Wednesday, October 12, 2011

Johnson v. Metropolitan News (Cal. Ct. App. - Oct. 11, 2011)

Here's a good example of a nineteenth century statute in twenty-first century California.

Newspapers have to be certified as ones of "general circulation" in a locality in order to publish summons, notices of trustee sales, etc.  This perhaps made sense a century ago, when newspapers were the principal means of notifying the public of various important events.  Needless to say, that's no longer the case.  And even if it was, who actually reads those things -- those small print notices in the back of the paper.  No one.  You know it.  I know it.  The newspapers know it.

But the newspapers still get paid for running the things.  Which in turn creates incentives for newspapers to lobby to retain these archaic laws.  Plus creates an incentive structure that leads, for example, to the creation of the Metropolitan News in Los Angeles.  Maybe you've seen it.  You can get it for free in tons of different places.  Does anyone really read it?  No.  Unless you're totally bored and there's nothing else to do.  Does it contain any actual news?  Not really.  Just enough to plausibly claim that it's a true "newspaper" as required by the general circulation statute.  The vast majority of its content instead entails the statutory notices that no one reads.

Which is silly in the first place.  But it gets even sillier.

What newspaper might -- at least theoretically -- actually be read in Los Angeles?  How about the Wall Street Journal?  An actual newspaper with actual reporting.  So the WSJ petitions to get certified as a paper of general circulation in Los Angeles.  At which point Metropolitan News opposes the petition.  Because it's trying to protect the public?  Hardly.  Because the WSJ would be a competitor.  Metropolitan News alleges that the WSJ isn't a paper of general circulation in Los Angeles because it's a national newspaper rather than a local one, claiming that you can only have "one" certified location.  Essentially claiming that because lots of people read this newspaper, it's not good enough to provide notice.

Which is silly.  And, thankfully, the Court of Appeal rejects this contention.

But the statute is silly itself.  For example, the statute requires that the actual printing of the paper take place in Los Angeles.  Why?  No reason whatsoever.  This led Metropolitan News to argue that the WSJ wasn't a local paper because its reporters were located in New York rather than LA.  Again, who cares?  Moreover, in this particular case, the WSJ qualifies because it happens to have a production facility in Los Angeles.  But who cares?  Why should the statute require that?  As long as it's read in Los Angeles, that should be enough.

But even the existence of the statute is absurd at this point.  Should publication in a newspaper that we know no one actually reads be sufficient notice?  Maybe.  But it'd be just as effective -- and probably much more so -- to publish these things on that new-fangled thing called the internet.  Something that, last I checked, one or two people actually peruse.  Plus, the only people who actually read these notices are the firms who then follow up in trustee sale notices, etc.  Those entities would probably much rather prefer an electronic version rather than things in print anyway.  More importantly, it'd be much, much less expensive for litigants to print a notice on the internet than to buy a lengthy portion of a back page of a newspaper that no one reads but that the publisher prints and distributes just so it satisfies the required circulation numbers.

You'd think this would be a perfect thing for an entity like the Law Revision Commission to change.  An antiquated statute devoid of substance and completely inapt in the modern era.  And yet here we are in 2011.  With the same outdated, parochial statute.  Protected by lobbyists as well as the ability to petition in order to attempt to exclude competitors like the Wall Street Journal.