Southern Crescent Newspapers, L.P. v. Dorsey

Sears, Justice. The former legal organ of DeKalb County appeals the trial court’s denial of its request for injunctive and mandamus relief after the official designation of a new county legal organ, claiming that the legislature’s amendment of the statutory criteria required for legal organs should be applied retroactively to disqualify the newly-designated paper. We conclude that (1) the newly-designated paper satisfied the necessary criteria for legal organs at the time of its appointment, and (2) under our present statutory scheme, the official act of designating a new county legal organ was completed before the legislature amended the criteria for legal organs, and thus the amended criteria was not applicable. Therefore, we affirm. The facts of this case are somewhat unusual. From 1972 until 1997, Southern Crescent Newspapers, d/b/a the Decatur-DeKalb News/Era (“the News/Era”) served as the legal organ of DeKalb County. On December 27, 1996, The Champion Newspaper (“the Champion”), which has been published since 1991, formally expressed an interest in being designated to replace the News/Era as the county’s legal organ. At that time, the Code required that, in order to be designated as a legal organ, at least 85 percent of a newspaper’s circulation had to be comprised of paid circulations, and it must have been continuously published for at least two years.1 Evidence introduced in the trial court showed that, as of January 15, 1997, the Champion satisfied those criteria. Seven days later, the Champion officially applied for designation as the legal organ of DeKalb County. Under the Code, a county’s designated legal organ may only be changed upon the concurrent action of a majority of the county probate judge, sheriff, and clerk of superior court.2 On January 29,1997, a hearing was held before the DeKalb County Probate Judge, Sheriff, and Superior Court Clerk to hear the News/Era’s and the Champion’s presentations regarding their respective qualifications to serve as the county’s legal organ. At that hearing, it was requested that the Champion provide an independent circulation audit to show that it satisfied the Code’s 85 percent paid circulation requirement, and the Champion complied with that request shortly thereafter. On April 4, 1997, the County Sheriff and Superior Court Clerk issued a declaration “designating the Champion as legal organ of DeKalb County effective April 4, 1997 at 5:00 P.M.” (The County Pro — 42 — bate Judge previously had stated that he would dissent from that designation.) All interested parties were notified immediately of the Champion’s designation. The designating officials specified that the publication of official notices in the Champion would commence on May 1, 1997 (later changed to July 1, 1997). A mere ten days after the Champion’s designation, on April 14, 1997, the statute governing legal organs was amended to require that, in order to serve as a county legal organ, a newspaper must have maintained an 85 percent paid circulation for at least one year. On that same day, the News/Era filed the underlying action, claiming that because the Champion had an 85 percent paid circulation only for approximately four months before being designated, the amended law should be applied retroactively to disqualify it from publishing legal notices, and the officials should be compelled to designate the News/Era as DeKalb County’s legal organ. After an evi-dentiary hearing, the trial court denied the News/Era’s request for injunctive and mandamus relief, and upheld the Champion’s designation as legal organ. From that ruling, the News/Era brings this appeal. 1. On April 4, 1997, the date on which the Champion was declared to be the legal organ of DeKalb County, the Code dictated that: No journal or newspaper shall be declared or made the official organ of any county for the publication of. . . ‘official or legal advertising’ unless the newspaper shall have been continuously published and delivered to . . . paid bona fide subscribers in that county for a period of two years . . . and unless 85 percent of [its] circulation ... is paid circulation.3 On appeal, the News/Era argues that the trial court clearly erred in finding that the Champion had an 85 percent paid subscription at the time of its designation. Therefore, argues the News/Era, the Champion was ineligible under the statute, as it existed at the time of designation, to serve as DeKalb County’s legal organ. We disagree. The trial court’s finding that the Champion satisfied the Code’s 85 percent paid subscription requirement was based upon two convincing pieces of evidence. The first of these was a circulation verification report prepared by an independent professional auditing service that specializes in analyzing circulation figures for community-based publications. The authenticity of the verification report was stipulated to by both parties. That report showed that, at the time of its designation, 89.9 percent of the Champion’s distribution was — 43 — through paid subscriptions. The second piece of evidence relied upon by the trial court was an audit prepared by the United States Postal Service to determine the Champion’s eligibility for second-class mail rates. It, too, showed that more than 85 percent of the Champion’s distribution was through paid subscriptions. This Court is bound by the trial court’s factual findings unless, based upon