ENGROSSED

Senate Bill No. 479

(By Senators Unger, Kessler, Edgell, Mitchell, Dawson, Love, Snyder, McKenzie, Dittmar, Hunter and Ross)

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[Introduced February 14, 2000; referred to the Committee on the Judiciary; and then to the Committee on Finance.]

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A BILL to amend and reenact sections one, two, three and four, article three, chapter fifty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to removing or changing outdated language; removing or changing publishing requirements which, due to changes in print techniques and practices, are impossible or impractical; reordering circulation brackets; and increasing legal advertisement rates.

Be it enacted by the Legislature of West Virginia:
That sections one, two, three and four, article three, chapter fifty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all 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 the 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 the 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 the 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 considered 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 considered 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-0 legal advertisement shall be published one time, a Class II-0 legal advertisement shall be published once a week for two successive weeks, and a Class III-0 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) 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.
§59-3-3. Rates for legal advertisements; computation; filing
affidavits with secretary of state.
(a) The 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) Two Three cents per word if the qualified newspaper has a bona fide circulation of less than one thousand, except as provided in subdivision (1), subsection (a) of this section;
(2) Five Six cents per word if the qualified newspaper has a bona fide circulation of one thousand to ten thousand;
(3) Six and one-fourth Seven 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
(4) Seven and one-fourth Eight and one-fourth cents per word if the qualified newspaper has a bona fide circulation of forty thousand or more: Provided, That it is the intent of the Legislature to reconsider the issue of publication rates for legal advertisement in the year one thousand nine hundred ninety-seven two thousand one.
(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 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 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 ninety-four, shall control the rate of circulation classification of such qualified newspaper for the period commencing the first day of July, one thousand nine hundred ninety- five, until the first day of July, one thousand nine hundred ninety-six. On or before the first day of November, one thousand nine hundred ninety-five, the publisher or proprietor of each newspaper desiring to publish any legal advertisement during the ensuing one year time period commencing the first day of July, one thousand nine hundred ninety-six, shall file with the secretary of state an affidavit stating the average bona fide circulation of such newspaper during the preceding twelve month time period ending the thirtieth day of June immediately preceding the November in which the affidavit is filed, 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 for the ensuing twelve month period commencing the first day of July, one thousand nine hundred ninety- six. The publisher or proprietor of each newspaper desiring to publish any legal advertisement during the ensuing twelve month period commencing the first day of July, 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 twelve month period commencing the first day of July. Any qualified newspaper for which the required affidavit is not filed on or before the first day of March of any calendar year after the year one thousand nine hundred ninety-six, shall be conclusively presumed to have for the ensuing twelve month period commencing the first day of July of such 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 the publisher or proprietor shall notify the clerk of the county commission and the board of education of the county in which such the qualified newspaper is published of the circulation classification of such qualified newspaper and of the applicable rate for publishing legal advertisements in such the qualified newspaper during the ensuing twelve month period commencing the first day of July. 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 the municipality.
(e) The rate charged for political advertising appearing in a newspaper at any time or times during the time period commencing thirty days prior to any primary or general election and ending the day following such the election may not exceed one hundred five percent of the lowest commercial rate charged by the newspaper in which such political advertising appears.
(f) Nothing contained herein may prohibit qualified newspapers from charging less than the specified rates for any legal advertisement or from charging usual and customary rates for notarizing and producing additional copies of the affidavits and statements required in section four, article three of this chapter.
§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 a qualified newspaper, the dates of the publications thereof, and the cost of such the publications. When posting of any legal advertisement is required in addition to publication thereof in a qualified newspaper, such the 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 party responsible for causing the legal advertisement to be published. 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.
(b) The affidavit 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.