Opinion
February 14, 2008
Frank Volpintesta Corporation Counsel
Bernard R. Vash First Assistant
Lorette Pionke Senior Assistant
Christine Gabron Senior Assistant
J. B. Van Hollen Wisconsin Attorney General 114 East, State Capitol Madison 53702
Re: Opinion Request Re: Publication of Legal Notices.
Dear Attorney General Van Hollen:
Kenosha County submits the following questions for opinions pertaining to the publication of legal notices by the county:
1. Must the county designate an official newspaper?
2. Must the county seek bids for the publication of legal notices and if so must the award go to the lowest bidder?
3. In lieu of bidding the publication of its proceedings, may the county print its own proceedings or in the alternative post them to its official web site?
4. In lieu of "publication in a newspaper" or posting, may the county post its legal notices on its official web site?
DESIGNATION OF OFFICIAL NEWSPAPER
With respect to designating an official newspaper, it is the opinion of this office that there is no requirement that the county designate an official newspaper. Unlike the statutory requirements of Wisconsin Statutes § 985.06 as it pertain to cities, we find no such mandate in the state statutes that would pertain to county government. Furthermore we would reference Attorney General Opinion 60 Attorney General 95 which states at page 96:
It should first be pointed out that ch. 985, Stats., does not require that your county designate any newspaper as its official newspaper [emphasis added].
BIDDING REQUIREMENT
With respect to bidding the publication of legal notices, we find no state statute that mandates that the county bid the publication of legal notices or for that matter the proceedings of the County, Board as required in Wis. Stats. § 59.14 (2) other than the publication of the proceedings of the county board in book form once a year as called for in Wisconsin Statutes § 59.14(3) . These services, in our opinion, are professional services not subject to any bidding requirement. In our opinion, the criteria for choosing where to publish and how to seek a provider for these publications is a policy decision for the County Board. If an RFP is sought, we find no obligation to award to the lowest bidder and we would opine that considerations other than cost can be taken into consideration, such as circulation, frequency of publication, and the likelihood of notice being given to persons to whom the notices are intended to reach.
§ 59.14 (2) The board shall, by ordinance or resolution, provide for publication in one or more newspapers in the county as a class 1 notice, under ch. 985, a certified copy of all its proceedings had at any meeting, regular or special; said publication to be completed within 60 days after the adjournment of each session.
§ 59.14 (3) The board may at any meeting, regular or special, provide by resolution for the publication in pamphlet form by the lowest and best bidder therefor, of a sufficient and designated number of copies of its duly certified proceedings, for general distribution.
IN-HOUSE ANNUAL PUBLICATION OF PROCEEDINGS
With respect to the publication of the county board proceedings in book form as called for in Wisconsin Statutes § 59.14(3) , we read that statute as requiring bidding only if the publication in book form is done by an entity other than the county. We find no prohibition as to the county printing and binding its own booklet of county board proceedings on county printers and by county personnel. It is our opinion that there is no set number of booklets that are required to be printed and that, with the computer technology that exists today, these booklets containing the annual proceedings of the county board can be printed and bound in-house in whatever number are needed and or on an "as needed" basis or in the alternative printed or posted to the county's official website where any individual can print the annual proceedings of the county board booklet either in whole or in part through their home computer.
SUFFICIENCY OF INTERNET POSTING OF LEGAL NOTICES
Lastly, for the following reasons it is the opinion of this office that posting legal notices to its official web site will satisfy the statutory requirements pertaining to the publication of legal notices. In this regard, our analysis begins with the requirements of the state statutes as they relate to the publication of legal notices. For purposes of this analysis the following state statutes are pertinent:
1. Wisconsin Statutes § 985.01 Definitions.
(2) "Legal notice" means every notice required by law or by order of a court to be published in a newspaper Or other publication , except notices required by private and local laws to be published in newspapers, and includes all of the following:
(a) Every publication of laws, ordinances, resolutions, financial statements, budgets and proceedings intended to give notice in an area.
(b) Every notice and certificate of election, facsimile ballot, referenda, notice of public hearing before a governmental body, and notice of meetings of private and public bodies required by law.