the evidence of record, those findings are clearly erroneous.4 Based upon the evidence of record discussed above, it is clear that the trial court’s finding that paid subscriptions constituted at least 85 percent of the Champion’s total circulation figures was not clearly erroneous, and we reject the News/Era’s contrary assertion.5 2. Both before and after its amendment, OCGA § 9-13-142 (c) provides that: No change shall be made in the official organ of any county except upon the concurrent action of the judge of the probate court, the sheriff, and the clerk of the superior court of the county or a majority of the officers. As discussed above, on April 4, 1997, the DeKalb County Sheriff and Superior Court Clerk acted concurrently to designate the Champion as legal organ. Ten days later, the legislature amended section 9-13-142 (a)’s eligibility criteria for legal organs to require that, in order to serve as a legal organ, a newspaper must have maintained an 85 percent paid circulation for at least one year. While that amendment was enacted after the Champion’s designation, it also was enacted before the Champion was to commence publishing official legal notices. At the time of its designation, the Champion had maintained an 85 percent paid circulation for slightly less than four months. The News/Era argues that the amended eligibility criteria for legal organs should be applied retroactively to the Champion’s designation, rendering it ineligible to serve as DeKalb County’s legal organ, and nullifying its designation as improper. We disagree. — 44 — The News/Era bases its argument on this Court’s decision in Dollar v. Wind 6 But a careful reading of that opinion belies the News/Era’s reliance. In Dollar, as in this case, the legislature amended the eligibility criteria for legal organs after the Grady County sheriff declared that his office’s official notices would be published in a different newspaper, but before the newly-designated paper began publishing legal notices.7 This Court ruled that the amended eligibility criteria could be applied retroactively to disqualify the newly-designated newspaper. Unlike this case, though, in Dollar the statutory process for designating a new legal organ was incomplete when the legislature amended the eligibility criteria. The 1895 Code, in effect at the time of Dollar, contained only one provision regarding the official action required to designate a change in legal organs: “No . . . officer shall change the advertising connected with his office from one paper to another without first giving notice of his intention to do so in the paper in which his advertisements may have been published.”8 Thus, under the 1895 Code, the Grady County Sheriff’s declaration of a change in the county’s legal organ carried no legal significance whatsoever. Because the only action required by the 1895 Code to effectuate a change in legal organs — publication notice of the change — had not yet been completed, the Dollar Court treated the sheriff’s designation of the new paper as “a mere private declaration of an intention to make a change [in legal organs] in the future.”9 Since there had been no official change made in Grady County’s legal organ, the Dollar Court applied the amended statutory criteria to disqualify the newly-designated paper.10 However, our current Code differs greatly from that in effect at the time of Dollar. Unlike the 1895 Code, our current section 9-13-142 plainly states that a change in a county’s legal organ “shall be made . . . upon the concurrent action of the judge of the probate court, the sheriff, and the clerk of the superior court, or a majority of the officers.”11 Under our Code, so long as a designated newspaper satisfies the statutory eligibility requirements in existence at the time of designation,12 the designation of a new paper made by a majority of the responsible county officials “shall” result in a change — 45 — of legal organs.13 Hence, unlike the situation in Dollar, the official declaration that a new paper shall serve as legal organ is the official action that effectuates a change in legal organs. Once that action is taken by a majority of the responsible officials, a change in legal organs has been implemented. Accordingly, when the legislature amended the eligibility requirements ten days after the Champion was designated as DeKalb County’s legal organ, the county’s legal organ had already been changed. Put another way, the official action required by the Code to effectuate a change in legal organs was completed before the legislature added the new criterion for legal organs. Hence, the reasoning of Dollar simply does not apply, and the Champion was not required to satisfy the new criterion before it could become DeKalb County’s legal organ. As this Court has recently reiterated, “ ‘The only qualifications imposed by OCGA § 9-13-142 are those which must be met at the time of [a newspaper’s] designation as legal organ.’ ”14 The Champion met the requirements that existed at the time of its designation as legal organ, and it need not have satisfied additional requirements imposed thereafter, although those additional requirements will be considered in all designations made after the amendment became effective. This reasoning is entirely consistent with the language of the amendment to section 9-13-142 imposing additional criteria on papers that would serve as legal organs. That amendment states that it would only become effective upon being signed into law by the Governor, which occurred on April 14, 1997. Hence, the amendment applies to all designated changes in legal organs made after that date. The Champion’s designation, of course, occurred ten days before the Governor signed the amendment into law, and therefore the amendment, by its own terms, does not apply to that designation. 