Public notice publication could face challenge from judiciary 


For decades, the Hoosier State Press Association has fought a war on two fronts to preserve the concept of publication of public notices to inform citizens of actions taken or contemplated by state and local government units. 

One front is the General Assembly, where bills are filed that weaken or eliminate public notice advertising publication requirements. The other front is the executive branch and its state agencies, the most recent example being the Indiana Department of Environmental Managements. 

Unfortunately, a third front may open in the not too distant future – the judiciary. 

A presentation was made during the last meeting of the Advisory Task Force of Remote Access to and Privacy of Electronic Court Records concerning how Alaska gives notice when the address of a party isn’t known. Publication in Alaskan newspapers isn’t the process. It’s posting on the court system’s website. 

Several members of the task force expressed favorable interest in Indiana exploring that option. Chief Justice Loretta Rush, who chaired the task force, spoke of the possible savings in filing costs if publication of notice could be eliminated. 

As a task force member, I pointed out that Hoosiers prefer published notices to the Internet and how more effective newspaper publication was to Internet posting if one desires that citizens actually see the notices. 

 Utilities would love to end the publication of notices that draw attention to rate increases or efforts to build new power plants. 

The American Opinion Research survey conducted in 2017 showed that 63 percent of adult Hoosiers favored publication of notices even when informed that a government agency could spend several thousands of dollars over the year to print those notices. 

I also pointed to the overwhelming public support for publication of Air Quality Permit notice of hearings collected by IDEM as it considered the elimination of the publication requirement. Over two comment periods, public sentiment was four comments in favor of IDEM website posting and 600-plus who opposed the end of published notices. 

The survey found that Hoosiers said they would be 60 percent less likely to see public notices on government websites rather than in their local newspaper. One of the advantages of print publication is that people read the newspaper for local government news, high school sports, human interest features or for sale advertising, but discover the public notice advertisement that might impact them. No one would think to search various government websites to see if any government unit is planning something that would adversely affect them, such as a permit to pollute the air. 

Unfortunately, the Environmental Rules Board ignored the public’s wishes in favor of bureaucratic expediency. The Board membership, which is entirely appointed (not elected), primarily was comprised of government officials and representatives of special interests (agribusiness, utilities, for example). 

This meant the board was predisposed to eliminate the publication requirement. Government officials generally favor posting on their websites because it’s easier to do and less likely to generate public interest, which makes hearings less burdensome for the bureaucrats who want to drive policy to make their jobs easier, not necessarily improve the public’s ability to have a say in the decision-making process. 

Utilities would love to end the publication of notices that draw attention to rate increases or efforts to build new power plants. Owners of confined-feeding operations would welcome an end of any requirement to notify Hoosiers of plans to expand or open new operations in the state. The fewer people who see the notices, the less chance anyone will show up to a hearing to object. 

The predisposition to favor bureaucratic ease over newspaper publication could arise in a judicial administration decision concerning public notices. Only one member of the task force, other than I, spoke in favor of newspaper publication of court notices – Indiana Court of Appeals Judge Paul Mathias. 

Chief Justice Rush made it clear that no immediate action was planned concerning the publication of notices, but the message was more a question of when, not if, the publication requirement should be evaluated.