Isn't it Time to Bring "Notice by Publication" Statutes into the Twenty-first Century?

At the beginning of every year, journalists from media outlets large and small formulate a list of predictions for the year ahead. Since the dawn of the internet, many of these journalists have forecasted a decline in circulation of traditional print media such as newspapers and magazines, often divining the inevitable extinction of their profession and the existence of their traditional print employers. See, e.g., "The Year Ahead in Media: Digital or Die" (January 4, 2011, WSJ). Since 2008, 120 print newspapers have closed their doors, including the Rocky Mountain News and the Seatlle Post-Intelligencer. The Tribune Co., which owns the Los Angeles Times and the Chicago Tribune, filed bankruptcy, and the New York Times had to mortgage its headquarters in order to meet its operating costs. Ad revenues for The New York Times, which is the third largest newspaper by circulation in the nation, saw a 4% decline in print media advertising sales for 2010, while digital media advertising sales rose 10%. This, from an iconic newspaper whose stock has dropped 62% in the last five years.

As the WSJ article illustrates, the decline in print can be viewed as a symptom of the growth of internet publishing. Simply put, more people are now getting their news online rather than in print, and if current trends are predictive of the future, the decline of traditional print media will only hasten. With traditional print media becoming less relevant and digital media becoming more relevant, it might now be time to bring our "notice by publication" statutes into the Twenty-first Century. The U.S. and Illinois Constitutions both have due process clauses. Due Process, at minimum, requires 1) notice (usually of a claim) and 2) an opportunity to be heard (in order to defend one's self against that claim). Notice is typically achieved by personally serving the defendant or, if the defendant cannot be found after a reasonable effort, noticing the defendant by publication. 735 ILCS 5/2-206(a).

Procedures for service by publication are contained in 735 ILCS 5/2-206, which states, in pertinent part, that "upon diligent inquiry his or her [defendant's] place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper published in the county in which the action is pending." 735 ILCS 5/2-206(a). 715 ILCS 5/5 describes a "Newspaper defined for purpose of publishing notice required by law or contract." Most notable among the subsections here is 5/5(b), which requires that newspapers used for noticing by publication must be "printed through the use of one of the conventional and generally recognized printing processes such as letterpress, lithography or gravure." In other words, notice must be in print--and not digital--form.

The current notice by publication requirements set out in 735 ILCS 5/2-206(a) are impractical for several reasons. The first being that, with the advent of digital publishing, readership of print newspapers is in swift decline. And even among people who still read newspapers, very few pay attention to the "Legal Notices" section, which are densely packed with notices containing formal legal language printed in small print. Furthermore, 735 ILCS 5/2-206(a) only requires that the notice be published in a newspaper "in the county in which the action is pending." This means that the defendant is unlikely to come across the notice (assuming he reads the legal notices section) unless the defendant subscribes to every newspaper in the county, not just his local paper.

Illinois' notice by publication statute could be greatly improved by allowing plaintiffs or petitioners to provide notice by publication through online publications. Even though it is unlikely that a defendant would parse the legal notices of the online version of his local paper, the defendant could efficiently survey all the legal notices in his county by searching for his name through the website's search engine or through another search engine which indexes the newspaper's online content (after all, anyone who reads the Legal Notices section of the newspaper does the same thing--look for a recognized name--only much more inefficiently).

For relatively simple legal procedures like name changes, the notice by publication fees that print newspapers charge can amount to a considerable percentage of the total costs of the legal procedure, often surpassing the costs of the petition itself. By amending 735 ILCS 5/2-206(a) to allow digital publication, this cost would be greatly reduced, while at the same time providing defendants with a greater opportunity to be put on notice regarding the action to which they are a party. Bringing the the notice by publication statute into the digital Twenty-first Century will make it less expensive for a petitioner to commence an action and will provide a better opportunity for the defendant to be noticed, ultimately promoting the due process clause's purpose in the process.