May/June 2018 Issue

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New Laws Modify Requirements for Publishing Legal Notices

Brian P. Goodman | 05.29.18

Wis. Stat. Ch. 985 provides requirements for municipalities publishing or posting legal notices. Two new laws took effect April 18, 2018 that modify this chapter of the Wisconsin Statutes, regarding the publication of legal notices in newspapers. 2017 Wisconsin Act 282 modifies the qualifications for newspapers that receive payment for such publication. 2017 Wisconsin Act 353 provides an alternate publication option for Class 2 and Class 3 legal notices. 

Changes to the Required Qualifications of Newspapers that Publish Legal Notices

In order for a municipality to satisfy the legal requirements for publishing required legal notices in a newspaper, that newspaper must be qualified. 2017 Wisconsin Act 282 makes it easier for newspapers to be qualified in light of increased consolidations and mergers in the newspaper industry. Simultaneously, the new law more clearly excludes non-newspapers from being qualified. The new law defines a newspaper as a publication that is published at regular intervals and at least once a week, containing on average, 25 percent news content per issue. News content is defined as written information and images, other than advertisements, that are printed in a publication. To be a newspaper qualified to publish legal notices, the newspaper must file a certificate with the county clerk stating that it is qualified under Wis. Stat. Ch. 985 and stating its place of publication 

The liability for improper publishing lies with the person charged with the legal duty of causing legal notices to be published. If that person causes a legal notice to be published in a newspaper that is not qualified or fails to cause a legal notice to be published in a qualified newspaper, that person may be fined up to $100 for each offense. Each day in which a legal notice should have been published, but was not, counts as a separate offense. Even if a municipality publishes legal notices in a qualified newspaper, the municipality cannot publish in a non-qualified newspaper without risking a fine. 

In addition to filing that certificate, to be qualified to publish legal notices, a newspaper must have a bona fide circulation, meaning the publisher of the newspaper sells 50 percent or more of the circulation of the newspaper, and the publisher has actual subscribers at each publication of not less than 1,000 copies in 1^st and 2^nd class cities or 300 copies in 3^rd and 4^th class cities, villages, or towns. Additionally, the newspaper must meet one of the following criteria: 

• For at least 2 of the 5 years immediately before the date of the publication of the legal notice, the newspaper has been published regularly and continuously in the city, village, or town where published;
• The newspaper is a successor to a newspaper described in (i) above and the successor newspaper has resumed publication following succession within 30 days; or
• The newspaper has merged or consolidated with one or more newspapers and one of the newspapers subject to the consolidation or merger has been continuously published at regular intervals of at least once each week for a least 50 issues each year for at least one year prior to the first publication of the notice.

If no newspaper in a city, village, or town satisfies these requirements (including the requirement of bona fide circulation), a newspaper will be qualified if it is published regularly and continuously in the city, village, or town and publishing in the newspaper is likely to give notice in the area or to the affected person and the newspaper is otherwise qualified. 

By law, a newspaper is ​“published” at the post office from which its mailing permit is issued. If the newspaper has no primary post office, then the newspaper must designate its place of publication. No newspaper can have more than one place of publication during the same period of time. 

If no qualified newspaper is published within the municipality, the publication of legal notices must be made in a newspaper likely to give notice. However, a ​“shopper” or other advertising publication that is less than 25% news content is not a newspaper, and publication of legal notices should not be made in such an advertising publication. 

New Option for Publishing Class 2 and 3 Legal Notices

Current law provides for the publication of three types of legal notices, Class 1, Class 2, and Class 3. A Class 1 notice requires one insertion in a newspaper which must be at least one week before the act or event. A Class 2 notice requires two insertions in a newspaper, once a week for consecutive weeks, the last of which must be at least one week before the act or event. A Class 3 notice requires three insertions in a newspaper, once a week for consecutive weeks, the last of which must be at least one week before the act or event. Certain statutes might provide for slightly different insertion requirements, but these are the default rules. 

2017 Wisconsin Act 353 creates a new publication option for certain Class 2 and Class 3 notices. With certain exceptions, a municipality may now publish a summary of the legal notice, in lieu of the entire legal notice, in the second and third insertions of a Class 2 or Class 3 notice. The summary must be accompanied by notice that the full text of the material included in the first insertion is available for viewing at all of the following locations: 

• As an electronic document on the municipalities website;
• In the newspaper in which the initial insertion was published;
• As an electronic document on the Wisconsin newspapers legal notices website; and,
• In a readily accessible physical location within the municipality.

Municipalities cannot publish summaries of legal notices required to be published by order of a court or for legal notices related to court proceedings required to be published. 

- Brian P. Goodman