Publications FAQ 6

What rules control the publication timing for legal notices?

The matter of when a legal notice must or may be published is sometimes a source of confusion. Take, for example, the requirement that a proposed zoning amendment be published “as a class 2 notice, under ch. 985.” Wis. Stat. sec. 62.23(7)(d).

A class 2 notice means that two “insertions” are required. (Similarly, class 1 and 3 notices require, respectively, one and three insertions.)Wis. Stat. sec. 985.07. When more than one insertion is required, the notice must be published once each week for consecutive weeks, with the last notice published at least one week before the act or event, unless otherwise specified by law. Sunday publication is permitted. Wis. Stat. sec. 985.10.

For example, if a hearing is planned for a Wednesday, then the final insertion must be published at least seven days before, since a "week" is defined as seven consecutive days. Wis. Stat. sec. 990.01(46). The time for publication of legal notices is figured by excluding the first day of publication and including the day on which the noticed event will occur. Wis. Stat. sec. 985.09. Therefore, the latest that the second notice can be published is the Wednesday before the hearing. This works out because, excluding the Wednesday of publication, day one is Thursday and day seven is the Wednesday of the hearing. The first notice therefore should be published on the Wednesday two weeks before the hearing.

Unfortunately for those who must apply the publication timing rules, the statutes do not clearly define how to calculate the weeks preceding the final week and do not clearly require exactly one week intervals between insertions. For example, if a hearing is to be on Wednesday the 30th and three insertions are required then the last day of permitted publication is Wednesday the 23rd. The three publication weeks and the required final week interval are the seven day periods beginning and ending, respectively, as follows: Thursday the 3rd­ - Wednesday the 9th; Thursday the 10th­ - Wednesday the 16th; Thursday the 17th - ­Wednesday the 23rd; and Thursday the 24th­Wednesday the 30th. Since there is no explicit requirement that there be a week between insertions, arguably publication on any day within a week is sufficient. See Wis. Stat. secs. 985.05(1), 985.07 and 985.10.

However, a better interpretation is to read the law as requiring the insertions to be exactly one week apart. Under this interpretation, publication within the weekly periods shown above would be insufficient unless the insertions appeared on the same day of each week. In other words, if there is not publication on the same day of each weekly period, then there would be less than or more than seven days between insertions, which might not meet the "once each week for consecutive weeks" requirement.

This latter interpretation is the one used by a Wisconsin court of appeals in a case in which the court stated that, "A Class 2 notice requires that two newspaper notices be published one week apart and that a hearing be held on the proposed zoning change at least one week after the last notice."  Gloudeman v. City of St. Francis, 143 Wis.2d 780, 422 N.W.2d 864, 866 (Ct. App. 1988). This statement by the court, however, is likely obiter dictum (not binding precedent) because the case did not involve the issue of whether same day publication is required for multiple insertions.

Also, it should be noted that the definition of insertion does not specify the time for publication of one insertion (a class 1 notice). It seems sensible, though, to interpret the law consistently and reach the conclusion that a class 1 notice requires its one insertion to be published "at least one week before the act or event, unless otherwise specified by law." In most, if not all, cases there is indeed a time period specified for publication of a class 1 notice prior to the event. See, for example, Wis. Stat. sec. 65.90, which requires a city or village budget summary and hearing notice to be published "as a class 1 notice, under ch. 985, in the municipality at least 15 days prior to the time of public hearing." Wis. Stat. sec. 65.90(3)(a).

In addition, class 1 notices are specified when publication is required after an event, as in the case of the publication of proceedings and ordinances (see below). In such cases publication should be within a reasonable time after the event. Note, however, that if posting is used the notice must be posted within one week of the event. Wis. Stat. sec. 985.02(2)(c).