In re Brothers Publishing Co., L.L.C.

2015 Ohio 454

• Court: Ohio Court of Appeals
• Decided: February 6, 2015
• Docket: 2014-CA-11
• Status: Published

Opinion

[Cite as In re Brothers Publishing Co., L.L.C., 2015-Ohio-454.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY

IN RE BROTHERS PUBLISHING : COMPANY, LLC dba : THE EARLY BIRD : C.A. CASE NO. 2014-CA-11 : : T.C. NO. 12CV645 : : (Civil Appeal from : Common Pleas Court) : :

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OPINION

Rendered on the ___6th___ day of ___ February_____, 2015.

GARY J. LEPPLA, Atty. Reg. No. 0017172 and PHILIP J. LEPPLA, Atty. Reg. No. 0089075, 2100 S. Patterson Blvd., Dayton, Ohio 45409 Attorneys for Appellant, Civitas Media, LLC, dba The Daily Advocate

LOUIS A. COLOMBO, Atty. Reg. No. 0025711, PNC Center, 1900 East 9th Street, Suite 3200, Cleveland, Ohio 44114 Attorney for Amicus Curiae Ohio Newspaper Association

NICOLE L. POHLMAN, Atty. Reg. No. 0086301 and ERIC H. BRAND, Atty. Reg. No. 0004986, 100 Washington Avenue, P. O. Box 158, Greenville, Ohio 45331 Attorneys for Appellee, Brothers Publishing Company, LLC, dba The Early Bird

LUTHER L. LIGGETT, JR., Atty. Reg. No. 0004683 and DAVID M. SCOTT, Atty. Reg. No. 0068110, 10 West Broad Street, #1320, Columbus, Ohio 43215 Attorneys for Amicus Curiae Community Papers

MARGARET B. HAYES, Atty. Reg. No. 0042031, Darke County Courthouse, 3rd floor, Greenville, Ohio 45331 Attorney for Appellee -2-

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FROELICH, P.J.

{¶ 1} Civitas Media, L.L.C., dba The Daily Advocate, appeals from a declaratory

judgment rendered in favor of Brothers Publishing Company, L.L.C., dba The Early Bird

Newspaper. The trial court held that The Early Bird is “a newspaper of general

circulation for Darke County, Ohio, and is entitled to publish legal notices and information

pursuant to R.C. 7.10 and other sections of Ohio law.”

{¶ 2} On appeal, Civitas Media contends that the evidence did not support the

trial court’s conclusions that The Early Bird meets all of the requirements of R.C. 7.12 to

be a newspaper of general circulation. Specifically, Civitas Media asserts that the

evidence did not demonstrate that The Early Bird has “the ability to add subscribers to its

distribution list” or that it supported its statements regarding circulation with “proof of an

independent audit of the publication performed, within the twelve months immediately

preceding legal publication.”

{¶ 3} For the following reasons, the trial court’s judgment will be affirmed.

I. Introduction of Relevant Statutes

{¶ 4} This action arises out of a dispute between two competing newspaper

publishers over the right of one publication, The Early Bird, to publish legal notices. Two

statutes are relevant to that discussion, R.C. 7.10 and R.C. 7.12.

{¶ 5} Prior to September 29, 2011, R.C. 7.10 provided that “Except as provided

in section 2701.09 of the Revised Code, all legal advertisements or notices shall be

printed in newspapers published in the English language.” R.C. 7.12 further stated that:

Whenever any legal publication is required by law to be made in a -3- newspaper published in a municipal corporation, county, or other political

subdivision, the newspaper shall also be a newspaper of general circulation

in the municipal corporation, county, or other political subdivision, without

further restriction or limitation upon a selection of the newspaper to be used.

***

In addition to all other requirements, a newspaper or newspaper of

general circulation * * * shall be a publication bearing a title or name,

regularly issued as frequently as once a week for a definite price or

consideration paid for by not less than fifty per cent of those to whom

distribution is made, having a second class mailing privilege, being not less

than four pages, published continuously during the immediately preceding

one-year period, and circulated generally in the political subdivision in

which it is published. Such publication must be of a type to which the

general public resorts for passing events of a political, religious,

commercial, and social nature, current happenings, announcements,

miscellaneous reading matter, advertisements, and other notices.

{¶ 6} In 2006, the Ohio legislature authorized a 22-member task force to study

local government public notice requirements. In 2011, the Ohio legislature amended

various sections of the Revised Code that pertain to legal publication in newspapers,

including R.C. 7.10 and 7.12. See Am.Sub.H.B. No. 153 (2011).

{¶ 7} After the 2011 amendments, and as subsequently amended in 2012 and

2014, R.C. 7.10 currently provides that, except as provided in R.C. 2701.09, “all legal

advertisements, notices, and proclamations shall be printed in a newspaper of general -4- circulation and shall be posted by the publisher of the newspaper on the newspaper’s

internet web site, if the newspaper has one. * * *” In addition, as revised by Am.Sub.H.B.