(c) Every summons, order, citation, notice of sale or other notice that is intended to inform a person that the person may or shall do an act or exercise a right within a designated period or upon or by a designated date.
(4) "Proceedings", when published in newspapers, mean the substance of every official action taken by a local governing body at any meeting, regular or special.
(5) A newspaper is "published" at the place from which its mailing permit is issued, except that if the place where the newspaper has its major concentration of circulation has no primary post office, then at the place it shall designate as its place of publication in the affidavit required by s. 985.03 (2), but no newspaper shall have more than one place of publication during the same period of time. [Emphasis added]
2. 985.02. Method of notification.
(1) Except as otherwise provided by law, a legal notice shall be published in a newspaper likely to give notice in the area or to the person affected . Whenever the law requires publication in a newspaper published in a designated municipality or area and no newspaper is published therein publication shall be made in a newspaper likely to give notice. [Emphasis added]
3. 985.03. Qualifications of newspapers.
(1) (a) No publisher of any newspaper in this state shall be awarded or be entitled to any compensation or fee for the publishing of any legal notice unless, for at least 2 of the 5 years immediately before the date of the notice publication, the newspaper has been published regularly and continuously in the city, village or town where published, and has had a bona fide paid circulation :
1. That has constituted 50% or more of its circulation; and,
2. That has had actual subscribers at each publication of not less than 1,000 copies in 1st and 2nd class cities, or 300 copies if in 3rd and 4th class cities, villages or towns.
(b) Suspension of publication resulting from the mobilization of troops being called to active duty with the armed forces, strike, lockout or damage, or destruction due to war, fire or act of God, shall not count as an interval in publication.
(bm) A period of disqualification not to exceed 2 years due only to the place of publication shall not count as an interval in publication.
(c) A newspaper , under this chapter, is a publication appearing at regular intervals and at least once a week , containing reports of happenings of recent occurrence of a varied character , such as political, social, moral and religious subjects, designed to inform the general reader . The definition includes a daily newspaper published in a county having a population of 500,000 or more, devoted principally to business news and publishing of records, which has been designated by the courts of record of the county for publication of legal notices for a period of 6 months or more. [Emphasis added]
Unless technical terms and definitions are to control the general rule is that statutory words are to have their common and generally accepted definition. In this regard, we would look to the commonly accepted definition for the following words:
Publish: To make or effect a publication. To give publicity. [BALLENTINE'S LAW DICTIONARY]
Publish: 1a. to declare publicly: make generally known: disclose, circulate. . . . b. to proclaim officially: promulgate. . . . c. to make public announcement. . . . d. publicize: to give publication [Webster's Third New International Dictionary]
Publication: A newspaper or magazine; a book. Dissemination of information by notice given the public. . . . [BALLENTINE'S LAW DICTIONARY]
Publication: 1. Communication [as of news or information] to the public: public announcement: proclamation:. . . . legal notification. 2a: the act or process of issuing copies . . . for general distribution to the public. . . . [Webster's Third New International Dictionary]
Newspaper: A publication appearing at regular, or almost regular, intervals at short periods of time, as daily or weekly, usually in sheet form, and containing news, that is, reports of happenings of recent occurrence of a varied character, such as political, social, moral, religious, and other subjects of a similar nature, local or foreign, intended for the information of the general reader. [BALLENTINE'S LAW DICTIONARY]
Newspaper: A publication, usually in sheet form, intended for general circulation, and published regularly at short intervals, containing intelligence of current events and news of general interest. [Blacks Law Dictionary, Fourth Edition]
Does an Internet Site Meet the Definition of a "Newspaper"?
