H. B. 2101
(By Delegate Kiss)
[Introduced January 20, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections one, two, three, four, five
and six, article three, chapter fifty-nine of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, relating to deleting one of the alternative
qualifications that allows an entity to be defined as a
"newspaper"; relaxing the requirement that all legal ads
must be published together; providing that when legal ads
cannot be published together, that locations of all such ads
will be listed on one of the first five pages; changing
rates that can be charged for legal advertisements; allowing
newly established newspapers to publish legal ads under certain circumstances; providing that newspapers may charge
less than rates specified or charge more than such rates
under particular circumstances; eliminating the requirement
that newspapers are responsible for posting legal ads and
placing such responsibility on the party who places the ad;
providing that agents of the publisher or owner of a
newspaper may submit affidavits as prima facie evidence when
a legal ad was published; requiring that legal fees incurred
in prosecuting a successful mandamus action to compel
publication of an ad shall be paid by the ad's progenitor;
and providing that no charge for the publication of a
political ad can be more than the "local open advertising
rate."
Be it enacted by the Legislature of West Virginia:
That sections one, two, three, four, five and six, article
three, chapter fifty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted to read as follows:
ARTICLE 3. NEWSPAPERS AND LEGAL ADVERTISEMENTS.
§59-3-1. Definitions and general provisions.
(a) As used in this article, elsewhere in this code or in any other provision of law:
(1) "Legal advertisement" means any notice, advertisement,
statement, information or other matter required by law or court
to be published.
(2) "Publication area" means the area or areas for which a
legal advertisement is required by law or court to be made.
(3) "Once a week for two successive weeks" means two
publications of a legal advertisement in a qualified newspaper
occurring within a period of fourteen consecutive days with at
least an interval of six full days within such period between the
date of the first publication and the date of the second
publication.
(4) "Once a week for three successive weeks" means three
publications of a legal advertisement in a qualified newspaper
occurring within a period of twenty-one consecutive days with at
least an interval of six full days within such period between the
date of the first publication and the date of the second
publication and with at least an interval of six full days within
such period between the date of the second publication and the
date of the third publication.
(5) "Publication date" means the date on which a qualified
newspaper is first placed in circulation.
(6) "General circulation" means not only a newspaper meeting
the other qualifications specified in subsection (b) of this
section and circulated among and of interest to the general
public in the area in which it circulates, but also a newspaper
meeting said other qualifications, the actual circulation of
which throughout the publication area is large enough to give
basis for a reasonable belief that publication of a legal
advertisement therein will give effective notice to the residents
of the publication area.
(b) Wherever the term "qualified newspaper" or "qualified
newspapers" is used in this article, or the term "newspaper" or
"newspapers" is used elsewhere in this code or in any other
provision of law in connection with a legal advertisement as
herein defined, the terms shall be taken to mean only a newspaper
or newspapers, as the case may be, published (unless otherwise
expressly provided) in the state of West Virginia, and which meet
the following qualifications:
(1) Any such newspaper must be of regular issue and must have a bona fide, general circulation in the publication area. A
newspaper shall be deemed to be of regular issue if it is
published regularly, as frequently as once a week, for at least
fifty weeks during the calendar year as prescribed by its mailing
permit, and (a) has been so published for at least one year
immediately preceding the date on which the legal advertisement
is delivered to the newspaper for publication. or (b) has
suspended publication on or within one year immediately preceding
the effective date of this section, and has reinstituted
publication within two years of the date of suspension, and was
published for at least one year immediately preceding the date of
suspension A newspaper shall be deemed to be of bona fide,
general circulation in the publication area if it meets the
definition of "general circulation" as defined above and is
circulated to the general public at a definite price or
consideration.
(2) Any such newspaper must bear a title or name, consist of
not less than four pages without a cover, and be a newspaper to
which the general public resorts for passing events of a
political, religious, commercial and social nature, and for current happenings, announcements, miscellaneous reading matters,
advertisements and other notices.
(c) Notwithstanding any other provision of this code or law
to the contrary, a qualified newspaper shall for all purposes be
considered to be published where it is first placed in
circulation.
§59-3-2. Classification of legal advertisements; designation of
newspapers; frequency of publication; posting;
manner of publishing.
(a) A Class I legal advertisement shall be published one
time, a Class II legal advertisement shall be published once a
week for two successive weeks, and a Class III legal
advertisement shall be published once a week for three successive
weeks, in a qualified newspaper published in the publication
area; or if there is no qualified newspaper published in the
publication area or if no qualified newspaper published in the
publication area will publish the legal advertisement at the
rates specified in section three of this article, the legal
advertisement shall be published in a qualified newspaper
published outside the publication area; or if no qualified
newspaper is published outside the publication area or if no qualified newspaper published outside the publication area will
publish the legal advertisement at the rates specified in section
three of this article, the legal advertisement shall be posted in
at least three public places in the publication area, one of
which postings shall be in the county courthouse, at or near the
front door thereof, if a county courthouse is located in the
publication area and one of which postings shall be in the
municipal office building or municipal office or offices, at or
near the front door thereof, if the publication area is a
municipality.