153, R.C. 7.12 now provides:

(A) Whenever a state agency or a political subdivision of the state is

required by law to make any legal publication in a newspaper, the

newspaper shall be a newspaper of general circulation. As used in the

Revised Code, “newspaper” or “newspaper of general circulation,” * * * is a

publication bearing a title or name that is regularly issued at least once a

week, and that meets all of the following requirements:

(1) It is printed in the English language using standard printing

methods, being not less than eight pages in the broadsheet format or

sixteen pages in the tabloid format.

(2) It contains at least twenty-five per cent editorial content, which

includes, but is not limited to, local news, political information, and local

sports.

(3) It has been published continuously for at least three years

immediately preceding legal publication by the state agency or political

subdivision.

(4) The publication has the ability to add subscribers to its distribution

list.

(5) The publication is circulated generally by United States mail or

carrier delivery in the political subdivision responsible for legal publication

or in the state, if legal publication is made by a state agency, by proof of the -5- filing of a United States postal service “Statement of Ownership,

Management, and Circulation” (PS form 3526) with the local postmaster, or

by proof of an independent audit of the publication performed, within the

twelve months immediately preceding legal publication.

{¶ 8} In summary, the amendments to R.C. 7.12 “added requirements to the

length of the prior publishing period; added more specific format and greater page

requirements; added a new method of delivery, by carrier; added more specific content

requirements; and through the content requirements, maintained the necessity for the

publication to be of a type that the public uses for current happenings. The legislation

also deleted the requirement that the publication be paid for by at least 50% of those to

whom it is distributed. Finally, the amendments added requirements for distribution lists

and circulation qualifications.” In re Brothers Publishing Co., L.L.C., 2d Dist. Darke No.

2013 CA 6, 2014-Ohio-133, ¶ 44.

{¶ 9} The 2011 amendments also added R.C. 7.12(B), which permits a “person

who disagrees that a publication is a ‘newspaper of general circulation’” to “deliver a

written request for mediation to the publisher of the publication and to the court of

common pleas of the county in which is located the political subdivision in which the

publication is circulated * * *.” R.C. 7.12(B) requires the court of common pleas to

appoint a mediator and states that “the parties shall follow the procedures of the

mediation program operated by the court.”

II. Factual and Procedural History

{¶ 10} The Early Bird is a weekly publication, circulated to approximately 28,000

addresses, predominantly in Darke County, Ohio, but also in surrounding counties. -6- Within Darke County, the publication is delivered for free by carriers, who are

independent contractors. A small percentage of the weekly publication is mailed to

customers outside of Darke County at a set cost, and copies are available for purchase

from the newspaper’s offices. The Early Bird is written in English and consists, on

average, of 40% editorial content, covering local news, politics, police beat, obituaries,

editorials, and the like.

{¶ 11} The Early Bird was established in 1968 by John and Carol Ball, and was

purchased in June 2012 by brothers Fred and Keith Foutz, who operate the newspaper

under the entity Brothers Publishing Company, L.L.C. On September 10, 2012, the

Darke County Prosecuting Attorney issued an opinion that The Early Bird was a

newspaper of general circulation, as defined by R.C. 7.12(A), which enabled state

agencies and political subdivisions to the use The Early Bird for legal notices. Pursuant

to R.C. 7.12(B), Civitas Media, which publishes The Daily Advocate, challenged the

prosecutor’s determination by delivering a written request for mediation to Brothers

Publishing and to the Darke County Court of Common Pleas. The court conducted

informal mediation, and the attendees apparently agreed that a declaratory judgment

action was necessary to resolve the dispute.1

{¶ 12} In October 2012, Brothers Publishing filed a petition for declaratory

judgment in the trial court, seeking a declaration that it is a newspaper of general

publication for purposes of R.C. 7.12. Civitas Media filed a brief opposing Brothers

Publishing’s petition, claiming that The Early Bird did not meet the fourth and fifth

1 Neither the prosecutor’s opinion nor Civitas Media’s written request for mediation was made part of the court’s record. In addition, there was no entry documenting the informal mediation held by the court and the result of that mediation. Nevertheless, it is undisputed that these events occurred. -7- requirements of R.C. 7.12, which require, respectively, that the publication have the

ability to add subscribers to its distribution list and have either proper registration with the

local postmaster or proof of a requisite independent audit to demonstrate its circulation.

Civitas Media attached several documents to support its position, including the task force

report and an affidavit from former State Representative Kathleen Chandler, a member of

the task force; Chandler opined about the legislative intent of the bill and specific

provisions of the bill. Brothers Publishing filed a reply memorandum, also attaching

several exhibits to support its contention that the fourth and fifth requirements were

satisfied, including a “Newspaper Publisher’s Statement” for the six-month period ending

March 31, 2011, as proof of an independent audit.