HERNANDEZ v. ALCORTA, 45 V.I. 305 (2003) is a recent case that stands for the proposition that "publication" on the internet is an acceptable form of giving notice. In that case the court summary stated:
Plaintiff entered into an agreement with the owners' agent to use equipment to raze damaged buildings and remove debris at the condominium complex. Plaintiff later filed an action to recover money that was owed to him for the clean-up work. Plaintiff moved to serve the owners by publication, stating that, after a diligent search, they could not be located in the Virgin Islands. Plaintiff was given leave to serve the owners by publication in a newspaper of general circulation. Plaintiff provided an affidavit stating that the summons was published for four consecutive weeks in a newspaper that was published solely on the Internet . After the owners failed to plead to the complaint, plaintiff moved to have their default entered. In granting the motion, the court found merit to plaintiff's argument that a notice printed on paper was not inherently more likely to reach the intended recipient than one published on the Internet. The Internet newspaper possessed numerous attributes that made it a desirable vehicle for alerting defendants to cases pending against them. Accordingly, the court held that the Internet newspaper was an appropriate means of serving the owners by publication. [Emphasis added]
In fact, if one views the official website for the State of Wisconsin and its link to "Government" and then its link to "Legislature" there is a link to "Legal Notices" which takes the individual to legal notices at the Capital Times web site http://www.madison.com/marketplace/. Many local municipality web sites with legal notices can also be accessed through the state's own web site.
If the elements of the definition of a "newspaper" are dissemination of news or to give notice, then it is submitted that internet sites fit the definition. It is recognized that newspapers today are 1) not always in sheet form and 2) that if sheet form is desired, it can be accomplished by hitting the "print" button. It would be disingenuous for a news organization to suggest that a website does not fit that definition when in fact all such major news organizations have, in fact, their own web sites that do just that, ie., disseminate news and give notice to the public. In fact the Wisconsin Newspaper Association web site at https://wisconsin.arcasearch.com/us/wi/?paper=uswi is devoted to the dissemination of legal notices for the State of Wisconsin and must therefore be indicative of their acceptance of the fact that the internet can be and is in fact used as a vehicle for providing legal notice. Other sites such as Legalnotice.org are more ambitious and attempt to provide a forum for posting legal notices on a national scale.
The official county web site for Kenosha County is located at:http://www.co.kenosha.wi.us/ with its legal notices posted at http://www.co.kenosha.wi.us/news releases.phtml. The Legal Notices and Press Release page is a work in progress and is currently not operational but can serve as a template of what is going to be available on the web site.
If an Internet Site can be a "Newspaper," Is It a "Qualified" Newspaper?
If one can accept the fact that an internet site can be classified as a "newspaper" in the generic sense of the word, that is, a public communication intended to put people on notice or to disseminate information at regular intervals, then the question remains as to whether it is a "qualified" newspaper as called for in Wisconsin Statutes § 985.03 . In other words:
1. has this site been published regularly and continuously for at least 2 of the 5 years immediately before the date of the notice publication, and
2. has it published at regular intervals and at least once a week , and
3. does it contain reports of happenings of recent occurrence of a varied character , such as political, social, moral and religious subjects, designed to inform the general reader , and
4. does this site have a bona fide paid circulation of 50% of its readership;
5. does this site have 300 actual subscribers for cities, villages and towns of the 3rd and 4th class, and
With respect to qualifications 1 and 2 above, the official County web site has "published," as this word is defined above, regularly and continuously at regular intervals evinced by daily updates since 1997.
Furthermore, with respect to qualification number 3 above, this site, in addition to posting news of county government, links to such newspapers as the Kenosha News and the Milwaukee Journal-Sentinel as well as to a multitude of other general interest web sites which also contain a broader spectrum of news "designed to report happenings of recent occurrences of a varied character. . . designed to inform the general reader." Furthermore, the on-line newspapers can themselves link to the Kenosha County legal notices web site.
As to qualifications 4 and 5 above pertaining to a paid circulation of 50% of its readership and 300 actual subscribers we would note that the cost and upkeep of this site is paid for through the county property tax levy. As to the requirement of 300 actual subscribers for cities of the 3rd and 4th class, the law is ambiguous in that it is not clear as to whether that pertains to a city's publication of legal notices or to a county which has a 3rd or 4th class city located within that county. Also, are we to assume that if a county had both a 3rd and a 1st class city that the larger number applies?
While, it could charge a subscription for access to its posted legal notices on this site, the County provides this service free of charge because the taxpayer subscriber has in fact already paid for access through the property tax levy. The County obviously has more than 300 taxpayers contributing to the cost and upkeep of this site. Furthermore, while the County does not currently track or report the number of "hits" to this site it will in the future and it is submitted that more than 50% of its readership are County taxpayers paying for this site through their property tax.
