State Supreme Court proposal threatens public notices


A new threat from an unexpected source has emerged against the concept of public notice distributed through newspapers.

The Rules Committee of the Indiana Supreme Court will consider the use of its website as the posting point for public notices connected to court actions while eliminating the requirement for those notices to be published in local newspapers.

If the Supreme Court adopts this proposal, Hoosiers would no longer find public notices concerning the opening of estates, petitions to change names, notice of divorces, notices to parties to lawsuit that the plaintiff can’t locate, etc., in their newspaper. They would be expected to peruse a website on a periodic basis to learn about any legal action that might impact them, other family members, friends, employees, co-workers, and neighbors.

The change ignores the reason newspapers have been used as the conduit for public notices – to give citizens the best chance of learning about an action to be taken by their government.

This would be a radical change from a practice that has been in place since 1665 with the first English language newspaper – the Oxford Gazette. Later renamed the London Gazette, this newspaper carried notices from the King’s Court and from public officials in London and outlying regions.

Like other aspects of the United States legal system, public notice is modeled after the British system. Throughout colonial times, state governments turned to newspapers to publish notices and the new federal government followed suit in 1789. The Acts of the first session of U.S. Congress required the Secretary of State to publish all “bills, orders, resolutions and congressional votes” in at least three publicly available newspapers.

Public notices have served a vital role to preserve the right of due process guaranteed by federal and state constitutions. Due process protects American’s fundamental rights from arbitrary or wrongful violation and affords citizens an opportunity to be heard before the state’s judicial system restricts those rights.

In Indiana, the publication of public notices predates statehood. Territorial Governor William Henry Harrison offered $500 to a printer who would start a newspaper in Vincennes so that he could disseminate the laws of the territory. New Jersey native Elihu Stout accepted the challenge, transporting a printing press by boat and ox cart to the territorial capitol and printing the first edition of the Indiana Gazette on July 4, 1804 – fifteen years before Indiana became a state. Today’s Vincennes Sun-Commercial traces its lineage to Stout’s newspaper.

The idea to replace newspaper publication with Supreme Court website posting first surfaced during the last meeting of the Indiana Supreme Court Task Force on Access to Public Records, chaired by Chief Justice Loretta Rush.

Apparently, the state of Alaska uses this process for the court’s public notices, but I’m not aware of any other state taking this approach. The only reason articulated in that Task Force meeting for making the change was the cost of publication.

It would be interesting if we could determine how much publication costs have increased over time compared to how much court costs and fees have increased.

The change ignores the reason newspapers have been used as the conduit for public notices – to give citizens the best chance of learning about an action to be taken by their government.

People don’t read newspapers necessarily for public notices, but they discover the notices while reading stories about their communities. As former AIM publisher Chuck Wells would explain, it’s like going to the mall to buy a pair of shoes and discovering that another store has a sale on blue jeans.

HSPA doesn’t oppose the Supreme Court posting notices on its website. While it may be duplicative of our website, the more places notices are available – the better for Hoosiers. Eliminating the publication requirement in newspapers doesn’t improve the public’s opportunity to be informed, but diminishes it.

There will be a public comment opportunity before the Supreme Court acts upon any rule change concerning the public notices it controls. HSPA will keep you posted as to that opportunity if this proposal moves forward.