Legal ads at heart of federal suit

By Lawrence Smith | Aug 16, 2007


CHARLESTON – The publisher of an upstart publication in Lincoln County is suing his established rival and the county commission, alleging they've bilked taxpayers out of money through excessive publication of legal advertising.

On Aug. 13, Dan Butcher, publisher of the Lincoln Standard, along with Versie Sims, an Upper Mud River community activist, filed suit in federal district court in Charleston alleging the Lincoln Journal, Inc., parent company of the Lincoln Journal and Lincoln News Sentinel newspapers, and the county commission conspired to defraud they, and their fellow county taxpayers though duplicate publication of legal ads. The suit names the county sheriff and clerk, in their official capacity, as co-defendants.

The suit was filed in federal court because though both Butcher and Sims own property in Lincoln County, they are residents of Florida and Ohio, respectively. Also, they allege the damages they suffered exceeds $75,000.

In their suit, Butcher and Sims allege that Thomas A. Robinson, the Lincoln Journal, Inc. publisher, failed to include the average paid circulation for both the Journal and News Sentinel in the affidavits of circulation and qualification he submitted to the West Virginia Secretary of State for the years 2003 through 2007. Because of the failure to include the numbers, Butcher and Sims maintain that "the Lincoln Journal and Lincoln News Sentinel are not qualified newspapers as that term is defined by West Virginia Code 59-3-1(b) and should not be entitled to run legal advertisements."

Again citing state law, Butcher and Sims say that qualified newspapers have a duty to disclose to advertisers of legal ads its proof of publication. Despite not providing this information, Butcher and Sims allege government agencies like the commission, placed legal ads with the Journal and News Sentinel anyway.

"The Commission, the Sheriff and the Clerk owe the public a duty to verify the validity of the rates paid for placement of legal advertisements, and to assure that it is not being overcharged for the publishing of delinquent tax notices," Butcher and Sims say in their suit.

The issue of delinquent tax notices factors prominently into Butcher's and Sims' suit. In it, they allege that the Journal not only published the lists more frequently than state law allowed, but also charged more for the lists by including "excessively lengthy property descriptions."

This, they allege, was done with the commission's knowledge and consent.

"In addition to publishing delinquent tax notices," Butcher and Sims say, "second lists of delinquent lands, and notices of sale more frequently than statutorily mandated, the Journal, Inc. has charged excessive rates for legal advertising by including excessively lengthy property descriptions in the delinquent property tax lists submitted for publication by the Commission."

"The Commission published delinquent tax notices in the Lincoln Journal, and the Lincoln News Sentinel, formerly the Weekly News Sentinel," Butcher and Sims add, "that included lengthy and excessive descriptions of the delinquent properties in order to increase the number of words in the legal advertisement, and charge the Commission higher rates for the statutorily mandated publication of delinquent property tax notices."

Though attorneys Rhonda L. Harvey and Thomas A. Heywood with the Charleston law firm of Bowles, Rice, McDavid, Graff and Love, Butcher and Sims ask for a temporary injunction against the defendants so as to prevent further publication of legal ads in the Journal or News Sentinel, declaratory judgment against the Journal and News Sentinel that neither are "qualified newspapers" under West Virginia law, attorneys fees and costs and "such relief as this Court deems just and fit."

Attempts to reach Charles McCann, the commission president, were unsuccessful as he was out of town, and not expected back until next week. Also unavailable for comment was Jack Stevens, county prosecuting attorney.

Likewise, Robinson did not return a call for a comment by press time.

However, Sheriff Jerry Bowman, commenting on the situation, and not the merits of the suit, said he's hopeful some resolution can come from the controversy.

"If," Bowman said, stressing the word if, "there has been some wrong-doing, it needs to be corrected."
The case has been referred to U.S. Magistrate Judge Mary E. Stanley.

Case number: 07-CV-499

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