Realizing that the use of the word "subscribers" in Wis. Stats. § 985.03 may be problematic, we are of the opinion that any objection to the validity and legality of internet posting based upon the argument that the paid "subscriber" criteria for a qualified newspaper is not met can in fact be complied with by offering a paid subscription service to the public for the convenience of having direct e-mail of notices to them for a fee.
A second alternative would be to simply pay for an advertisement of the web site as the place to view public notices in an otherwise already qualified newspaper. By way of an analogy, the advertisement by reference is already provided for with respect to the printing of lengthy ordinances or codes by Wisconsin Statutes § 61.0103. This statute states that there can be a legal notice that an ordinance has been passed and is available for viewing in the office of the County Clerk.
66.0103. Code of ordinances.
(1) The governing body of a city, village, town or county may authorize the preparation of a code of some or all of its general ordinances. The code maybe enacted by an ordinance that incorporates the code by reference. A copy of the code shall be available for public inspection not less than 2 weeks before it is enacted. After the code is enacted, a copy shall be maintained and available for public inspection in the office of the city, village, town or county clerk.
(2) Publication of a code enacted under sub. (1), in book or pamphlet form, meets the publication requirements of ss. 59.14, 60.80, 61.50 (1)and 62.11 (4) (a)
Facts Supporting Internet Posting of Legal Notices
Other facts to supplement the above position appear in the United States Census Bureau Special Study on Computer and Internet Use in the United States: 2003 [a copy of which is attached] [at page 5] which reports that approximately 62% to 67% of Wisconsin households have a computer and approximately 55% to 60% of all Wisconsin households have internet access. On a national scale, that report indicates [ page 13 ] that over 40% used the internet for news in 2003 and that almost 33% used the internet for information on government services. Almost 30% of individuals age 65 or older had access [ page 2] The United States Department of Commerce for 2001 atwww.ntia.doc.gov/ntiahome/dn/nationonline 020502.htm reported 50.2% of Wisconsin households had internet access. These surveys along with their degree of accuracy strongly evince a conclusion that more households and businesses in Kenosha County, which has a population of over 150,000, [and which is in the process of installing "broadband" throughout the entire county] have access — in fact instant access to these legal notices posted on the internet than subscribe to either of the two Kenosha area newspapers certified to publish legal notices. The Kenosha News has a daily circulation of 28,683 and a Sunday circulation of 31, 587 and the Kenosha Labor Paper [which is published weekly and which has outbid the Kenosha News for publication of legal notices] has a circulation of 10,312. These figures are from June, 2006. Furthermore, internet access is available to those who do not have home access by going to the public library. The method of notification prescribed in Wisconsin Statute § 985.02, which is to publish in a newspaper likely to give notice in the area or to the person affected , we would submit, is best adhered to by internet posting. In fact, notice is given to the entire world! Since 1990 total morning and evening circulation has steadily declined[http://web.naa.org/info/facts04/circulation-daily.html] while, in 2004, more than 1,500 daily newspapers in North America had sites on the World Wide Web [ http://web.naa.org/info/facts04/highlights.html ].
http://www.census.gov/prod/2005pubs/p23-208.pdf
Additional benefits of posting legal notices on the County's web site include instantaneous posting allowing for longer deadlines for the submission of notices, instantaneous corrections, the ability to archive notices and perform cumulative searches, the ability to provide more information such as posting not only the text of a proposed zoning amendment but also a link to the actual zoning map and the posting of not only the heading of a resolution that will appear on an agenda but also the actual resolution in its entirety and the actual posting dates of the first and last posting as well as an affidavit of posting utilizing a certified digital signature. The other obvious benefit is the savings to the taxpayer in publication costs.
Your assistance in regard to this issue is appreciated.
