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Catoosa County v. Rome News Media

Court of Appeals of Georgia, Fourth Division

March 5, 2019

CATOOSA COUNTY, GEORGIA, et al.
v.
ROME NEWS MEDIA d/b/a CATOOSA COUNTY NEWS.

          DILLARD, C. J., DOYLE, P. J., and MERCIER, J.

          DILLARD, CHIEF JUDGE.

         Catoosa County, Georgia, and three county officials acting in their official capacities[1] (collectively, "Catoosa County" or the "County") appeal the trial court's grant of declaratory and injunctive relief to Rome News Media, LLC, d/b/a Catoosa County News ("CCN"), which sued the County to enjoin it from changing the official legal organ of the County from CCN to the Chattanooga Times Free Press ("Chattanooga Times"). According to CCN, taking such an action would violate OCGA § 9-13-142 et al., which sets forth the eligibility requirements a newspaper must satisfy to be designated as the official legal organ of a Georgia county. For the reasons set forth infra, we affirm.

         Rome News Media-a publishing company located outside of Catoosa County in Rome, Georgia-publishes several newspapers, including CCN, which is a weekly newspaper that has been the official legal organ for Catoosa County since its creation in 1949. And since 1992, CCN has been physically located within Catoosa County in Ringgold, Georgia, where it has several employees, including a full-time editor and advertising sales representative, as well as two part-time reporters and a part-time sports editor. The editor of CCN is responsible for "operating the news side of the newspaper[, ]" and once he determines the content and design of each paper, he then sends it to Rome for processing and printing. But the decision-making for what stories are to be written and by whom, and the layout of the stories in the paper, occurs in Ringgold. In addition, the commercial advertisements for the newspaper are solicited from CCN's Ringgold office. The legal notices, on the other hand, are not solicited because they are required by statute. Specifically, these legal notices include, inter alia, notices to the public of foreclosures, adoptions, alcohol-pouring licenses, and businesses filing articles of incorporation. All of the newspapers published by Rome News Media, including CCN, are members of the Georgia Press Association.[2]On November 30, 2017, Catoosa County's probate judge, sheriff, and clerk of court, passed a resolution changing the legal organ of Catoosa County from CCN to the Chattanooga Times with an effective date of January 1, 2018.[3] The Chattanooga Times is a daily newspaper that serves the metropolitan area of Chattanooga, which includes some counties in north Georgia and Alabama. And the north Georgia area, which includes Catoosa County, is a significant portion of the Chattanooga Times's service area. Indeed, out of approximately 60, 000 subscribers to the Chattanooga Times's Sunday newspaper, 13, 000 subscribers live in Georgia and 5, 000 of those subscribers live in Catoosa County. The Chattanooga Times offers various subscription options for a range of prices, including options to receive the paper daily, weekly on Wednesdays, only on Sunday, or only on weekends (i.e., Friday, Saturday, and Sunday). Additionally, the Chattanooga Times has two reporters solely dedicated to reporting news from Catoosa County and north Georgia, one of whom is a resident of the County. Since 2005, the Chattanooga Times has also leased a distribution center in Ringgold with employees who live in Catoosa County. But before the newspaper is distributed, the articles written by the Chattanooga Times's reporters assigned to the north Georgia area are sent to Chattanooga, where the newspaper is edited, published, and printed.[4]

         In the years prior to the passage of the November 2017 resolution, the section of CCN that included the legal advertisements was distributed for free to every household in the County. But when CCN decided to cease distributing this portion of the newspaper at no charge, the County sheriff, probate judge, and clerk of court became concerned that, depending on CCN's distribution rates, fewer residents would have access to the legal advertisements. Given these concerns, the County officials met with representatives of CCN, who explained that publishing the free weekly newspaper was no longer cost effective, and CCN could not stay viable and continue to publish the free newspaper. According to the sheriff, the decision to change the County's legal organ to the Chattanooga Times was based solely on an effort to provide access to the legal advertisements to as many residents of Catoosa County as possible. And in the time leading up to the passage of the resolution, the County's probate judge reviewed the relevant statutes and determined that the Chattanooga Times satisfied the statutory eligibility criteria to be the official legal organ of Catoosa County. In connection with passing the resolution, the same Catoosa County officials issued a press release and published a legal notice in the CCN, informing the public of the change and providing several reasons for their decision.