(b) A Class I-O legal advertisement shall be published one
time, a Class II-O legal advertisement shall be published once a
week for two successive weeks, and a Class III-O legal
advertisement shall be published once a week for three successive
weeks, in two qualified newspapers of opposite politics published
in the publication area; or if two qualified newspapers of
opposite politics are not published in the publication area or if
two qualified newspapers of opposite politics published in the
publication area will not publish the legal advertisement at the
rates specified in section three of this article, the legal advertisement shall be published in one qualified newspaper
published in the publication area; or if there is no qualified
newspaper published in the publication area or if no qualified
newspaper published in the publication area will publish the
legal advertisement at the rates specified in section three of
this article, the legal advertisement shall be published in one
qualified newspaper published outside the publication area; or if
no qualified newspaper is published outside the publication area
or if no qualified newspaper published outside the publication
area will publish the legal advertisement at the rates specified
in section three of this article, the legal advertisement shall
be posted in at least three public places in the publication
area, one of which postings shall be in the county courthouse, at
or near the front door thereof, if a county courthouse is located
in the publication area and one of which postings shall be in the
municipal office building or municipal office or offices, at or
near the front door thereof, if the publication area is a
municipality.
(c) A legal advertisement may be published in a qualified
newspaper published on any day of the week except Sunday.
(d) Whenever possible all legal advertisements shall be
published together in continuous columns on one page of the
newspaper publishing same under a general heading styled "Legal
Advertisements," unless the number or size of such legal
advertisements requires the use of more than one page, in which
event such legal advertisements shall be published in continuous
columns on as many pages as necessary under the same heading as
above required. If circumstances require, legal advertisements
in that issue shall be listed on one of the first five pages.
§59-3-3. Rates for legal advertisements; computation; filing
affidavits with secretary of state.
(a) The maximum rates which a publisher or proprietor of a
qualified newspaper in West Virginia may charge and receive for
a single or first publication of any legal advertisement set
solid shall depend upon the bona fide circulation of such
newspaper, as follows:
(1) Four cents per word if the qualified newspaper has
reinstituted publication within the limits prescribed by
subdivision (1), subsection (b), section one of this article,
less than two years immediately preceding the date on which a legal advertisement is delivered to the newspaper for publication
and has a bona fide circulation of less than one thousand.
(2) (1) Two cents per word if the qualified newspaper has a
bona fide circulation of less than one thousand; or less, except
as provided in subdivision (1) subsection (a) of this section
(3) (2) Five Seven cents per word if the qualified newspaper
has a bona fide circulation of one thousand to ten thousand;
(4) (3) Six Nine and one-fourth cents per word if the
qualified newspaper has a bona fide circulation of more than ten
thousand but less than forty thousand; or
(5) (4) Seven Ten and one-fourth cents per word if the
qualified newspaper has a bona fide circulation of forty thousand
or more.
(b) In computing the number of words in a legal
advertisement, not set solid, the basis shall be upon the size of
type in which legal advertising ordinarily is set by the
qualified newspaper making the publication, and shall be computed
at the legal rate as though the matter was solid type. that is
to say, on the basis of eighty-four words to the single column
inch in six point type, and fifty-four words to the single column inch in eight point type, and any other size type in proportion
(c) In determining the cost of a legal advertisement which
is to appear more than once in the same qualified newspaper, the
cost for the first publication shall be computed as specified in
subsections (a) and (b) of this section, and the cost of the
second and each subsequent publication shall be seventy-five
percent of the cost of the first publication computed as
aforesaid.
(d) The rates provided for in this section may be charged on
and after the first day of July, one thousand nine hundred
eighty-four ninety-five. Between the effective date of this
section and the said first day of July, one thousand nine hundred
eighty-four, the rates for publishing legal advertisements shall
be those in effect immediately prior to the effective date of
this section. The average bona fide circulation stated by each
qualified newspaper in the statement filed by such newspaper with
the United States post office department in November, one
thousand nine hundred eighty-three, shall control the rate
circulation classification of such qualified newspaper for the
period from the first day of July, one thousand nine hundred eighty- four, until the first day of July, one thousand nine
hundred eighty-five. Except as provided in paragraph (e) below,
on or before the first day of November, one thousand nine hundred
eighty-four ninety-five, the publisher or proprietor of each
newspaper desiring to publish any legal advertisement during the
ensuing fiscal year shall file with the secretary of state an
affidavit stating the average bona fide circulation of such
newspaper during the preceding calendar year, and sufficient
facts shall be set forth in the affidavit to show whether such
newspaper is a qualified newspaper. The average bona fide
circulation stated in such affidavit by each qualified newspaper
shall control the rate circulation classification of such
qualified newspaper for the ensuing fiscal year, beginning on the
first day of July one thousand nine hundred eighty-five of each
year. The publisher or proprietor of each newspaper desiring to
publish any legal advertisement during the ensuing fiscal year
shall file an affidavit as aforesaid on or before the first day
of November of each succeeding year, and such affidavit shall
control the rate circulation classification of such newspaper, if
it is a qualified newspaper, for the ensuing fiscal year. Any qualified newspaper, for which the required affidavit is not
filed on or before the first day of March November of any
calendar year after the year one thousand nine hundred
eighty-five ninety-five shall be conclusively presumed to have
for the ensuing fiscal year a bona fide circulation of less than
one thousand. At the time a publisher or proprietor of a
qualified newspaper files an affidavit with the secretary of
state, as aforesaid, such publisher or proprietor shall notify
the clerk of the county commission and the board of education of
the county in which such qualified newspaper is published of the
circulation classification of such qualified newspaper and of the
applicable rate for publishing legal advertisements in such
qualified newspaper during the ensuing fiscal year. If the
qualified newspaper is published in a municipality, the publisher
or proprietor shall at the same time also furnish the same
notification to the clerk or recorder of such municipality.