Sincerely,
Frank Volpintesta Corporation Counsel
Attachment: Census Bureau Report on Internet Use: 2003 at http://www. census. gov/prod/2005pubs/p23-208. pdf
[SEE ATTACHMENT IN ORIGINAL]
J.B. VAN HOLLEN ATTORNEY GENERAL Raymond P. Taffora Deputy Attorney General 114 East, State Capitol P.O. Box 7857 Madison, WI 53707-7857 608/266-1221 TTY 1-800-947-3529
Mr. Frank Volpintesta Corporation Counsel Kenosha County 912 — 56th Street Kenosha, WI 53140-3747
Dear Mr. Volpintesta:
In your revised letter dated October 18, 2007, you request an opinion concerning four questions:
1. Must the county designate an official newspaper?
In my opinion, the answer is no.
2. Must the county seek bids for the publication of legal notices and if so must the award go to the lowest bidder?
In my opinion, a county is not statutorily required to seek bids for the publication of legal notices.
3. In lieu of bidding the publication of its own proceedings [as provided in Wis. Stat. § 59.14(3)], may the county print its own proceedings or in the alternative post them to its official web site?
In my opinion, even if a county does not competitively bid the publication of its own proceedings as provided in Wis. Stat. § 59.14(3), it may print its own proceedings or post them on its web site.
4. In lieu of publication in a printed newspaper or posting on a physical bulletin board, may the county post its legal notices on its official web site?
In my opinion, the answer is no because placing a legal notice on the county's web site is not newspaper publication, is not another form of publication, and does not constitute posting in a public place.
Wisconsin Stat. § 59.14 provides:
Publication of ordinances and proceedings. (1) Whenever a board enacts an ordinance under this chapter the clerk shall immediately publish it as a class 1 notice, under ch. 985; and the clerk shall procure and distribute copies of the ordinance to the several town clerks, who shall file it in their respective offices.
(2) The board shall, by ordinance or resolution, provide for publication in one or more newspapers in the county as a class 1 notice, under ch. 985, a certified copy of all its proceedings had at any meeting, regular or special; said publication to be completed within 60 days after the adjournment of each session.
(3) The board may at any meeting, regular or special, provide by resolution for the publication in pamphlet form by the lowest and best bidder therefor, of a sufficient and designated number of copies of its duly certified proceedings, for general distribution.
(4) The board may order public notices relating to tax redemption and other affairs of the county to be published in a newspaper printed in any other than the English language, to be designated in such order, whenever the board considers it necessary for the better information of the inhabitants of the county, and it shall appear from the last previous census that one-fourth or more of the adult population of the county is of a nationality not speaking the English language, and that there shall have been a newspaper published in the county continuously for one year or more in the language spoken by that nationality; but all of the notices shall also be published in a newspaper published in the English language as provided by law. The compensation for all of the publications shall be paid by the county ordering the publications, and shall be the same as that prescribed by law for publication in the English language; and no extra charge shall be allowed for translation in any case. No irregularity, mistake or informality in any such publication shall affect the validity or regularity of any tax redemptions or other legal proceedings.
Wisconsin Stat. § 985.01 provides in part:
Definitions. As used in this chapter, unless the context requires otherwise:
. . . .
(2) "Legal notice" means every notice required by law or by order of a court to be published in a newspaper or other publication. . . .
. . . .
(5) A newspaper is "published" at the place from which its mailing permit is issued, except that if the place where the newspaper has its major concentration of circulation has no primary post office, then at the place it shall designate as its place of publication in the affidavit required by s. 985.03(2), but no newspaper shall have more than one place of publication during the same period of time.
Wisconsin Stat. § 985.02 provides in part:
Method of notification. (1) Except as otherwise provided by law, a legal notice shall be published in a newspaper likely to give notice in the area or to the person affected. Whenever the law requires publication in a newspaper published in a designated municipality or area and no newspaper is published therein publication shall be made in a newspaper likely to give notice.
(2) If the governing body of a municipality elects to post under s. 985.05(1) it shall post in the following manner:
(a) The notice must be posted in at least 3 public places likely to give notice to persons affected.
(b) The notice posted before the act or event requiring notice shall be posted no later than the time specified for the first newspaper publication.
(c) The notice posted after the act or event requiring notice shall be posted within one week after the act or event. Actions of governing bodies posted after the act or event shall be effective upon posting.
