Could committee win force Times to return to afternoon publication?

In seeking to preserve both of Seattle's daily newspapers, could the Committee for a Two-Newspaper Town inadvertently kill one of them?

An attorney for The Seattle Times Co. raised that possibility in court last month. The committee's chief claim, if upheld, would set off a chain of events forcing The Times to return to afternoon publication and near-certain death, Monty Gray told a judge.

That's "a complete red herring," says Dmitri Iglitzin, the committee's lawyer. It would be an absurd outcome that no judge would impose, he contends.

But two law professors say language in the joint-operating agreement (JOA) between The Times Co. and The Hearst Corp. — if enforced to the letter — could turn back the clock and transform The Seattle Times into an afternoon paper again if the committee wins.

Much would depend on whether Hearst, which owns the Seattle Post-Intelligencer, wants that, said Sid DeLong, who teaches contracts at Seattle University's law school.

A Hearst spokesman declined comment.

The JOA contract language "couldn't be clearer," said Kathleen O'Neill, who teaches contracts at the University of Washington's law school. But The Times could argue subsequent events have effectively amended it, she added: "It's not a slam dunk either way."

To understand the intricacies of this flap, go back to 1981. That's when The Times and Hearst signed the JOA, which was implemented in 1983.

The original 50-year contract limited The Times to p.m. publication, leaving the a.m. market to the P-I. The Times got 68 percent, Hearst 32 percent of what remained after the non-news expenses of publishing both papers were paid.

In 1999, the companies amended the JOA. They extended it to 2083. They changed the profit split to 60-40. They added language that, if either paper closed voluntarily, The Times would get 68 percent, Hearst 32 percent, of the surviving paper's profit.

And, most important to The Times, they agreed both papers would compete head-to-head in the morning.

Times executives wanted that because afternoon big-city papers had been shutting or switching to morning publication. The Times was an aberration in 1999, probably the only p.m. in the U.S. that still outsold its a.m. competition.

Since 1999, the trend toward morning has only become more pronounced. The afternoon Detroit News switched this year. In Birmingham, Ala., the afternoon paper folded last fall.

Since 2003, Hearst and The Times have been engaged in a legal fight over the JOA that could lead to the P-I's closure and affect the futures of both newspapers. The Committee for a Two-Newspaper Town is an intervenor in that lawsuit.

Its central claim challenges the constitutionality of the section of the 1999 amendment that allows one owner to close its paper and get a percentage of the survivor's profit.

That's an incentive to Hearst to stop publishing the P-I, Iglitzin told King County Superior Court Judge Greg Canova last month: "The Times is paying Hearst not to compete in this market."

Times attorney Gray told Canova that if the committee prevailed, it would "very likely destroy The Seattle Times."

Why? Because "severability" language in the 1999 JOA amendment says that if a court strikes down any part of the amendment "at any time," the entire amendment is invalidated. Everything reverts to the original contract. That would push The Times back into the afternoon.

Iglitzin says Gray's comment was "a blatant effort to persuade employees of The Seattle Times to contact the Pacific Northwest Newspaper Guild and persuade it to withdraw its support for the committee."

The Guild, which represents more than 700 Times and P-I employees, voted to sever ties with the committee May 6.

Iglitzin says the committee has no intention of pushing The Times out of the morning market. Gray's contention is a red herring, he says, because too much time has passed.

"It's absurd to think that the parties intended to turn back the clock and revert to the 1981 JOA operations once the changes had already been fully implemented and had become, for all practical purposes, irreversible," he said in an e-mail.

What's more, Iglitzin says, there's no evidence Hearst would want The Times back in the afternoon, since that could hurt its bottom line under the JOA as well.

But DeLong, the Seattle University law professor, says the severability language "appears to mean what it says. ... This agreement seems to contemplate the possibility of invalidity."

Unless there are other, private agreements between the newspapers that override the severability language, DeLong said, it could push The Times back to the afternoon.

But "that would still have to be enforced," he added, and Hearst could choose to waive or renegotiate it.

The UW's O'Neill said the severability language "is pretty airtight. ... It's pretty clear the parties intended to revert to the old agreement" if any part of the 1999 amendment is invalidated.

The Times could conceivably argue that its interactions with Hearst since 1999 have effectively amended the contract in fact, if not on paper, O'Neill added.

One possible example: Hearst agreed to let The Times publish in the morning in part to avoid the expense of building a second printing plant. After the switch, The Times sold land it had purchased for that plant.

Eric Pryne: 206-464-2231 or epryne@seattletimes.com