(e) Any newly established newspaper otherwise meeting the
requirements of a "qualified newspaper" or "newspaper" as those
terms are set forth in section one of this article, after
completing at least one full year of continuous publication may become qualified to publish legal advertisements by properly
filing an affidavit of circulation with the secretary of state's
office. Thereafter, commencing with the newspaper's second year
of publication, such newspaper shall comply with the provisions
of subparagraph (d) above.
(f) Nothing contained herein may prohibit qualified
newspapers from charging less than the specified rates for any
legal advertisement. Nor may such newspapers be prohibited from
assessing reasonable additional charges for:
(1) Posting of legal advertisements when such posting is
requested;
(2) Providing affidavits of publication; or
(3) Additional costs incurred when payment due for providing
a publication of a legal advertisement is not timely made.
§59-3-4. Proof of publication and posting.
(a) Any qualified newspaper publishing a legal advertisement
incident to any type of judicial proceeding or any provision in
a deed of trust or contract, or incident to any other case if
required by the responsible party placing the legal advertisement
for publication, shall make and furnish under oath, an affidavit of publication of each legal advertisement so published, showing
the number of times it was published in such qualified newspaper,
the dates of the publications thereof, and the cost of such
publications. When posting of any legal advertisement is
required in addition to publication thereof in a qualified
newspaper, such posting shall be done by the publisher or
proprietor of the qualified newspaper in which the legal
advertisement was published, and in such cases the affidavit of
publication shall state when and where the legal advertisement
was posted. In any case where any legal advertisement is not
required to be published in a qualified newspaper but is required
to be posted, an affidavit of the type provided for herein with
respect to posting shall be made by the party who would have been
responsible for causing the legal advertisement to be published
in a qualified newspaper had the same been required the
responsibility of the party responsible for placing the
advertisement.
(b) The affidavit of the publisher or proprietor or a duly
designated agent of the publisher or proprietor of a qualified
newspaper as aforesaid, together with a copy of the legal advertisement as published, shall constitute prima facie evidence
that the legal advertisement was published or published and
posted as stated in the affidavit.
§59-3-5. Mandamus to compel publication.
Any citizen, taxpayer, or the publisher or proprietor of any
qualified newspaper entitled by law to have any legal
advertisement published in his qualified newspaper, which any
county court commission or tribunal created in lieu thereof,
board of education, governing body of any municipal corporation,
or public officer, shall fail or refuse to make, may have a writ
of mandamus to compel such publication, if a qualified newspaper
is willing to accept the legal advertisement for publication at
the rates prescribed in section three of this article. All court
costs and legal fees of obtaining such a writ of mandamus shall
be paid by the party responsible for placing the legal
advertisement which is the subject of the writ.
§59-3-6. Political advertisements.
In no case involving the publication of paid advertisements
for candidates for political office shall the rate charged by any
publisher or proprietor of any newspaper be more than the average rate received by him from private patrons for similar advertising
composed of reading matter or photographs and requiring the same
amount of space newspaper's local open advertising rate.
NOTE: The purpose of this bill is as follows: To delete
one of the alternative qualifications that allows an entity to
be defined as a "newspaper"; to relax the requirement that all
legal ads must be published together; to provide that when legal
ads cannot be published together, locations of all such ads will
be listed on one of the first five pages of the newspaper; to
change rates that can be charged for legal advertisements; to
allow newly established newspapers to publish legal ads under
certain circumstances; to provide that newspapers may charge less
than rates specified or charge more than such rates under
particular circumstances; to eliminate the requirement that
newspapers are responsible for posting legal ads and placing such
responsibility on the party who places the ad; to provide that
agents of the publisher or owner of a newspaper may submit
affidavits as prima facie evidence that a legal ad was published;
to require that legal fees incurred in obtaining a writ of
mandamus to compel publication of an ad shall be paid by the ad's
progenitor; and to provide that no charge for the publication of
a political ad can be more than the "local open advertising
rate."
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.