Metropolitan News-Enterprise


Monday, March 18, 2002


Page 3


Newspaper Circulation Case Belongs in Court of Appeal, Not High Court—C.A.


By a MetNews, Staff Writer


An appeal in a dispute over whether a newspaper is one of general circulation must be heard by the Court of Appeal, despite archaic language referring to an appeal to the Supreme Court, the Fourth District Court of Appeal ruled Friday.

In affirming a judgment establishing the Perris City News as a newspaper of general circulation, Div. Two concluded that it had exclusive jurisdiction to hear the appeal and that legislation granting jurisdiction to the state high court was superseded by an amendment to the state Constitution.

The Perris City News petitioned the Riverside Superior Court for adjudication as a newspaper of general circulation in March 2000. Such adjudication is required before a newspaper may publish official advertising, notices, and orders.

The petition was granted, but the order was later vacated because the petition had not been published in a newspaper of general circulation within the city as required by Government Code Sec. 6021. A new petition was filed and was granted in May of last year, but the publisher of the Perris Progress—a newspaper of general circulation in the city since 1952—appealed.

The appellate panel, on its own motion, questioned whether it had jurisdiction, and if so whether that jurisdiction was exclusive or concurrent with that of the Supreme Court. The justices cited Government Code Sec. 6026, which was first enacted as part of the old Political Code in 1923 and provides that “[a]n appeal may be taken to the supreme court from any final decision or judgment” concerning a general-circulation petition.

 Justice Art McKinster, writing for the appellate panel Friday, explained that the statute goes back to a time when the Supreme Court and Court of Appeal divided up appellate jurisdiction on the basis of subject matter or amount in controversy.

The high court heard all appeals from the superior courts in equity, real property title, and taxation cases, as well as suits for more than $2,000; everything else went to the Court of Appeal, except that in “special proceedings,” the Constitution provided that the Legislature could grant jurisdiction to either court.

It was on that basis, McKinster explained, that lawmakers granted jurisdiction to the Supreme Court in newspaper-adjudication disputes, a type of special proceeding. But that provision of the law must now be ignored, the jurist explained, because it was rendered “an anachronistic vestige” by the 1966 amendment which redefined appellate jurisdiction.

In view of the change, McKinster explained, “section 6026 must be read as if that void phrase did not appear.”

A number of adjudication cases have been heard by the Court of Appeal in the last 36 years, but the jurisdictional issue was never mentioned until Friday’s opinion.

McKinster went on, in an unpublished portion of the opinion, to say that that there was substantial evidence to support Judge Dallas Holmes’ order granting the petition.

The Perris Progress, the justice explained, had contended that its rival lacked “a bona fide subscription list of paying subscribers” as required by Sec. 6008(a).

But the evidence was that the Progress had 748 subscribers and the News 370, McKinster noted. If the former was enough to qualify in a city of 32,000 people, McKinster reasoned, the latter must also be enough.

Lisa Grace-Kellogg, the attorney for the Perris City News, said she would not ask to have the remainder of the opinion published. Although neither she nor Progress publisher Etha Sabel, who argued the appeal in pro per, raised the jurisdictional issue, Grace-Kellogg said she was “glad the court finally resolved this issue that’s been hanging out there” for decades.

Grace-Kellogg is also vice president and general counsel of the Metropolitan News Company, publisher of the MetNews.

The case is In re Perris City News, 02 S.O.S. 1379.


Copyright 2002, Metropolitan News Company