When is a newspaper considered "published and of general circulation"

Asked February 25, 2020, 9:26 AM EST

Oshtemo township is expanding their sewer system. The township intends to issue "Limited Tax General Obligation" bonds (LTGO), aka "Non-voting bonds", which require a "notice of intent to sell bonds and resident right of referendum" to be published in a quarter page ad in the local "newspaper". In Oshtemo, the Kalamazoo Gazette is the only available "newspaper" that fits the Michigan statutory definition. That definition requires "general circulation" but never defines what "general circulation" is. The Gazette delivers the paper to subscribers on Tuesday, Thursday and Sunday, so it obviously fits the definition on those days. Oshtemo placed the notice in Monday's edition, which is not delivered to subscribers but it is printed and certain stores have them available for purchase. Other townships do allow notices in free publications that aren't delivered to anyone. These notices are meant to satisfy the Due Process requirement of the US Constitutions's 14th amendment. In 1976, in Dow vs State of Michigan, the Michigan Supreme Court decided that sometimes a simple notice in the newspaper is not sufficient notice to satisfy Due Process even though that's all that is required by statute. Even though that was a different kind of case, is the intent of the statement still applicable? Although publishing the notice on a day when the paper is not delivered to subscribers seems to be legally sufficient to satisfy the statute, is it adequate to satisfy Due Process? Do subscribers who receive the paper every day it's delivered have a reasonable expectation that notices will be placed in issues they receive? Did Oshtemo deny Due Process to all the subscribers?
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Kalamazoo County Michigan

1 Response


As I was reading your question I was thinking "this sounds like a legal question." I can't offer a legal opinion as to whether the newspaper and circulation schedule satisfies due process, but I can share that there is actually a Publication of Notices in Newspapers Act, PA 247 of 1963, being MCL 691.1051 (see http://legislature.mi.gov/doc.aspx?mcl-691-1051). The act, in its entirety, is reproduced below:

691.1051 Newspaper; definition; publication of notices.

Sec. 1. The term “newspaper” as used in any statute of this state, except the revised judicature act of 1961 relative to the publication of a notice of any kind, shall be construed to refer only to a newspaper published in the English language for the dissemination of local or transmitted news and intelligence of a general character or for the dissemination of legal news, which

(a) has a bona fide list of paying subscribers or has been published at not less than weekly intervals in the same community without interruption for at least 2 years, and

(b) has been published and of general circulation at not less than weekly intervals without interruption for at least 1 year in the county, township, city, village or district where the notice is required to be published. A newspaper shall not lose eligibility for interruption of continuous publication because of acts of God, labor disputes or because of military service of the publisher for a period of not to exceed 2 years and provided publication is resumed within 6 months following the termination of such military service,

(c) annually averages at least 25% news and editorial content per issue. The term “news and editorial content” for the purpose of this section means any printed matter other than advertising. If no newspaper so qualifies in the county where the court is situated, the term “newspaper” shall include any newspaper in an adjoining county which by this act is qualified to publish notice of actions commenced therein.

Thanks for sharing the case law!