{¶ 13} On December 3, 2012, the trial court issued a decision and entry,

concluding that The Early Bird qualified as a newspaper of general circulation within

Darke County, Ohio, conditioned on Brothers Publishing’s filing a newspaper’s statement

that audited a time period within 12 months of the date of the prosecutor’s opinion. In

reaching its decision, that trial court rejected the legislative materials provided by Civitas

Media and concluded that Brothers Publishing’s exhibits indicated that it had a

distribution list and the ability to add subscribers. In addition, the court found that the

publisher’s statement satisfied the requirement of an independent audit. However,

because the audit had not been performed within the last 12 months immediately

preceding the filing of the petition for declaratory judgment, the court held that The Early

Bird had not satisfied R.C. 7.12(A)(5).

{¶ 14} Civitas Media appealed the trial court’s decision. In re Brothers

Publishing Co., L.L.C. v. Civitas Media, L.L.C., 2d Dist. Darke No. 2012 CA 14. On -8- January 23, 2013, a month after the notice of appeal was filed, Brothers Publishing filed a

supplement to the record, which consisted of an audit report for the period of July 1, 2011

through September 30, 2012.

{¶ 15} On May 20, 2013, we dismissed the appeal for lack of a final appealable

order. In re Brothers Publishing Co., L.L.C. (Decision and Entry, May 20, 2013). We

noted that we could not consider Brothers Publishing’s supplemental filing (the audit

report) and, depending on the adequacy of Brothers Publishing’s filing in the trial court,

further proceedings in the trial court would be necessary. We concluded that, while a

declaratory judgment action is a special proceeding for purposes of R.C. 2505.02, “the

trial court’s order did not affect a substantial right of Civitas because the order

contemplated further action.”

{¶ 16} On May 28, 2013, a week after our dismissal of the appeal, the trial court

issued another decision and judgment entry, indicating that it had considered the

supplement to the record and the audit report filed on January 23, and that it had

reviewed and reconsidered its December 3, 2012 decision. The court declared that The

Early Bird qualified as a newspaper of general circulation within Darke County and could

receive notice for legal publication pursuant to R.C. 7.12.

{¶ 17} Civitas Media appealed the May 28, 2013 judgment, raising five

assignments of error. In re Brothers Publishing Co., L.L.C., 2d Dist. Darke No. 2013 CA

6, 2014-Ohio-133. These assignments of error challenged the trial court’s procedures in

resolving the action, the adequacy of Brothers Publishing’s evidence, the trial court’s

failure to consider Chandler’s affidavit and the affidavit of another individual, Frank

Deaner, regarding the intent of the changes to R.C. 7.12, and the trial court’s conclusion -9- that The Early Bird was a newspaper of general circulation. Id.

{¶ 18} In our January 17, 2014, Opinion, we agreed with Civitas Media that the

procedures used by the trial court to resolve the action did not comport with R.C. 7.12,

which required the appointment of a mediator by the trial court, and the action did not

proceed in the same manner as other civil actions, as required by the Declaratory

Judgment Act. Id. at ¶ 25, ¶ 28. We further held that, after we dismissed Civitas

Media’s first appeal, the trial court erred in entering judgment without allowing the parties

input about the procedure and without providing Civitas Media an opportunity to

challenge the audit report. Id. at ¶ 29. We held that the trial court’s decision “must be

reversed and remanded, so that Civitas can challenge the audit report.” Id. at ¶ 33.

{¶ 19} Addressing the adequacy of the evidence, we noted that the “factual

record is extremely sparse,” id. at ¶ 35, and that the “affidavit attached to The Early Bird’s

trial court brief does not provide sufficient information to allow the court to decide the

issues being contested.” Id. at ¶ 37. We further agreed with Civitas Media that the audit

report before the trial court was insufficient to demonstrate compliance with the fifth

requirement of R.C. 7.12(A). Id. at ¶ 71. We noted that Civitas Media “waived the lack

of compliance with R.C. 7.12(A)(1), (2), and (3).” Id. at ¶ 36.

{¶ 20} Finally, we addressed whether R.C. 7.12 was ambiguous and whether the

trial court erred in failing to consider the affidavits related to the legislative intent in

modifying R.C. 7.12. We found a portion of R.C. 7.12(A)(4) to be ambiguous, reasoning:

We agree in part with the trial court’s apparent conclusion that the

statute is not ambiguous. Although different meanings might be attributed

to the word “subscribe,” R.C. 7.12, as amended, does not require that -10- subscriptions be paid. In fact, the statute as amended eliminates the

requirement that at least 50% of the newspaper’s subscriptions be paid.

