N.D. law change allows digital newspaper editions to satisfy legal notice requirements

Sep. 25—FARGO — A change in North Dakota law that went into effect Aug. 1 allows electronic facsimiles of actual newspapers to satisfy requirements for publishing legal notices units of government use for notifying the public about a variety of things, from meeting times to sheriff auctions.

And now, all electronic editions of newspapers published in North Dakota by Forum Communications Co., which publishes The Forum, are able to satisfy the requirements for legal notices.

That's according to Devlyn Brooks, president of Modulist, an FCC subsidiary that processes community content used by FCC, including things like legal notices and obituaries.

Brooks said before the N.D. law change, some government entities were finding it increasingly difficult to satisfy rules requiring multiple publications of legal notices, given changes in how newspapers now publish information.

For example, The Forum, which used to publish a print version seven days a week, now publishes paper editions twice a week, on Wednesdays and Saturdays.

The Forum publishes an electronic version of the paper, known as the e-edition, every day of the week.

Brooks said the law change approved by the 2023 North Dakota Legislature specifically states that e-editions of an established newspaper may satisfy publication rules for legal notices, which prior to the law change required that notices be published in an actual newspaper.

Brooks underscored that while the new law views the e-edition of a newspaper as the equivalent of a print edition, that is only the case if an e-edition is a facsimile of a printed newspaper.

"So, an upstart website couldn't come in and bid for the legals for the city of Fargo, or bid for the legals of Valley City," Brooks said.

Brooks acknowledged that while legal notices provide "a public good" by giving citizens access to information disseminated by government entities, they also represent an important source of revenue for newspapers.

According to Brooks, the aim of the new legislation was two-fold: "Support newspapers but also support the freedom of information for the state's residents."

Jack McDonald, an attorney for the North Dakota Newspaper Association who specializes in transparency laws, said the change in North Dakota law was made in the wake of a legal opinion issued in July of 2021 by the late Wayne Stenehjem, who was North Dakota's attorney general at the time.

In answer to an inquiry from the Horace city attorney's office, which had asked whether online publications of legal notices satisfied legal notice requirements for political subdivision notices, Stenehjem said it was his opinion that an official newspaper of a political subdivision must be printed to qualify under state law.

"It is reasonably clear from the related statutes and legislative history that the Legislature did not intend for official newspapers to be entirely online and unavailable in print, nor did it intend for legal notices to be provided entirely online," Stenehjem wrote in his opinion.

"Legal notices for political subdivisions are required to be printed in the official newspaper of the political subdivision. It follows that if official newspapers cannot be entirely online, neither can legal notices," Stenehjem added.

McDonald said even though every newspaper in North Dakota still publishes at least one printed edition a week, it was becoming difficult for government entities to meet notice requirements given Stenehjem's opinion that online legal notices did not satisfy North Dakota law.

"It (the law change) does recognize that newspapers are trying to move in new directions. They're going to do what the public wants," McDonald added.

Forum Communications operates four newspapers in North Dakota that serve as official newspapers for government entities for the purpose of publishing legal notices — The Forum, The Grand Forks Herald, the Jamestown Sun and The Dickinson Press.