On appeal from the Superior Court of New Jersey, Chancery Division and Law Division, Camden County, Docket Nos. L-2927-07 and L-3860-07.
The opinion of the court was delivered by: Chambers, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Reisner and Chambers.
The disputes in this case arise out of the decisions by Camden County and the Sheriff of Camden County to publish legal notices in The Philadelphia Inquirer, an out-of-state newspaper, at rates less than those specified in N.J.S.A. 35:2-1.*fn1 In this appeal, we must decide four questions.
The first question is whether the plaintiff, Courier-Post Newspaper, a Division of Gannett Satellite Information Network (the Courier-Post), which is qualified to publish legal notices for Camden County and the Sheriff of Camden County and has done so in the past, has standing to challenge these arrangements. We conclude that it does.
The second question is whether The Philadelphia Inquirer is "printed and published within the State of New Jersey" for the purposes of being qualified to publish legal notices pursuant to N.J.S.A. 35:1-2.2. We conclude that The Philadelphia Inquirer is "printed and published" in Pennsylvania where its home office is located and where the newspaper is physically printed on newsprint. It may not be considered "printed and published" in New Jersey even though its newspaper is available on the Internet and may be viewed and printed by readers on their computers in New Jersey. For similar reasons, The Philadelphia Inquirer is not "printed and published" in Camden County within the meaning of N.J.S.A. 2A:61-1, which governs sheriffs' notices of real estate sales.
The third question is whether Camden County or the Sheriff of Camden County may arrange to print legal notices with a newspaper for less than the statutory rates set forth in N.J.S.A. 35:2-1. We find no authority to allow a county or sheriff to circumvent the statutory requirement and hold that the statutory rates must be followed.
The final question is whether statutory provisions which do not allow legal notices of a county or sheriff to be published in out-of-state newspapers violate the Commerce Clause of the United States Constitution. U.S. Const. art. I, § 8, cl. 3. We conclude that they do not, because a state, including its subdivisions, when acting as a consumer, may prefer in-state businesses without violating the Commerce Clause.
In light of these determinations, we reverse the decision of the trial court that granted summary judgment in favor of defendants, and we remand for entry of an order in accordance with this decision.
The circumstances leading to this litigation began in January 2007, when the Board of Chosen Freeholders of Camden County published a notice in The Philadelphia Inquirer and the Courier-Post seeking proposals from newspapers "for discounted newspaper advertising" for publication of legal notices and advertisements. This Request for Proposals (RFP) was issued in furtherance of the County's authority under N.J.S.A. 40:23-13, which accords to counties the responsibility of designating "an official newspaper or newspapers in which shall be published all advertisements and notices required by law to be published." The notice advised that: "This Request For Proposals does not constitute a bid and is intended solely to obtain competitive proposals from which the Counties may choose the newspaper(s) that best meet(s) the Counties['] needs as they relate to discounted advertising services."*fn2
The Courier-Post did not respond to the RFP. However, Philadelphia Newspapers, L.L.C., the publisher of The Philadelphia Inquirer, (The Philadelphia Inquirer), did submit a proposal to Camden County offering advertising rates lower than those fixed by N.J.S.A. 35:2-1.
The Board of Chosen Freeholders for Camden County designated The Philadelphia Inquirer as an official newspaper pursuant to N.J.S.A. 40:23-13 and N.J.S.A. 35:1-1 to -4. Accordingly, Camden County entered into a written two-year agreement in which The Philadelphia Inquirer agreed to publish the legal notices and advertisements for Camden County at the reduced rates set forth in its proposal.
The Courier-Post brought an action in lieu of prerogative writs seeking to enjoin Camden County from using The Philadelphia Inquirer to publish legal notices and seeking declaratory relief and compensatory damages.*fn3 We will not review all of the procedural details of the litigation, but note the following salient events. The Philadelphia Inquirer was granted leave to intervene*fn4 and participated in the proceedings before the trial court. The Courier-Post's request for temporary restraints was denied.
Shortly after the litigation began, the Sheriff of Camden County stopped publishing in the Courier-Post notices of public sales of real estate under N.J.S.A. 2A:61-1 and began to publish these notices in The Philadelphia Inquirer. As a result, the Courier-Post brought separate litigation against Charles H. Billingham, Sheriff of Camden County and the Office of Sheriff of Camden County (the Sheriff). The two cases were thereafter consolidated.
At the conclusion of discovery, on cross-motions for summary judgment, the trial court held that the Courier-Post did not have standing to challenge Camden County's contract with The Philadelphia Inquirer because it had not submitted a proposal to Camden County. The court further determined that The Philadelphia Inquirer was printed and published in New Jersey. Due to the substantial and long standing circulation of The Philadelphia Inquirer within southern New Jersey, the court noted that the Legislature's intent in the advertising statute to provide notice to a great number of taxpayers was served by allowing the notices to be published in The Philadelphia Inquirer. By order dated January 27, 2009, it granted summary judgment to defendants and denied plaintiff's motion for summary judgment.
The Courier-Post has appealed. While the appeal was pending, The Philadelphia Inquirer filed a voluntary petition for bankruptcy and was dismissed from this suit. The New Jersey Press ...