The explosion of negative reaction to Mayor Murphy’s recent motion to post city legal notices on the city website instead of in the local newspaper obscures an important issue and that is, how are individuals to be notified of legal proceedings that might deprive them of their property and in some cases their personal liberty.

The Fifth Amendment to the United States Constitution states “nor shall [any person] be deprived of life, liberty, or property, without due process of law.” In this context, “due process” means that any governmental action must be fundamentally fair to the person who will potentially be harmed by it. Such fundamental fairness requires that the person receive reasonable (although not actual) notice of the proceedings against him. Similar safeguards are embedded in the Massachusetts Constitution and are implemented by various statutes of the Commonwealth.

For instance, Massachusetts General Laws chapter 244, section 14 which governs mortgage foreclosures requires that the party conducting the foreclosure give notice to the borrower and all others interested as follows:

no sale under such power shall be effectual to foreclose a mortgage, unless, previous to such sale, notice thereof has been published once in each of three successive weeks, the first publication to be not less than twenty-one days before the day of sale, in a newspaper, if any, published in the town where the land lies or in a newspaper with general circulation in the town where the land lies and notice thereof has been sent by registered mail to the owner or owners of record of the equity of redemption as of thirty days prior to the date of sale

Many other statutes require like notice of publication; just scan the last few pages of the local newspaper to get a sense of the wide variety of legal and governmental matters that require newspaper publication to comply with the law. I did just that for the week beginning Sunday, April 29 and ending Saturday, May 5. Here’s a breakdown of the legal notices appearing in the Lowell Sun during that seven day period:
 

• Mortgage foreclosures – 37
• Public meeting notices – 23
• Invitations to bid/RFPs – 11
• Juvenile Court notices – 5
• Probate Court notices – 7
• Sale of personal property – 4
• TOTAL ——————– 87

 
Whether intended or not, the Due Process question raised by Mayor Murphy’s motion is whether in a time of declining newspaper circulation, notice by publication in a newspaper satisfies the Constitutional Due Process requirements. The Supreme Court of Maine, in the 2009 case of Gaeth v. Deacon answered that question in the negative.

In Gaeth, the plaintiff received a $100,000 default judgment against the defendant, a former college student who had moved back home to Massachusetts after graduation but before the suit was filed. The defendant did not receive actual notice of the suit while he still had time to offer a defense. Rather, the plaintiff “served” the defendant with notice of the suit by publishing that notice in a local Maine weekly newspaper, all in accordance with Maine law.

In reversing the judgment in favor of the plaintiff, the Maine SJC concluded that “service by publication was not reasonably calculated to notify the defendant of the action and, although technically compliant with the rules, did not meet the requirements of due process.” and remanded the case back to the trial court to remove the default judgment. To be sure, the Maine court based its finding on the particular circumstances of this case and did not entirely overthrow the practice of service by publication. Still, the court’s language made clear its doubts about service by publication in a newspaper:

The practice regarding service by publication as a means to achieve notice of the commencement of a suit developed at a time when newspapers were the only means of print mass communication, and when newspapers were more widely and intensely read than is now the case.   Today, much has changed in the way of life that gave rise to the rules and practices regarding service by publication. . . Fewer people now read print newspapers, and those who do are likely to read them less intensely because an increasingly greater portion of the population obtains more of its information through television, the Internet, and other electronic media.   Further, the population is more mobile, making it less likely that a defendant’s relatives, friends, or acquaintances may see a notice by publication in a newspaper, report it to the defendant, and thereby give the defendant actual knowledge of the pendency of a suit.

When even the most stalwart defender of the local newspaper acknowledges that only 50% of Lowell residents get their news from the Sun, it begs the question, what about the other 50% of the population? How should they be notified of legal matters that effect them? Does a system that at its best only reaches half the population meet the Due Process requirements of the state and federal Constitutions? Until a case that raises that question makes it to the Massachusetts Supreme Judicial Court, we won’t know. But given that the SJC in the recent past has demonstrated a propensity to reach unexpected decisions in a variety of areas that many thought well settled, wouldn’t it be wise in the meantime to start exploring supplementary means of providing notice? The various statutes only set the minimum requirements. Why not start publishing legal notices generated by the city on the city’s own website in addition to whatever other publication is specifically required by the law. Such an extra step would cost nothing or next to nothing and it would establish a track record of using a local government website as a means of providing notice.