Wisconsin Stat. § 985.03 provides:
Qualifications of newspapers. (l)(a) No publisher of any newspaper in this state shall be awarded or be entitled to any compensation or fee for the publishing of any legal notice unless, for at least 2 of the 5 years immediately before the date of the notice publication, the newspaper has been published regularly and continuously in the city, village or town where published, and has had a bona fide paid circulation:
1. That has constituted 50% or more of its circulation; and,
2. That has had actual subscribers at each publication of not less than 1,000 copies in 1st and 2nd class cities, or 300 copies if in 3rd and 4th class cities, villages or towns.
(c) A newspaper, under this chapter, is a publication appearing at regular intervals and at least once a week, containing reports of happenings of recent occurrence of a varied character, such as political, social, moral and religious subjects, designed to inform the general reader. The definition includes a daily newspaper published in a county having a population of 500,000 or more, devoted principally to business news and publishing of records, which has been designated by the courts of record of the county for publication of legal notices for a period of 6 months or more.
Wisconsin Stat. § 985.05 provides in part:
Official municipal newspapers. (1) The governing body of every municipality not required to have an official newspaper may designate a newspaper published or having general circulation in the municipality and eligible under s. 985.03 as its official newspaper or utilize the same for specific notices. The governing body of such municipality may, in lieu of newspaper publication, direct other form of publication or posting under s. 985.02(2). Other publication or posting, however, shall not be substituted for newspaper publication in proceedings relating to: tax redemptions or sales of land acquired by the county or city authorized to act under s. 74.87 for delinquent taxes, charges or assessments; civil annexations, detachments, consolidations or incorporations under chs. 59 to 66; or legal notices directed to specific individuals. Posting may not be substituted for publication in school board elections conducted under s. 120.06 or publication under s. 60.80(2) of town ordinances imposing forfeitures. If an eligible newspaper is published in the municipality, other publication or posting shall not be substituted for newspaper publication under s. 61.32 or 61.50.
(2) When any municipality has designated an official newspaper, all legal notices published in a newspaper by such municipality shall be published in such newspaper unless otherwise specifically required by law.
Wisconsin Stat. § 985.065 provides in part:
Publication and printing; counties with population of 250,000 or more. (2)(a) In counties having a population of 250,000 or more, the county board of supervisors, at its annual meeting shall direct the county clerk to invite proposals from the English newspapers published daily in said county, for the publication and printing of the proceedings of said board. . . .
. . . .
(c) The said board may by resolution suspend the publication of proceedings in newspapers and provide for the printing thereof in pamphlet form until the further action of the board in relation thereto. Separate bids may be called for if so ordered by said board, from printers in the county, for the printing of the proceedings of said county board in pamphlet form in such quantities as shall be determined by said board.
(f) The said board of supervisors may, in lieu of the foregoing provisions, provide by ordinance, a method of printing and publication of its proceedings and notices, and the method of obtaining bids and contracts therefor.
Your first question is whether your county must designate an official newspaper.
Kenosha County has a population of less than 250,000. Wisconsin Blue Book (2007-08) at 768. Kenosha County therefore is not required to designate an official newspaper or newspapers under Wis. Stat. § 985.065(2)(a).
There is no other statute requiring that a county designate an official newspaper. See 62 Op. Att'y Gen. 81, 84 (1973): "Chapter 985, Wis. Stats., which relates to the publication of legal notices, does not require that your county designate a newspaper as its official newspaper." Accord 60 Op. Att'y Gen. 95, 96 (1971): "[C]h. 985, Stats., does not require that your county designate any newspaper as its official newspaper." (Italics in original). There have been no statutory amendments subsequent to the issuance of 62 Op. Att'y Gen. 81 that require a county with a population of under 250,000 to designate an official newspaper.
Your second question is whether your county is statutorily required to seek bids for the publication of legal notices.
