[1994/oagheade.htm]

OAG 94-9

February 25, 1994

Mr. Gene A. Clabes

Editor and Publisher

Recorder Newspapers

7736 U.S. 42, Suite D4

Florence, Kentucky 41042

Re: Whether Campbell County Circuit Court Master Commissioner Must Place Advertisements of Commissioner's Sales in Campbell County Recorder Newspaper.

Dear Mr. Clabes:

First, my apologies for the long delay in responding to your request.

By letter of December 15, 1992, you asked, in substance, that this office advise whether a sale conducted by the Campbell County Master Commissioner must be advertised in the Campbell County Recorder, which, your letter indicates, is the "legally recognized paper of record in Campbell County."

In our view, sales conducted by the master commissioner of the Campbell Circuit Court, unless otherwise agreed by the parties, or unless the appraised value of the property to be sold is less than $100, must be advertised in the Campbell County Recorder newspaper. KRS 426.560, 424.110(1), 424.120(1). Discussion follows.

Master Commissioner Sales Must Be Advertised in a Newspaper

Sales carried out by a master commissioner are "sales of property under execution, judgment or decree." Accordingly, master commissioner sales must be advertised in keeping with KRS 426.560, which provides:

In addition to the notices now required by statute to be posted, all public sales of any kind of property sold under execution, judgment or decree, shall, unless otherwise agreed upon by the parties, be advertised by publication pursuant to KRS Chapter 424. The advertisement shall state the time, place and terms of sale and describe the property to be sold. The newspaper advertisement shall not be necessary where the appraised value of the property to be sold is less than one hundred dollars($100).

(Emphasis added.)

From a review of KRS chapter 424, we believe that "publication pursuant to KRS Chapter 424," as provided by KRS 426.560, above, means (1) publication in a particular "publication area" (KRS 424.110(1)), and (2) publication in a qualified newspaper (KRS 424.120(1)).

Publication Area

"Publication area," for purposes of KRS chapter 424, is defined in KRS 424.110 as follows:

(1) "Publication area" means the city, county, district, or other local area for which an advertisement is required by law to be made. An advertisement shall be deemed to be for a particular city, county, district, or other local area if it concerns an official activity of the city, county, district, or other area or of any governing body, board, commission, officer, agency, or court thereof, or if the subject of the advertisement concerns particularly the people of the city, county, district or other area[.]

(Emphasis added.)

A master commissioner is an officer of the circuit court of a county (KRS 31A.010). It follows that in conducting sales, a master commissioner is conducting an official activity of the circuit court of a county. Under the language of KRS 424.110(1) emphasized above, the "publication area" within which an advertisement is required by law to be made by a master commissioner (KRS 426.560), is the particular county in which the circuit court a master commissioner serves is located.

Qualification of Newspaper, Publication in Publication Area

Having determined, on the basis indicated above, that the "publication area" for which an advertisement of a master commissioner's sale is required by law to be made is the county in which the circuit court a master commissioner serves is located, the question remains as to which newspaper meets the requirements imposed in KRS 424.120, which provides:

(1) Except as provided in subsection (2) of this section, whenever an advertisement for a publication area is required by law to be published in a newspaper, the publication must be made in a newspaper that meets the following requirements:

(a) It shall be published in the publica- tion area. A newspaper shall be deemed to be published in the area if it maintains its principal office in the area for the purpose of gathering news and soliciting advertisements and other general business of newspaper publications, and has a second class mailing permit issued for that office. A newspaper published outside of Kentucky shall not be eligible to carry advertisements for any county or publication area within the county, other than for the city in which its main office is located, if there is a newspaper published in the county that has a substantial general circulation throughout the county and that otherwise meets the requirements of this section; and