         On December 12, 2017, CCN filed a complaint against Catoosa County for a temporary restraining order, an interlocutory and permanent injunction, a declaratory judgment, and a writ of mandamus.[5] Specifically, CCN sought a temporary restraining order and an interlocutory and permanent injunction, preventing the County from changing its official legal organ from CCN to the Chattanooga Times on January 1, 2018, as planned. CCN also requested a declaratory judgment that it is the only newspaper currently published in Catoosa County, that the Chattanooga Times is not published in Catoosa County, and that the Chattanooga Times had not been published in the County for the previous two years. As to the writ-of-mandamus claim, CCN sought a court order compelling the individual county-officer defendants to rescind their designation of the Chattanooga Times as the legal organ of Catoosa County and to reinstate CCN as same.

         Following a hearing, the trial court granted CCN's request for a temporary restraining order and enjoined the County from taking any action that would change the status quo with respect to all matters at issue in CCN's complaint. The trial court further ordered that the restraining order remain in effect until it conducted the interlocutory hearing and issued a subsequent order. Thereafter, the County filed its answer to the complaint, asserting numerous affirmative defenses. CCN then filed a motion for an interlocutory and permanent injunction, writ of mandamus, and declaratory judgment, essentially requesting that the temporary relief already granted become permanent. Ultimately, after holding a hearing on the matter, the trial court issued an order granting the permanent injunctive and declaratory relief requested by CCN. In doing so, the trial court concluded that the Chattanooga Times was statutorily ineligible to be the official legal organ of Catoosa County because, unlike CCN, it is not published in the County. This appeal follows.

         The interpretation of a statute is a question of law, which is "reviewed de novo on appeal."[6] And when only a question of law is at issue, we owe "no deference to the trial court's ruling and apply the 'plain legal error' standard of review."[7] With these guiding principles in mind, we turn now to the County's sole claim of error.

         Specifically, the County argues that the trial court erred in its interpretation of OCGA § 9-13-142 when it determined that the Chattanooga Times is not published in Catoosa County. We disagree.

         When interpreting any statute, we necessarily begin our analysis with "familiar and binding canons of construction."[8] In considering the meaning of a statute, our charge as an appellate court is to "presume that the General Assembly meant what it said and said what it meant."[9] Toward that end, we must afford the statutory text its plain and ordinary meaning, [10] consider the text contextually, [11] read the text "in its most natural and reasonable way, as an ordinary speaker of the English language would, "[12] and seek to "avoid a construction that makes some language mere surplusage."[13] And when the language of a statute is "plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly."[14]

         Turning to the statute at hand, OCGA § 9-13-142 (a) provides, in relevant part:

No journal or newspaper published in this state shall be declared, made, or maintained as the official organ of any county for the publication of sheriff's sales, citations of probate court judges, or any other advertising commonly known in terms of "official or legal advertising" and required by law to be published in such county official newspaper unless the newspaper shall meet and maintain the following qualifications:
(2) The newspaper shall be published within the county and continuously at least weekly for a period of two years or is the direct successor of such a newspaper. Failure to publish for not more than two weeks in any calendar year shall not disqualify a newspaper otherwise qualified;
(3) For a period of two years prior to designation and thereafter, the newspaper shall have and maintain at least 75 percent paid circulation as established by an independent audit. Paid circulation shall not include newspapers that are distributed free or in connection with a service or promotion at no additional charge to the ultimate recipient . . . .[15]

         And OCGA § 9-13-142 (a) (4) details how many copies per issue must be circulated within a county to be qualified to be that county's official legal organ, which is calculated based on the population of the county.[16] In sum, to be statutorily eligible to be the legal organ of Catoosa County, the Chattanooga Times must be "published" within Catoosa County and satisfy certain paid circulation requirements.

         The parties have stipulated, and CCN concedes, that the Chattanooga Times satisfies the paid circulation requirements delineated in OCGA § 9-13-142 (a) (4). Thus, the only issue before the trial court was whether the Chattanooga Times satisfies OCGA § 9-13-142 (a) (2)'s requirement that it be "published within the county" for the requisite period of time. And without referencing any dictionary definitions of the word "publish," any relevant legal authority other than the language of the statute itself, or even the general principles of statutory construction detailed supra, the trial court concluded that the Chattanooga Times was ineligible to be the official legal organ of Catoosa County because it is not published there. As previously noted, the County argues that the trial court erred in doing so.