Wisconsin Stat. § 59.52(29)(a) requires a county to seek competitive bids for "any contract for the construction, repair, remodeling or improvement of any public work, building, or furnishing of supplies or material of any kind where the estimated cost of such work will exceed $25,000[.]" The term "public work" therefore contemplates something of a physical nature that can be constructed, repaired, remodeled, or improved. See Joyce v. County of Dunn, 192 Wis. 2d 699, 706, 531 N.W.2d 628 (Ct.App. 1995). Publication of legal notices also does not involve the furnishing of "supplies" that are used or consumed or of "materials" that enter into or form part of a finished structure within the meaning of Wis. Stat. § 59.52(29)(a). See Joyce, 192 Wis. 2d at 706. A contract for newspaper publication involves the provision of a service that is not subject to Wis. Stat. § 59.52(29)(a). Compare 76 Op. Att'y Gen. 182 (1987).
There is no statute requiring that your county seek bids when publishing legal notices. Consequently, competitive bidding is not required. See Cullen v. Rock County, 244 Wis. 237, 240, 12 N.W.2d 38 (1943).
Your third question is whether your county may print its own proceedings or post them on its web site even if it does not seek competitive bids for the publication of its own proceedings as provided in Wis. Stat. § 59.14(3). Wisconsin Stat. § 59.14(3) provides that the county board "may at any meeting, regular or special, provide by resolution for the publication in pamphlet form by the lowest and best bidder therefor, of a sufficient and designated number of copies of its duly certified proceedings, for general distribution." In contrast, Wis. Stat. § 59.14(2) provides that "[t]he board shall, by ordinance or resolution, provide for publication in one or more newspapers in the county as a class 1 notice, under ch. 985, a certified copy of all its proceedings had at any meeting. . . ."
"[T]he word `shall' in a statute is presumed to be mandatory, especially where the legislature uses the words `shall' and `may' in the same statutory section." State v. Stenklyft, 2005 WI 71, ¶ 33, 281 Wis. 2d 484, 697 N.W.2d 769, citing State v. Sprosty, 227 Wis. 2d 316, 324-25, 595 N.W.2d 692 (1999). Wisconsin Stat. § 59.14(3) authorizes a county board to seek outside competitive bids for the publication of its proceedings in pamphlet form if it deems outside publication of such pamphlets to be desirable. Wisconsin Stat. § 59.14(3) does not preclude a county from printing and binding summaries of its own proceedings, nor does it prohibit a county from posting summaries of its proceedings on its official web site.
Your fourth question essentially is whether placing a legal notice on the county's web site can be considered newspaper publication under Wis. Stat. § 985.05(1), can be considered an "other form of publication" under Wis. Stat. § 985.05(1), or can be considered posting in a public place under Wis. Stat. § 985.02(2).
Wisconsin Stat. § 985.05(1) requires that certain legal notices be published in a newspaper. Wisconsin Stat. § 985.03(l)(c) provides that a "newspaper" is a "publication appearing at regular intervals and at least once a week, containing reports of happenings of recent occurrence of a varied character, such as political, social, moral and religious subjects, designed to inform the general reader." Counties lack statutory authority to issue publications containing such varied information, and the general reader does not refer to a county web site in order to obtain such information.
Even if counties did possess statutory authority to publish newspapers as defined in Wis. Stat. § 985.03(l)(c), I am not persuaded that such publication could occur solely on a county's web site. Although you cite Hernandez v. Alcorta, 2003 WL 22391311 (Terr. V.I., October 8, 2003) for the proposition that there are now "internet newspapers" that do not employ the method of sheet publication at all, providing a source of news on the internet is not providing a source of news on paper. Virtually anyone can buy a newspaper, but not everyone has a computer with access to the internet. Placing a legal notice on a county's web site therefore does not constitute newspaper publication under Wis. Stat. § 985.05(1).
In those situations where newspaper publication of legal notices is not mandatory under Wis. Stat. § 985.05(1), that statute provides that the county board "may, in lieu of newspaper publication, direct other form of publication or posting under s. 985.02(2)." Wisconsin Stat. § 985.03(1)(c) also explicitly states that a newspaper is a "publication." A dictionary may be used to ascertain the meaning of non-technical terms used in a statute. Garcia v. Mazda Motor of America, 2004 WI 93, ¶ 14, 273 Wis. 2d 612, 682 N.W.2d 365. Webster's Third New International Dictionary 1836 (1986) defines the noun "publication" as "2 a: the act or process of issuing copies . . . for general distribution to the public."