The only apparent requirement in the amended statute is that a newspaper

must have the ability to add an individual to its distribution list, upon

receiving notice that the individual wishes to receive the paper.

On the other hand, we agree with Civitas’s argument that the

meaning of “distribution list” cannot be extended, as here, to include

the ways in which the paper is delivered, i.e., “31 paid home subscriptions,

26,845 unpaid home delivery, 14 unpaid mail delivery, 322 unpaid

residential bulk distribution, 165 unpaid non-residential bulk distribution.”

Decision and Judgment Entry, Doc. # 10, p. 7. According to Civitas, this

extension ignores the plain meaning of the word “list.” In addition, Civitas

contends that the legislature intended to exclude free, total market

coverage newspapers from the definition of qualifying newspapers,

because everyone receives the product for free, whether it is wanted or not.

Civitas stresses that the legislature was concerned with assuring that public

notices appear in publications that individuals want to receive and are likely

to read.

The legislature did not define “distribution list.” “In the absence of

any statutory definition of the requisite verification, we must apply the

word’s usual, normal, or customary meaning.” Chari v. Vore, 91 Ohio St.3d

323, 327, 744 N.E.2d 763 (2001), citing State ex rel. Cuyahoga Cty. v. State

Personnel Bd. of Review, 82 Ohio St.3d 496, 499, 696 N.E.2d 1054 (1998), -11- and R.C. 1.42. According to R.C. 1.42, “[w]ords and phrases shall be read

in context and construed according to the rules of grammar and common

usage.”

“Distribute” is commonly defined as “ * * * to give out or deliver esp. to

members of a group (~ newspapers) (~ leaflets) * * *.” Webster’s Ninth New

Collegiate Dictionary 368 (1991). “List” is also commonly defined as “ * * *

a simple series of words or numerals (as the names of persons or objects)

(a guest ~).” (Emphasis added.) Id. at 697, 696 N.E.2d 1054.

Reading the meaning of distribution list as simply encompassing a

list of types of deliveries renders the requirement of a “distribution list” -- and

the ability to add “subscribers” meaningless. Because the legislature could

have been more clear with respect to this requirement, we conclude

that R.C. 7.12(A)(4) is ambiguous.

On remand, the trial court should consider the factors listed in R.C.

1.49. We note that while the trial court did not apparently find the statute

ambiguous, the court, in what appears to be dicta, indicated that it would not

use the affidavits and task force report, in any event, because it did not find

these materials appropriate under R.C. 1.49.

In re Brothers Publishing, 2d Dist. Darke No. 2013-CA-6, 2014-Ohio-133, at ¶ 48-54.

{¶ 21} As to whether Chandler’s affidavit and the task force report fell within those

items that the trial court should consider, we held that “the trial court should have

considered Chandler’s affidavit and the report of the task force, as they were relevant -12- background information on the amendments to R.C. 7.12.” Id. at ¶ 62. However, “[t]he

weight to be given to these materials is for the trial court, in the first instance, on remand.”

Id. We noted that we did not “disagree that trial courts should be cautious about

considering statements of individual lawmakers.” Id. at ¶ 64. (For reasons we need not

discuss, we agreed with the trial court that Frank Deaner’s affidavit should not have been

considered.) We reversed the trial court’s judgment and remanded for further

proceedings.

{¶ 22} Upon remand to the trial court, the trial court ordered the parties to engage

in mediation, and it appointed a mediator to conduct the mediation. On March 6, 2014,

the mediator filed a report indicating that no settlement could be achieved without a

resolution of the underlying legal questions. The court subsequently held a scheduling

conference with counsel and issued a scheduling order.

{¶ 23} On May 30, 2014, the trial court held an evidentiary hearing. The parties

stipulated that The Early Bird satisfies the first three requirements of R.C. 7.12(A), and

that the issues before the court were requirements four and five under the statute. Keith

Foutz, co-owner of The Early Bird, was the sole witness. Brothers Publishing offered

nine exhibits, all of which were admitted.

{¶ 24} Civitas Media offered two exhibits: the affidavit of Kathleen Chandler and

the task force report. Civitas Media argued that our January 17, 2014, Opinion and the

law of the case doctrine required the trial court to consider her affidavit; Brothers

Publishing asserted that Chandler should have testified in person and that her affidavit

was inadmissible hearsay. Although the trial court indicated that the Rules of Evidence

would not permit the affidavit to be admitted, it ruled that “as a matter of the law of the -13- case, [it was] going to consider those exhibits.”

{¶ 25} In response, Brothers Publishing proffered an affidavit from Jim Haigh,

current government affairs consultant of the Mid-Atlantic Community Papers Association,

for the purpose of rebutting Chandler’s affidavit. The court indicated that it would defer

ruling on that affidavit and that it would indicate in its decision whether it considered

Haigh’s affidavit to be admissible.