         Except when considering a technical term or term of art in a particular industry, Georgia courts often begin by considering how a word has been defined in dictionaries to determine its plain and ordinary meaning.[17] And dictionary definitions of the word "publish" include the following:

"[t]o make publicly or generally known; to declare or report openly or publically; to announce . . . to propagate, disseminate . . . [;]"[18]
"[t]o announce in a formal or official manner[;] . . . to proclaim[;]"[19]
"[t]o bring under public observation or notice; to give public notice of[;] . . . to expose to public view[;]"[20]
"[t]o make generally accessible or available for acceptance or use; to place before or offer to the public, now spec. by the medium of a book, journal, or the like; to make generally available a description or illustration of (an archaeological find, a work of art, etc.)[;]"[21]
"[t]o come into public circulation; to be published[;]"[22]
"[t]o prepare and issue copies of . . . [a] newspaper . . . for distribution or sale to the public[;]"[23] and
"[t]o distribute copies (of a work) to the public[.]"[24]

         Of these definitions, the only one to reference newspapers specifically defines "publish" as the preparation and issuance of the newspaper for distribution or sale to the public.[25] And as discussed more fully infra, the Supreme Court of Georgia has adopted a definition of "publish" in the context of newspaper publishing similar to this one. To be sure, in the absence of this binding precedent, a court might (at least initially) reasonably determine that the plain and ordinary meaning of the word "publish" in OCGA § 9-13-142 (a) is simply to make the contents of a newspaper publicly known or to report that information openly and publicly. But in the context of OCGA § 9-13-142 (a), construing the phrase "published within the county" in this manner would essentially render it meaningless. Indeed, if a newspaper satisfies the circulation requirement of the statute, it would necessarily satisfy the requirement that it be published (i.e., made publicly known) within the county. And our Supreme Court recently reiterated the well-established principle of statutory construction that "courts should construe a statute to give sensible and intelligent effect to all of its provisions and should refrain, whenever possible, from construing the statute in a way that renders any part of it meaningless."[26]

         To this end, in Carter v. Land, [27] the Supreme Court of Georgia squarely addressed, albeit in a slightly different statutory context, [28] what it means for a newspaper to be published within a county.[29] Specifically, in Carter, which coincidentally also involved Catoosa County, our Supreme Court considered whether the Catoosa County Record was published within the county for the purpose of determining whether any newspaper was published there.[30]As to the underlying proceedings, after learning that certain county officials were seeking to designate the Dalton News as the official legal organ of Catoosa County, the owner of the Catoosa County Record brought an action against those officials, contending that, for a number of years, it had been the official organ and only organ of the County and published its legal advertisements in the County.[31] But the Catoosa County Record conceded that the "mechanical work of printing the paper" was done in Walker County, roughly two miles away from the Catoosa County line.[32] The Catoosa County Record argued that, because there was already an official legal organ published within the County, the Dalton News could not be designated as the official legal organ of Catoosa County because it was published in Whitfield County.[33] Nevertheless, the trial court rejected this argument and dismissed the case.[34]

         On appeal, our Supreme Court affirmed the trial court's judgment in Carter, identifying the issues as (1) whether the Catoosa County Record was "published within the county[, ]" and (2) if not, whether it was the nearest newspaper with the largest circulation in the County.[35] In addressing these issues, the Carter Court first noted that "[p]ublishing a newspaper, as contemplated by the General Assembly with reference to the statute in question, means something more than the mere distribution of a newspaper[, ]" or simply "having it entered at the post office for distribution."[36] The Carter Court then went on to explain that

[t]he intention of the General Assembly undoubtedly was to aid in building up the locality to be served by the newspaper advertisements. Students of Georgia history are well aware of the fact that Georgians have always possessed a great degree of local pride and determination to patronize home industry and to build up local institutions. That has been clearly shown by legislation in many instances throughout the history of the state. Keeping these facts in view, we think that act was meant to bring about, by as much as legislation could contribute, the encouragement of newspapers to own their local plant, or the payment of rent to owners of local real estate, or to encourage ...

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