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Marcus News, Inc. v. O'Brien County Board of Supervisors

Supreme Court of Iowa

November 15, 2019

MARCUS NEWS, INC., Appellant,
v.
O'BRIEN COUNTY BOARD OF SUPERVISORS, Appellee, and IOWA INFORMATION, INC. Intervenor-Appellee.

          Appeal from the Iowa District Court for O'Brien County, David A. Lester, Judge.

         Plaintiff appeals decision of the district court affirming designation of two newspapers owned by intervenor as the official county newspapers for publication of official proceedings.

          Ray H. Edgington and Colby M. Lessmann of Vriezelaar, Tigges, Edgington, Bottaro, Boden & Ross, LLP, Sioux City, for appellant.

          Jeff W. Wright and Jacob B. Natwick of Whorley Heidman Law Firm, L.L.P., Sheldon, for intervenor-appellee.

          Keith P. Duffy and Joseph A. Quinn of Nyemaster Goode, P.C., Des Moines, for amicus curiae Iowa Newspaper Association.

          APPEL, JUSTICE.

         In this case, we consider the meaning of a statute governing the manner in which county boards of supervisors select official newspapers for publication of governmental notifications within counties with populations of less than 15, 000 people. The central question in the case is how to determine whether newspapers under common ownership and published in the same city can be considered offered for sale or delivered "in the same geographic area" under Iowa Code section 349.6 (2017).

         In this case, the O'Brien County Board of Supervisors (Board) determined that the Sanborn Pioneer and the O'Brien County's Bell-Times-Courier, two newspapers under common ownership and published in the same city, could not be combined for purposes of determining circulation because the publications were not offered for sale or delivered in the same geographic area. As a result of this determination, the newspapers were not selected as official newspapers for O'Brien County.

         The disappointed publications appealed the decision of the Board to the district court. The district court affirmed, and the publications appealed. For the reasons expressed below, we affirm.

         I. Factual and Procedural Background.

         A. Legal Framework.

         Under Iowa law, the board of supervisors in a county with less than 15, 000 people is required to select two newspapers for official publications. See Iowa Code §§ 349.1, .3(1). Where more than two newspapers apply to be an official publication, the matter is deemed a contested matter and a hearing is held before the board of supervisors. Id. § 394.4.

         Prior to the hearing, the applicants are required to submit to the county auditor sealed envelopes containing statements verified by the applicants. Id. § 349.5. A verified statement must show "the names of the applicant's bona fide yearly subscribers living within the county and the place at which each such subscriber receives such newspaper, and the manner of its delivery." Id.

         Once the affidavits are received, the board of supervisors holds its hearing. The statute requires the board of supervisors to select the two newspapers based on those with the largest number of bona fide yearly subscribers. Id. § 349.6. The board determines the bona fide yearly subscribers of a newspaper based upon those who receive the publication by mail or otherwise, who have been subscribers "at least six consecutive months prior to the date of application." Id. § 349.7(1). Similarly, for publications regularly delivered by carriers, subscribers are considered bona fide yearly subscribers if the publication has been delivered "at least six consecutive months before the date of application." Id. § 349.7(2). Finally, when newspapers are purchased for resale by independent publishers, the subscribers are determined from the independent publishers list of their subscribers. Id.

         Under Iowa Code section 349.6, newspapers under common ownership and published in the same city are permitted to be combined for purposes of determining circulation under two circumstances. First, such newspapers may be combined when the publications have "approximately the same subscriber list." Id. In the alternative, however, such newspapers may be combined for purposes of calculating bona fide yearly subscribers when "offered for sale in or delivered to the same geographic area." Id.

         After the board makes its official selection, an applicant may, within twenty days, appeal the decision of the board to the district court. Id. § 349.11. The auditor is directed to "file with the clerk of the district court a transcript of all the proceedings before the board [of supervisors], together with all papers filed in connection with [the] matter." Id. § 349.12. The appeal is triable de novo as an equitable proceeding without formal pleading after twenty days following the filing of the transcript. Id. § 349.13.

         B. Proceedings Before the Board.

         Marcus News, Inc. (Marcus News) publishes two newspapers, the Sanborn Pioneer and the O'Brien County's Bell-Times-Courier, in Paullina, Iowa. Similarly, Iowa Information, Inc. (Iowa Information) publishes two newspapers, the N'West Iowa REVIEW and the Sheldon Mail-Sun, in Sheldon, Iowa. All four publications meet the requirements for official publications under Iowa Code section 618.3.

         Marcus News and Iowa Information both submitted applications to the Board requesting that their newspapers be selected as official county publications. Marcus News submitted its two newspapers for consideration as one newspaper under Iowa Code section 349.6. Iowa Information submitted separate applications for each of their above-listed newspapers.

         On January 7, 2018, Marcus News submitted a combined verified statement regarding the Sanborn Pioneer and the O'Brien County Bell-Times-Courier. Id. § 349.5. The following day, Iowa Information submitted a verified statement regarding the N'West Iowa REVIEW and the Sheldon Mail-Sun. The statements revealed the following circulation numbers:

Publication

Circulation

N'West Iowa REVIEW

1, 146

Sheldon Mail Sun

784

O'Brien County's Bell-Times/Sanborn Pioneer combined

814


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