{¶ 26} On July 1, 2014, the trial court issued a decision and entry, which again

held that The Early Bird was a newspaper of general circulation in Darke County and was

eligible to publish legal notices. The trial court first found that The Early Bird has the

ability to add subscribers to the newspaper; the court based its conclusion on the

newspaper’s geographic delivery maps, its list of those who chose to receive the

newspaper by mail, and its list of persons who wish to terminate and/or temporarily

suspend delivery. The court noted that there was no requirement that recipients pay for

the newspaper. Second, the court found that The Early Bird possessed a “distribution

list.” The court relied upon the maps and route information showing the addresses

where the newspaper is distributed, the list of individuals who receive the newspaper by

mail, and the newspaper’s identification of individuals who do not receive the newspaper.

Finally, the court found that Foutz’s testimony and Exhibits 8 and 9, which were audit

reports of the circulation of the newspaper, satisfied R.C. 7.12(A)(5). We note that, in

ruling that The Early Bird is a newspaper of general circulation, the trial court indicated

that it had considered, but given “little evidentiary weight,” to Chandler’s affidavit. The

decision reflects that the trial court did not consider Haigh’s affidavit.

{¶ 27} Civitas Media appeals from the trial court’s July 1, 2014 ruling, raising -14- three assignments of error, which we will address together. Amicus Curiae Ohio

Newspaper Association has filed a brief supporting Civitas Media’s position. Amicus

Curiae Community Papers of Ohio and West Virginia has filed a brief in support of

Brothers Publishing.

III. Assignments of Error and Standard of Review

{¶ 28} Civitas Media’s assignments of error state: (1) “The Trial Court Reached its

Decision in the Absence of Adequate Evidentiary Materials,” (2) “The Trial Court Erred in

Finding The Early Bird to be a Newspaper of General Circulation as a Matter of Law,” and

(3) “The Trial Court Erred in Concluding that The Early Bird was a Newspaper of General

Circulation Based Upon the Evidence.”

{¶ 29} In its assignments of error, Civitas Media claims that the trial court erred in

determining that The Early Bird is a newspaper of general circulation. Civitas Media

asserts that the trial court misinterpreted the requirements of R.C. 7.12(A)(4), that the trial

court gave too little weight to the affidavit of Kathleen Chandler, and that Brothers

Publishing’s evidence did not demonstrate that the requirements of R.C. 7.12(A)(4) and

(5) were met. In essence, Civitas Media claims that the trial court’s judgment was

against the manifest weight of the evidence.

{¶ 30} “Weight of the evidence concerns ‘the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.

It indicates clearly to the jury [or other fact finder] that the party having the burden of proof

will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find

the greater amount of credible evidence sustains the issue which is to be established

before them. Weight is not a question of mathematics, but depends on its effect in -15- inducing belief.’” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d

517, ¶ 12, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

{¶ 31} An appellate court applies the same manifest-weight-of-the-evidence

standard in criminal and civil cases. Eastley at ¶ 17. The appellate court must review

the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses and determine whether, in resolving conflicts in the evidence, the

factfinder clearly lost its way and created such a manifest miscarriage of justice that the

judgment must be reversed and a new trial ordered. A court of appeals “must always be

mindful of the presumption in favor of the finder of fact.” Eastley at ¶ 19, ¶ 21. The

discretionary power to grant a new trial should be exercised only in the exceptional case

in which the evidence weighs heavily against the judgment. State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983), cited with approval in Thompkins at

387.

IV. Affidavit of Kathleen Chandler and Legislative History

{¶ 32} We begin with the trial court’s decision to afford “little evidentiary weight” to

the affidavit of former State Representative Kathleen Chandler.

{¶ 33} Chandler’s affidavit stated that she was a member of the 22-member task

force that studied changes to R.C. 7.12, and that “[b]road revisions to the public notice

statutes were voted upon by the Task Force and were included in the final report, which

was delivered to the Governor, Senate President and Speaker of the House. Those

revisions – including a new definition for ‘newspapers of general circulation’ – became the

framework for legislation.” Chandler stated that she authored draft legislation, and State

Representative Gardner ultimately sponsored the bill that was passed into law. -16- {¶ 34} Chandler’s affidavit addressed the requirement in R.C. 7.12(A)(4) that a

“publication has the ability to add subscribers to its distribution list.” She stated:

In regard to requirement (4), there was clear intent to require a qualifying

publication to provide proof of distribution by maintaining a distribution list

with the ability to add subscribers to such list. In other words, the law

requires that “X” number of households have “invited” the publication.

