Public Notice & The Preservation of Property Rights


    By Jeff Kottkamp


    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  The radical idea set forth in the Declaration of Independence—that all people are equal and have certain natural rights that are not given to them by government but are granted to them by God—literally changed the course of history.


    The idea of natural rights was principally influenced by 17th Century scholar John Locke. Locke’s famous Second Treatise Concerning Civil Government, was in fact considered so radical that he did not sign his name to it. He only acknowledged authorship in his will.  A key component of Locke’s philosophy emphasized the natural right to own and protect property.  Locke believed the preservation of property is the reason for which people enter into society.


    Our Founding Fathers carried forward Locke’s philosophy of natural right and the importance of protecting private property rights.  The Father of the Constitution, James Madison, believed that the protection of private property “is the first object of government.”


    For as long as we have been a country—one of the principle tools used to protect and preserve property rights has been public notice.  Whether by an act of government—or by a private citizen—before someone can take your property we have a long tradition of requiring that you receive notice.  Notice is essential to fulfill the Constitutional mandate of due process.


    During this year’s Session of the Florida Legislature we again have seen attempts to ignore this long standing American tradition and diminish notice – specifically – public notice in print media. Those efforts are usually pushed by those who view public notice in terms of dollars and cents rather than as important tool in protecting private property rights. 


    There is one proposal this year that would harm property rights in the mortgage foreclosure arena. The proposal would set the stage to do away with public notice in print media and drive all of the business to a for-profit company’s website. Over the last few years there have been well documented problems with foreclosure fraud – and even cases of people’s homes being improperly foreclosed. Why would we want to make it harder for people to discover that their property rights are being impacted?


    Another proposal would do away with public notice in print media when your property is about to be taken from a storage facility and sold.  The public notice would be moved to “a website accessible to the public”.  The unanswered question is—how would people know where to look for such a website?


    While direct notice to the person is undoubtedly the best notice, what if you can’t find the person? This is where public notice is really important. Putting an ad in the local newspaper cast a much larger net. It tells the world that your property is in jeopardy. Public notice in this context demonstrates that as a society we so value a person’s property rights that we want to give that person every opportunity to know that they are about to be deprived of their property.


    Some favor moving all public notice to the internet believing such a move would bring public notice in to the 21st century.  That would be a valid argument if everyone had access to the internet—but that is not the case.


    A recent survey by Pew found that 59% of those 65 and older don’t use the internet.  In addition, 28% of Hispanics don’t use the internet—and 27% of African Americans don’t use the internet.  For that reason, Associated Industries of Florida (AIF), NAACP, the Florida Association of Black Owned Media, AARP, the Florida Press Association, and others have opposed efforts to public notice solely to the internet.


    Last year, in an effort to preserve broad public notice with an eye towards the future, the Keep the Public Notice Coalition supported legislation that now requires that all public notices in print media be placed on the publishing newspaper’s website and also on a website dedicated to public notices sponsored by the Florida Press Association—all at no additional costs to consumers.  This is a balanced approach to public notice that should be maintained.


    The public notice proposals in the legislature this year would reduce the reach of public notice and essentially take us backwards. That approach should be rejected.  When it comes to our longstanding tradition of preserving property rights we must keep public notice in print and on the internet.  By doing so, we will help preserve our liberty.


    Jeff Kottkamp was Florida’s 17th Lieutenant Governor and is a former member of the Florida House of Representatives. He currently practices law in Tallahassee where he specializes in Legislative and Governmental Affairs and also serves as the General Counsel for the Keep the Public Notice Coalition.