(b) It shall be of regular issue and have a bona fide circulation in the publication area. A newspaper shall be deemed to be of regular issue if it is published regularly, as frequently as once a week, for at least fifty (50) weeks during the calender year as prescribed by its mailing permit, and has been so published in the area for the immediately preceding two-year period. A newspaper meeting all of the criteria to be of regular issue, except publication in the area for the immediately preceding two-year period, shall be deemed to be of regular issue if it is the only paper in the publication area and has a paid circulation equal to at least ten percent (10%) of the population of the publication area. A newspaper shall be deemed to be of bona fide circulation in the publication area if it is circulated generally in the area, and maintains a definite price or consideration not less than fifty percent (50%) of its published price, and is paid for by not less than fifty percent (50%) of those to whom distribution is made; and

(c) It shall bear a title or name, consist of not less than four (4) pages without a cover, and be of a type to which the general public resorts for passing events of a political, religious, commercial, and social nature, and for current happenings, announcements, miscellaneous reading matter, advertisements, and other notices. The news content shall be at least twenty-five percent (25%) of the total column space in more than one-half (1/2) of its issues during any twelve-month period.

(d) If, in a publication area there is more than one (1) newspaper which meets the above requirements, the newspaper having the largest bona fide paid circulation as shown by the average number of paid copies of each issue as shown in its published statement of ownership as filed on October 1 for the publication area shall be the newspaper where advertisements re- quired by law to be published shall be carried.

(e) For the purposes of KRS Chapter 424, publishing shall be considered as the total occurring processes of producing the newspaper, embracing all of the included contents of reading matter, illustrations, and advertising enumerated in paragraphs (a) through (d) of this subsection. A newspaper shall not be excluded from qualifying for the purposes of legal publications as provided in this chapter if its printing or reproduction processes take place outside the publication area.

(2)(a) If, in the case of a publication area smaller than the county in which it is located, there is no newspaper published in the area, the publication shall be made in a newspaper published in the county that is qualified under this section to publish advertisements for the county. If the qualified newspaper publishes a zoned edition which is distributed to regular subscribers within the publication area, any advertisement required by law to be published in the publication area may be published in the zoned edition distributed in that area.

(b) If, in any county there is no newspaper meeting the requirements of this section for publishing advertisements for that county, any advertisements required to be published for the county or for any publications area within the county shall be published in a newspaper of the largest bona fide circulation in that county published in and qualified to publish advertise- ments for an adjoining county in Kentucky. This subsection is intended to supersede any statute that provides or contemplates that newspaper publication may be dispensed with if there is no newspaper printed or published or of general circulation in the particular publication area.

(3) If a publication area consists of a district, other than a city, which extends into more than one (1) county, the part of the district in each county shall be considered to be a separate publication area for the purposes of this section, and an advertisement for each separate publication area shall be published in a newspaper qualified under this section to publish advertisements for the area.

It is our understanding that the Campbell County Recorder meets the requirements set forth in KRS 424.120(1)(a), (b), and (c), and that it is the only newspaper in Campbell County which does so. We believe other provisions of KRS 424.120 are extraneous to the question involved here.

We understand that the Campbell County Recorder newspaper maintains its principal office for gathering news, soliciting advertisements, and other general business of newspaper publications (424.120(1)(a), above), in suite 27, 654 Highland Avenue in Ft. Thomas, which is in Campbell County, Kentucky. Additionally, it is our understanding that the Campbell County Recorder has a second-class mailing permit as issued by the U. S. Postal Service, for that office.

Other requirements set forth in KRS 424.120 are among those that must be satisfied in order for a newspaper to obtain a second-class mailing permit from the U. S. Postal Service. It thus appears that the Campbell County Recorder newspaper "shall be deemed to be published in the publication area," here Campbell County. KRS 424.120(1)(a). Should it become necessary, see the eligibility requirements for a second-class mail permit as set forth in the Service's Domestic Mail Manual.

For the reasons indicated above, in our view, the Master Commissioner of the Campbell Circuit Court is required to advertise master commissioner sales in the Campbell County Recorder newspaper unless otherwise agreed upon by the parties, or unless the appraised value of the property to be sold is less than $100. KRS 426.560, KRS 424.120(1).

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General