Indeed, there was deliberate intent regarding item (4) that mass delivered

publications, without receiving an “invitation” to be delivered to such

household by the current occupier or resident (i.e., having the ability to add

subscribers to a distribution list), would not be considered as a newspaper

of “general circulation,” and therefore, not qualify as a publisher of Legal

Notices.

Furthermore, if the publication cannot produce a published “Statement of

Ownership, Management, and Circulation” (must be published on or

nearest publication date to October 1) or an independent audit (as required

by item 5) OR cannot produce a defined “distribution list” that clearly defines

the publication as being invited into the home, whether free or paid, then the

publication is not a “newspaper of general circulation” as defined by O.R.C.

7.12.

When considering provisions (4) and (5), the underlying intent is for

government to ascertain not only the geographic penetration of the

publication, but also the likelihood that the publication is being read and not

simply discarded as uninvited print media. -17- Exhibit D, Chandler Affidavit, p. 2.

{¶ 35} We left to the trial court’s discretion the degree to which Chandler’s

affidavit would be considered, and we cautioned against giving undue weight to

statements of individual legislators. In re Brothers Publishing, 2d Dist. Darke No. 2013

CA 6, 2014-Ohio-133, at ¶ 62, ¶ 64. Here, the trial court gave six reasons for giving

Chandler’s affidavit little weight:

(1) though a legislative member of the Local Government Public Notice

Task Force, there is no indicia that Ms. Chandler attended hearings and

meetings or has any personal knowledge of the contents of such meetings

and hearings; (2) though Ms. Chandler apparently drafted the bill to revise

R.C. 7.12, there was no indication whether changes were made during the

legislative process and, if any, how any changes may have impacted the

purposes and intention of the new law; (3) there is no indication whether Ms.

Chandler was personally involved in any legislative hearings or debates on

the bill upon which to then express statements of legislative intent; (4) her

understandings of legislative intent are personal and not necessarily those

of the Legislature and/or individual members; (5) Ms. Chandler did not

disavow any economic, political or other interest in the outcome of the

issues about which she opined; and (6) it is uncertain whether she

supported or opposed the bill when it was passed.

The trial court further stated that, in the absence of cross-examination, “it can merely be

said that Ms. Chandler was the drafter of a bill that was sponsored by another legislator

and upon which she ultimately voted.” -18- {¶ 36} We find no error in the trial court’s decision to afford Chandler’s affidavit

little weight. Although Chandler was a member of the task force, neither the task force

report nor the legislative history of R.C. 7.12 supports a conclusion that the task force,

and subsequently the Ohio legislature, had a singular, unanimous intent regarding the

language of R.C. 7.12(A)(4).

{¶ 37} The May 31, 2008 task force final report, which was admitted as Exhibit E,

contains a list of recommendations to be voted on, with various recommendations

supported by different members of the task force. The report also included summaries of

commentary from different task force members, each of whom represented a different

interested party (i.e., daily newspapers, township government, county recorders, county

auditors, prosecuting attorneys, county engineers, and Ohio Legal Daily Coalition). We

find nothing in the task force final report to indicate that the newspapers of general

circulation must be “invited,” and several task force members supported including free

newspapers within the definition of “newspaper of general circulation.”

{¶ 38} Chandler stated that she authored draft legislation based on the task force

recommendations. Chandler sponsored H.B. 220, which was introduced to the Ohio

House of Representatives on June 16, 2009.2 The bill indicated that it was intended to

implement the task force’s recommendations by, among other things, “authorizing legal

publication to be made in a newspaper of general circulation” and “eliminating certain

publication and postal privilege requirements.” As introduced, H.B. 220 contained six

requirements for a newspaper to qualify as a “newspaper of general circulation,” including

2 Draft versions of bills, bill analyses, fiscal notes, voting information, Governor’s veto messages, and other documents related to draft legislation are available on the Ohio Legislative Service Commission’s website. -19- that not less than 50% of those to whom the publication is distributed pay a definite price

for it (thus precluding free publications) and that the publication have “the ability to add to

its distribution list subscribers in the political subdivision.” The definite price requirement

is inconsistent with some of the views expressed in the task force recommendations and

commentary.

{¶ 39} By the time Sub.H.B. 220 was passed by the Ohio House of

Representatives, the definite price requirement had been eliminated, but the proposed

revisions of R.C. 7.12 still included the requirement that the publication have the ability to

add subscribers to its distribution list. H.B. 220 was not passed by the Ohio Senate.

{¶ 40} While H.B. 220 was pending, the General Assembly did pass

Am.Sub.H.B.1, which also sought to amend R.C. 7.12 by eliminating the definite price

and second class mailing requirements of the existing statute, and by adding

requirements for the percentage of editorial content and “audited circulation.”

Am.Sub.H.B.1 made no mention of subscribers or distribution lists. The portion of the bill

relating to R.C. 7.12 was vetoed, so that revisions to R.C. 7.12 could be considered as

part of a comprehensive bill on the subject, H.B. 220. See Governor’s Budget Message

for Am.Sub.H.B.1.

