Court’s plan to move legal notices ‘illogical’
Court-required public notices are valuable tools of our democracy because they provide due process to Americans who will be impacted by the government action and help make the judicial process more transparent.
The publication of notices doesn’t guarantee that the targeted individual will see the notice, but it’s the best good-faith effort to let someone know their life is about to be impacted if they do not respond when normal service of notice can’t be done.
The Indiana Supreme Court, though, is considering a rule change that will effectively curtail such notice. The proposed change to Trial Rule 4.13 would allow an attorney to place such a notice on a website controlled by the Supreme Court rather than publish the notice in a local newspaper.
These notices could concern the sale of property through a mortgage foreclosure, the changing of the name of one’s child, the opening of the administration of an estate or a general notice of the filing of a lawsuit where the defendant hasn’t been informed.
Newspapers have been where Hoosiers know to look for information about their community since before Indiana was a state. Then-territorial Gov. William Henry Harrison enticed Elihu Stout to transport a press by boat and ox cart to Vincennes for the sole purpose of creating a newspaper so that government notices could be published and disseminated to the public.
It’s illogical to expect Hoosiers to routinely log onto the Indiana Supreme Court website to determine whether there’s a court action that impacts them, their businesses, other family members or friends. The chances they learn of such court action from the newspaper is much greater, either by seeing it themselves or learning from someone else who read it in the paper.
Effectively moving the notices from newspapers to a state website will reduce the opportunities for such notices to be seen by Hoosiers. The Indiana Supreme Court should be looking at ways to expand the reach of public notices, not constrict that reach.
Cost of publication has been the only factor mentioned as a rationale for this proposal.
Prior to the release of this proposal, the Hoosier State Press Association already had committed to proposing a modernization of the state’s Legal Advertising and Publication of Legal Notices statute (I.C. 5-3-1) to the state legislature. That proposal will include revision of the current pricing for notices of sheriff’s sale (mortgage foreclosure), the opening of administration of an estate, a petition to change a name and summons or notice of lawsuit that will reduce the present average cost.
Data collected thus far raises a question as to whether cost is a valid concern for effective justice. HSPA information collected from 60 newspapers shows the average cost for printing public notices for estate administration to be $101, for summons to be $186 and for change of name to be $126.
The cost of public notice when plaintiffs or interested parties can’t be identified is a small price for due process, when one takes into account the hourly rate for an attorney generally ranges from $100 to $300 an hour. The court filing fees and notice by a sheriff can generally range from $160 to $270.
HSPA also questions the need for tax dollars to be spent creating a special website for court-related public notices, when HSPA already has a website that aggregates public notices (www.indianapublicnotices.com).
HSPA also has committed to restricting the costs associated with giving public notice for plaintiffs who are indigent and has attempted to get language passed on that issue in the last two legislative sessions, working with two organizations that provide free legal service to the disadvantaged.
Indiana newspapers, through the Hoosier State Press Association, want to work with the Indiana Supreme Court to improve the public notice process. We suggest the utilization of court-approved templates to aid in the proper terminology for pro se litigants to publish notices and require newspapers to upload publish/posted notices to the state’s MyCase docketing program so that attorneys are informed when notices have properly been given or help an attorney flag when an error occurs that needs to be rectified to prevent legal delays or lack of due process.
HSPA acknowledges that newspapers benefit financially through the publication of public notices as does any business that serves government and private-party clients, and a move from newspaper publication to government website posting would reduce much-needed revenue as Indiana’s newspaper industry recovers from the pandemic. Thirteen Indiana newspapers closed their doors during the last 16 months.
It would be ironic if the Indiana Supreme Court inadvertently pushed additional newspapers into insolvency because the two institutions have a symbiotic relationship. The courts derive their power through public support of the judicial process. When the process or a judge is attacked, it is the news media that informs Hoosiers of an unwarranted attack on the integrity of the judiciary. It is the local newspaper that covers court cases within the county, which reinforces the importance of the rule of law in a democracy. Conversely, it’s the judicial process that helps preserve the First Amendment and newspapers’ right to gather news, protecting the press from government interference.
The Hoosier State Press Association will urge the Indiana Supreme Court change this proposal from an either newspaper publication or court website posting choice to a newspaper distributed and court website posted public notice process that preserves the four essential elements to effective notice: Accessibility of notices for the public; Verification that notices were properly published/posted; Archiving of the notices for legal and historical purposes; and an Independent distribution system to ensure the system isn’t corrupted.
Editor’s note: Stephen Key is executive director and general counsel for the Hoosier State Press Association, which represents Indiana’ paid-circulation newspapers. Hoosiers concerned about the Indiana Supreme Court’s proposed rule change or who support this proposal can submit comments to the Court. The deadline for submission of comments is 1 p.m. Tuesday, Aug.10. The link to be able to submit comments is https://www.in.gov/courts/publications/proposed-rules/july-2021/. Written comments may be mailed to: Jennifer Bauer, Indiana Office of Court Services, 251 N. Illinois St., Suite 800, Indianapolis, IN 46204. The proposed changes to the policy can be found at https://www.in.gov/courts/files/rules-proposed-2021-jul-trial.pdf.