By Dennis Hetzel, Executive Director
The Ohio Supreme Court recently issued a unanimous decision that provides some support for an argument we have been making for a long time: Government-run websites aren’t good enough ways to inform people about public notices.
The case, PHH Mortgage Corp. v. Prater, also has some nuances for newspapers that are important to understand.
The case arose from a sheriff’s sale of a foreclosed property in Clermont County. Those with direct interest in a sheriff’s sale, such as an attorney for a mortgage corporation, are entitled to receive notice in writing of the specific time, date and location of a scheduled sale.
The sale was postponed several times at the request of the mortgage company attorney. At the time of the third scheduled sale, the sheriff sent a letter stating that due to “ever-increasing costs,” the office was discontinuing the practice of sending sheriff’s sale property advertisements directly to attorneys. Instead, the attorneys could check for themselves at the sheriff’s department’s website, www.clermontsheriff.org.
No written notice went to the mortgage company or the attorney for the fourth sale, and the property was sold. PHH sued to void the purchase, saying that they hadn’t received proper notice to protect their interests. The Ohio Supreme Court agreed, overturning the appeals’ court. The court said that giving notice “via a sheriff’s office website is simply not sufficient or reasonably calculated to provide actual notices to all non-defaulting parties.”
The Court also noted that many rural and older residents lack high-speed Internet access, saying that “(a) notice that misses 30 to 40 percent of its intended audience does not constitute the notice our Constitution demands when property is in jeopardy.”
The Cincinnati Enquirer noted that several advocacy groups, including Pro Seniors and the Legal Aid Society of Columbus, urged the Supreme Court to overturn the ruling.
An important nuance is this: The court clearly said that newspaper notice also would be insufficient in terms of contacting the directly interested parties. Even so, I believe this case is important for newspapers as well as ironic, as you shall see.
First, as noted above, this reaffirms that government websites cannot function as the sole place for public notices. “Public notice” is about informing people. Some governmental bodies view notices, whether by mail or placed in newspapers, as mainly hassles that cost them money. The financial pressures they face only enhance this. While one can sympathize with Clermont County’s sheriff dealing with multiple cancellations of a sheriff’s sale, that’s not a good enough reason to skip a step.
As your lobbyist, I often deal with politicians who think that it would be just fine to have all public notices only on government websites. “Good enough,” they say. Senate Bill 234, which is still pending but inactive, would allow all notices of sheriff’s sales to only appear on government websites. The bill is supported by some banking and mortgage interests that ultimately pay the cost of the newspaper notices in the closing of the sale.
Here’s the irony: As this case demonstrates, the banks and mortgage companies expect the sheriff — and the taxpayers – to do what it takes to fully communicate with them, but when it comes to informing the public that houses are going up for sheriff’s sales in neighborhoods, that’s different.
Give me a break.
Government websites will never have the audience reach of local newspapers and their websites. Nor do they offer the third-party credibility and security that we provide by printing and posting public notices. The ONA has strong research that demonstrates the public wants and expects notices in newspapers. You can download and distribute our handout using the link below.
Meanwhile, local governmental bodies loudly complain that they don’t have enough money to carry out their duties. We deal with this frequently in public records legislation. Some bodies want to turn public records into profit centers by charging for information that the public owns and already has funded with their tax dollars. One idea being floated would be to let citizens see public records for free on the Internet but charge them if they try to print a document.
Maybe you are sympathetic to these funding concerns. However, there are appropriate ways and inappropriate ways to operate. End-running statutory requirements or blocking citizen access to information isn’t the answer.
That is why we urge newspapers that still are referring to “public notices” as “legal notices” in their classified columns to change the title. The term “public notices” serves as an important reminder that these are notices for the public, not just for a handful of interested parties.