{¶ 41} When originally presented to the House Committee, the language of H.B.

153 mirrored that of Am.Sub.H.B.1. An amendment was passed in the House Finance

and Appropriations Committee, which revised the proposed changes to R.C. 7.12 to

match the wording in Sub.H.B. 220. See H.B. 153, House Amendment 2112.

Am.Sub.H.B. 153 was enacted, creating the current requirements of R.C. 7.12.

{¶ 42} Upon consideration of the available legislative history and the task force -20- report, the trial court did not abuse its discretion in concluding that Chandler’s affidavit

reflected the views of an individual legislator and that her affidavit should be given little

weight in interpreting R.C. 7.12(A)(4).

V. Requirements of R.C. 7.12(A)(4) and Manifest Weight

{¶ 43} As stated above, R.C. 7.12(A) requires that a newspaper meet several

requirements, including (1) be in English, and not less than 8 pages in broad sheet format,

or 16 pages in tabloid format; (2) contain at least one-fourth (or 25%) editorial comment,

including local news, political information, and local sports; (3) be continuously published

for at least 3 years immediately prior to the legal publication; (4) have the ability to add

“subscribers”’ to its “distribution list”; and (5) be circulated generally within the jurisdiction,

with proof of circulation by the U.S. postal service through PS form 3526 or by an

independent audit of the publication within the 12 months immediately preceding legal

publication. R.C. 7.12(A)(1)-(5). Civitas Media does not dispute that The Early Bird

satisfies R.C. 7.12(A)(1)-(3).

{¶ 44} Civitas Media argues that Brothers Publishing failed to demonstrate that

The Early Bird satisfies R.C. 7.12(A)(4), because the use of the term “subscriber”

reflected an intent that the recipient of the publication provide payment or consideration.

As quoted above, we rejected this interpretation in our prior Opinion, stating that “R.C.

7.12, as amended, does not require that subscriptions be paid.” In re Brothers

Publishing, 2d Dist. Darke No. 2013-CA-6, 2014-Ohio-133, at ¶ 48. We recognized that

the 2011 amendments eliminated the requirement that at least 50% of the newspaper’s

subscriptions be paid, and that “[t]he only apparent requirement in the amended statute is

that a newspaper must have the ability to add an individual to its distribution list, upon -21- receiving notice that the individual wishes to receive the paper.” Id.

{¶ 45} Civitas Media and Ohio Newspaper Association urge us to reconsider that

interpretation, citing the definition of “subscribe” in Webster’s New World College

Dictionary (4th Ed.2000), 1427, and the legislature’s use of the term “subscriber,” which

Ohio Newspaper Association states is “a term introduced for the first time in the recent

revisions to R.C. §7.12.” We find no fault with our (and the trial court’s) conclusion that

payment is not a requirement under R.C. 7.12.

{¶ 46} We reiterate that former R.C. 7.12 included a requirement that the

newspaper be distributed “for a definite price or consideration paid for by not less than fifty

per cent of those to whom distribution is made”; that requirement was eliminated by the

amendment to R.C. 7.12 in Am.Sub.H.B. 153. To the extent that the task force report

provides any indication of legislative intent, the report contained suggestions that free

newspapers be permitted to publish legal notices. For example, the Township

Government and County Auditors Recommendations included the recommendation to

“[a]mend the requirements for qualifying newspapers to include free newspapers,

including newsweeklies.” The report also included commentary from various task force

members, some of whom also recommended that the requirements for a newspaper of

general circulation be amended so “certain free newspapers” could publish public

{¶ 47} Reviewing the history of proposed changes to R.C. 7.12, the provision

requiring the ability to add “subscribers” to distribution lists first appears in H.B. 220, as

introduced, which also included a payment requirement. Although the payment

requirement was eliminated in later drafts and in H.B. 153, the term “subscriber” remained -22- in the requirement concerning distribution lists. Under these circumstances, the fact that

the term “subscriber” was added to the current version of R.C. 7.12 does not necessarily

reflect an intent that recipients pay for the publication. Indeed, possible reasons for the

continued use of the term “subscriber” include that the drafters simply failed to modify that

term once the payment requirement was eliminated or that the drafters intended that

newspapers of general circulation have the ability to add recipients of the publication

upon request. We therefore decline to alter our conclusion that “R.C. 7.12, as amended,

does not require that subscriptions be paid.”

{¶ 48} Civitas Media further claims that the “distribution list” must be a list

demonstrating that the recipients “invited” the publication to their home or business. We

find no indication of that requirement in either the statute, the task force final report, or

draft bills proposing changes to R.C. 7.12. Further, the elimination of the requirement

that the publication have a second class mailing privilege and the addition of an option to

establish circulation by an independent audit undermine the contention that distribution

must be only to those specific residences or businesses that request delivery by name.

