COMMITTEE SUBSTITUTE

FOR

H. B. 4407

(By Delegate Kiss)


(Originating in the House Committee on Finance)


[March 1, 1994]


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 that 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 lowest full circulation 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 dissimilar politics published in the publication area; or if two qualified newspapers of opposite dissimilar politics are not published in the publication area or if two qualified newspapers of opposite dissimilar 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 all legal advertisements appearing in an issue of a newspaper cannot be published in the same location in the newspaper or require the use of more than one page in that issue, an index listing the location of such legal advertisements shall be printed on one of the first five pages of such newspaper.
§ 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 Six cents per word if the qualified newspaper has a bona fide circulation of one thousand to ten thousand;
(4) (3) Six and one-fourth Seven and one-half 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 and one-fourth Eight and one-half 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-four. 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 on or before the first day of November, one thousand nine hundred eighty-four ninety-four, 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-four 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 lowest full-circulation advertising rate.