3. Similar to the 1895 Code, our current section 9-13-142 (both before and after its amendment) also requires that “No officer shall change the advertising connected with his [or her] office from one paper to another without first giving notice of his intention to do so in the paper in which his advertisements have previously been published.” In light of the mandatory language (enacted since the time of Dollar) of § 9-13-142 (c) that a change “shall” be made upon the concurrent action of a majority of the responsible county officials, we agree with the trial court that the statute’s notice provision is a ministerial function intended to inform the public of an impending — 46 — change in legal organs, and not a prerequisite to the validity of any official designation. This conclusion is in accordance with this Court’s previous ruling that the purpose of official legal advertisement is to provide adequate notice both to the parties involved in a dispute, and to the general public.15 This conclusion is bolstered when we consider the statute’s language that “no officer” shall change the advertising of his or her office without first publishing notice of that change. Of course, many county officials are required to publicly advertise the actions of their offices. For example, in addition to the sheriff, probate court clerk, and superior court clerk, the county coroner and the county state court clerk are authorized under statute to publish legal notices associated with their offices.16 Were we to conclude that publication notice of a change in the paper publishing legal advertisements is the benchmark for when a designated change in legal organs is effective, the official designation of a new county legal organ would be incomplete until at least five different county officials published individual notice of a change in their publication medium. In that situation, the failure of any one of those offices to make such a publication would prove fatal to the official designation of a new legal organ. We do not believe that the legislature intended to create such a contingent situation under OCGA § 9-13-142,17 and we agree with the trial court that the statutory requirement that notice of a change in legal organs be published is a ministerial duty. Obviously, the impact of this opinion is quite limited. It applies only to legal organs that were officially designated before OCGA § 9-13-142 was amended on April 14, 1997. All legal organs designated after that date, of course, must satisfy the amended statutory criteria. 4. In conclusion, we find that the trial court correctly found that the Champion satisfied the statutory criteria required of legal organs at the time it was appointed the organ for DeKalb County. We also find that because the statutory designation process already was complete when the legislature amended the criteria required of legal organs, the amended criteria is inapplicable to the Champion’s designation. For those reasons, the judgment of the trial court is affirmed. Judgment affirmed. All the Justices concur, except Hunstein, Carley and Hines, JJ, who dissent. Footnotes [1] OCGA § 9-13-142 (1993). [2] OCGA § 9-13-142 (c) (1993 and Supp. 1997). [3] OCGA § 9-13-142 (a) (1993). [4] Cannon v. Coweta County, 260 Ga. 56, 58 (389 SE2d 329) (1990). [5] The News/Era also argues that a large percentage of the Champion’s paid circulation actually consists of bulk copies delivered to advertisers and then distributed free of charge on an individual basis. While there was some evidence to suggest that the Champion does distribute part of its circulation in bulk deliveries, that evidence, standing alone, does not negate the factual bases for the trial court’s finding — the two independent professional circulation audits discussed above. Furthermore, this Court previously has indicated that there are various methods of determining what constitutes “paid circulation” within the context of OCGA § 9-13-142, and that the Code does not mandate one method over another. See Southeastern Newspapers Corp. v. Griffin, 245 Ga. 748, 749 (267 SE2d 21) (1980). Moreover, the third party professional audit of the Champion’s circulation figures was performed by a Certified Public Accountant using generally accepted accounting methods, lending further credence to its conclusions. See id. [6] 135 Ga. 760 (70 SE 335) (1911). [7] Under the then-existing law, only the sheriff was authorized to designate the paper in which his office’s official notices would be published. [8] Civil Code (1895) § 5460. [9] 135 Ga. at 763. [10] Id. [11] (Emphasis supplied.) OCGA § 9-13-142 (c). [12] See Atlanta Journal & Constitution v. Clarke, 269 Ga. 33 (497 SE2d 358) (1998); New Era Pub. Co. v. Guess, 231 Ga. 250, 254 (201 SE2d 142) (1973). [13] See OCGA § 9-13-142 (c). [14] Williams v. Athens Newspapers, 241 Ga. 274, 277 (244 SE2d 822) (1978); see Clarke, supra. See also Guess, supra. [15] Georgia Cracker v. Hesters, 193 Ga. 706, 708 (20 SE2d 7) (1942). [16] See OCGA § 9-13-140, Uniform State Court Rule 8.3. [17] See OCGA § 1-3-1 (a).