The statute does not require that recipients be identified by name.

{¶ 49} In light of these interpretations, the trial court’s finding that The Early Bird

satisfies R.C. 7.12(A)(4) is not against the manifest weight of the evidence. Keith Foutz

testified that The Early Bird is distributed predominantly by carriers and, to a much lesser

extent, by mail. It is delivered to approximately 28,000 homes and businesses, with the

vast majority in Darke County. Although the The Early Bird does not identify its

recipients by name, it maintains approximately 125 delivery routes for its carriers to

follow; The Early Bird informs carriers of addresses within those routes that should not -23- receive the publication. An example of a delivery route, suggested directions for

carriers, and a stop list were admitted as Exhibits 5, 6, and 7. Upon review of the

evidence, the trial court reasonably concluded that Brothers Publishing’s evidence

demonstrated a distribution list of the addresses to which The Early Bird are delivered.

{¶ 50} In addition, Brothers Publishing presented evidence that it was able to add

and subtract customers from its distribution list. Foutz testified that The Early Bird was

able to adjust the number of copies that were distributed and to add or subtract customers

from its distribution list on a weekly basis. Foutz identified an example of a start/stop

request form that is used to begin or terminate distribution to addresses and also to

document delivery concerns. Exhibit 3 was a list of individuals who had requested

distribution of The Early Bird to be started. In addition, Fourtz testified that the

publication has approximately 37 mail subscriptions. These individuals, all located

outside of Darke County, pay for the publication to be delivered; a list of these individuals,

who Foutz referred to as subscribers, was presented as Exhibit 4. Based on Brothers

Publishing’s evidence, the trial court reasonably concluded that The Early Bird had the

ability to add subscribers to its distribution list, both within and outside of Darke County.

The trial court’s conclusion that The Early Bird satisfied R.C. 7.12(A)(4) was not against

the manifest weight of the evidence.

VI. Requirements of R.C. 7.12(A)(5) and Manifest Weight

{¶ 51} Civitas Media further claims that the trial court erred in concluding that

Brothers Publishing demonstrated that The Early Bird satisfied R.C. 7.12(A)(5).

{¶ 52} R.C. 7.12(A)(5) requires proof that the publication is circulated generally;

that proof may be established by filing PS form 3526 or by the performance of an -24- independent audit of the publication within a stated time period. Foutz testified that there

are four major publication auditing firms in the United States, and that an auditing system

has been developed nationwide. During the audit, the auditor validates the publication’s

distribution numbers and the printing amounts that occur. The auditor also contacts

readers to verify that distribution had, in fact, occurred. Foutz stated that “the audit

process serves to validate our distribution numbers to our advertisers so that we don’t say

that we are distributing 28,000 and in reality only distributing 10 or 12 or 15.”

{¶ 53} Foutz stated that The Early Bird uses Circulation Verification Council,

which has thousands of clients, as its auditor. At the hearing, Brothers Publishing

submitted and Foutz identified Exhibit 9 as a Publication Audit Report for the period

October 1, 2012 through September 30, 2013, prepared by Circulation Verification

Council. The “publication information” portion of the audit report reflected, among other

things, that The Early Bird had an average net circulation of 27,969, was distributed

weekly, and had 99.9% unpaid circulation/0.1% paid circulation. Ninety-eight percent of

the delivery was performed by carriers. Under “circulating pricing,” the audit report

stated that “The Early Bird is a controlled circulation weekly with a cover price of $1.00.

Annual mail subscription rate: Contact Publisher.” Page two of the report provided more

detailed information about circulation, distribution, and net press averages.

{¶ 54} Civitas Media argues that the audit report is “full of ambiguity,” satisfies “no

appropriate evidentiary standard,” and that “[n]o one verified the purported data

contained therein.” However, Foutz testified generally about what publication auditors

do and that The Early Bird uses Circulation Verification Council, an auditor with a large

customer base. Civitas Media presented no evidence that Circulation Verification -25- Council’s audit report for The Early Bird failed to comport with industry standards for an

independent audit. The trial court’s conclusions that The Early Bird is circulated

generally and that Brothers Publishing provided proof by performance of an independent

audit of the publication within the required time period were not against the manifest

weight of the evidence.

VII. Conclusion

{¶ 55} Civitas Media’s assignments of error are overruled. The trial court’s

judgment will be affirmed.

FAIN, J. and HALL, J., concur.

Copies mailed to:

Gary J. Leppla Phillip J. Leppla Louis A. Colombo Nicole L. Pohlman Eric H. Brand Luther L. Liggett, Jr. David M. Scott Margaret B. Hayes Hon. Jonathan P. Hein