notices online, whether on their own websites or through an association. The Daily Record, for instance, has notices for the City of Omaha, Douglas County and several other government entities posted each day on its website so the public can easily access them, in addition to finding them in print.

Lipschultz said access to broadband internet has expanded in Nebraska. People also can access the internet via smartphones, providing another pathway to digital publications.

 “I think in places where people have access to mobile phone networks you’ve seen expanded proliferation of these networks,” Lipschultz said. “There are certainly dead spots out there and so that can be a concern, particularly when you get outside of town, that can be an issue.”

One argument for moving notices to government websites is saving on cost, but Kautsch sees potential pitfalls.

“Residents in these counties have had decades, or in some instances over a century of getting information from the paper. How is the government going to be able to make sure they get as much traffic on government websites as the community newspapers? It’s just not realistic. It’s just not,” he said. “You would be requiring individuals to change their whole way of information gathering.”

In Nebraska specifically, costs are also controlled by state statutes that establish the rate for notices that is set by legislators. Many notices that are required by law only result in a nominal fee.

Kautsch laid out a hypothetical situation that could occur if notices moved to an online-only system.

“You’re going to get served in a domestic case and — unless you check the city website every day to know when your hearing is — you won’t know about it. If you don’t go to your hearing, then you’ll get your parental rights terminated, something like that. That cannot be. That goes too far, and it is not solving the problem,” he said.

Disrupting access to timely public notices might also risk having fewer bidders for major projects done at the taxpayer expense or the enactment of laws and regulations going unnoticed by those who are expected to be in compliance.

Wherever public notices are headed in the future, their origin story and purpose should be remembered.

“You have to strike a balance,” Kautsch said. “The great thing about journalism, starting all the way back to pamphleteering and ‘Give me liberty or give me death’ there’s a tradition that people are going to look in the newspaper.”

Kautsch said that notices have existed in their present form for more than 200 years for a reason, and changes need to consider the risk of disenfranchising someone.

“How could you have a transition where for over 200 years people have looked in the newspaper for this and now you’re going to try and train a whole generation to look at government websites,” Kautsch said. “That’s too narrowly tailored; it’s too restrictive.”


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