"[S]tatutory language is interpreted in the context which it is used; not in isolation but as part of a whole[.]" State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110. The phrase "other form of publication" in Wis. Stat. § 985.05(1) must be construed in the same sense as the phrase "newspaper publication" in that statute and in contradistinction to "posting" under Wis. Stat. § 985.05(2). Placing a legal notice on a county's web site does not involve creating copies of the notice for general distribution in a manner similar to newspaper publication. Placing a legal notice on a county's web site therefore is not an "other form of publication" within the meaning of Wis. Stat. § 985.05(2).
In those situations where posting of a legal notice is authorized in lieu of newspaper publication, Wis. Stat. § 985.02(2)(a) provides that "[t]he notice must be posted in at least 3 public places likely to give notice to persons affected." Since a county's web site is not located in more than one place, placing a legal notice on a county's web site cannot constitute posting in "3 public places" within the meaning of Wis. Stat. § 985.02(2)(a).
The fact that a county's web site is likely to give notice to persons affected by county proceedings does not mean that such a web site is a "public place" within the meaning of Wis. Stat. § 985.02(2)(a). The amendment to Wis. Stat. § 985.02(2)(a) requiring that posting occur in three public places was enacted in 1965. Ch. 252, sec. 280, Laws of 1965. When that language was enacted, the Legislature undoubtedly was referring to physical locations rather than to virtual public places such as the internet. When Wisconsin statutes use the term "public place," they do so to connote a physical location. See, e.g., Wis. Stat. § 103.21(6). The annotation "[w]hat is `public place' within requirements as to posting of notices," 90 A.L.R.2d 1210 (1963) also contains only cases involving the posting of notices in physical locations.
In Central Puget Sound Regional Transit Authority v. Miller, 128 P.3d 588, 595 (Wash. 2006), the court noted that "[t]here is very little case law on the subject of the sufficiency of web posting for notice requirements." Miller, 128 P.3d at 594, did uphold web posting under a statute requiring notice that "may include, but not be limited to, written notification to the city's official newspaper, publication of a notice in the official newspaper, posting of upcoming council meeting agendas, or such other processes as the city determines will satisfy the intent of this requirement." (Emphasis by the court.) Miller did not hold that placing a legal notice on a municipal web site constitutes posting the notice in a public place. A dissenting justice specifically stated that "[w]hen the term `posting' is used in notice statutes, it always refers to posting of notice in a physical public place or affected area (e.g. on the property itself), but does not refer to posting on a website." Miller, 128 P.3d at 604 (J.M. Johnson, J., dissenting).
While placing a legal notice on a county's web site is certainly a desirable practice and may in certain circumstances reach more members of the public than would placing the notice in a physical location, Wis. Stat. § 985.02(2)(a) contemplates posting of legal notices in three physical locations. Placing a legal notice on the internet therefore does not constitute posting in a public place under Wis. Stat. § 985.02(2).
I therefore conclude that (1) A county with a population of under 250,000 is not required to designate an official newspaper; (2) Such a county is not statutorily required to seek bids for the publication of legal notices; (3) Even if such a county does not competitively bid the publication of its own proceedings as provided in Wis. Stat. § 59.14(3), it may print its own proceedings or post them on its web site; (4) the placement of a legal notice on a county's web site is not newspaper publication under Wis. Stat. § 985.05(1), is not an "other form of publication" under Wis. Stat. § 985.05(1), and is not posting in a public place under Wis. Stat. § 985.02(2).
Sincerely,
J.B. Van Hollen Attorney General
JBVH:FTC:cla
CAPTION: A county with a population of under 250,000 is not required to designate an official newspaper and is not statutorily required to seek bids for the publication of legal notices. Even if such a county does not competitively bid the publication of its own proceedings as provided in Wis. Stat. § 59.14(3), it may print its own proceedings or post them on its web site. The placement of a legal notice on a county's web site is not newspaper publication under Wis. Stat. § 985.05(1), is not an "other form of publication" under Wis. Stat. § 985.05(1), and is not posting in a public place under Wis. Stat. § 985.02(2).