Does the West Virginia Constitution's bidding requirement for state printing (Art. 6, § 34) bar the Legislature from leasing printing machines and using its own employees to print bills and the daily journal in-house?

Plain-English summary

W. Va. Const. art. VI, § 34 requires the Legislature to "provide by law that" three categories of printing-related items "shall be let by contract to the lowest responsible bidder, bidding under a maximum price to be fixed by the Legislature." The categories are: (1) "the fuel, stationery and printing paper, furnished for the use of the state"; (2) "the copying, printing, binding and distributing the laws and journals"; and (3) "all other printing ordered by the Legislature." The 2015 Senate President and House Speaker asked the AG: does this bar the Legislature from leasing printing machines and using Legislative Services employees to print bills and daily journals in-house?

The AG answered no, with substantive caveats.

The textual ambiguity. The third (residual) category limits its reach to printing "ordered by the Legislature." The phrase "ordered by" suggests printing obtained from someone else, not work performed in-house. But category two on its face requires that "the . . . printing . . . of the laws and journals" be bid out. Reading category two literally would require everything to be bid; reading category three's "ordered by" limit to inform the other categories would let in-house printing escape the requirement.

Why the better reading allows in-house printing. Three reasons:

1. Noscitur a sociis. Barr v. NCB Mgmt. Servs. (2011): "[i]t is a fundamental rule of construction that, in accordance with the maxim noscitur a sociis, the meaning of a word or phrase may be ascertained by reference to the meaning of other words or phrases with which it is associated." The "ordered by" limit in the residual clause informs the meaning of the related categories.

2. The "printing paper" reference in category 1. § 34 lists "printing paper, furnished for the use of the state" among the items requiring bidding. There would be little need for printing paper "furnished for the use of the state" unless the state was expected to print on its own. The constitution thus presupposes some in-house printing.

3. Decisions in other states with stricter language. Three state supreme courts have read parallel constitutional provisions, with broader language than West Virginia's, to allow in-house state printing. Kentucky's constitution (Ky. Const. § 247) covers "all other public printing and binding" with no "ordered by" limit; the Court of Appeals in State Journal Co. v. Commonwealth (1942) held that the article "was not designed to put the State in a straitjacket so that it could not print or make manifold copies of its records." Texas reached the same result in Dir. of the Dep't of Agric. & Env't v. Printing Indus. Ass'n of Tex. (1980). Alabama reached the same result in Associated Indus. of Ala. v. Britton (1979). Arkansas amended its constitution in 1984 to add "purchased by," and the Arkansas Supreme Court in Erxleben v. Horton Printing Co. (1984) read the new phrase to permit in-house duplicating, an analogous textual change to West Virginia's "ordered by" language. Earlier Arkansas case law (Gray v. Gaddy (1974)) had reached the opposite result under the broader pre-amendment text.

What is left open. The AG did not address whether procurement rules apply to the leasing of the printing machinery itself, or whether other constitutional or statutory provisions might constrain the in-house arrangement. The opinion is narrowly about whether § 34 itself prohibits in-house printing.

Practical implication. The Legislature could lease printing machines, train Legislative Services employees, and produce bills and daily journals in-house, with anticipated cost savings. Other printing (stationery, etc.) would still go out to bid under § 34.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The constitutional provision has not been amended, but procurement statutes, technology contracts, and Legislative Services arrangements have evolved. Anyone designing a current in-house printing operation for a West Virginia government entity should consult current procurement law and any later AG opinions.

Common questions

Q: What does Art. VI, § 34 actually require?
A: It requires the Legislature to "provide by law that" three categories of items "shall be let by contract to the lowest responsible bidder, bidding under a maximum price to be fixed by the Legislature." The categories cover state-use fuel, stationery, and printing paper; the copying, printing, binding, and distributing of laws and journals; and "all other printing ordered by the Legislature."

Q: Why does "ordered by" matter?
A: "Ordered by" naturally reads to mean a request to an external vendor, not work performed in-house. The Legislature does not "order" its own employees in the same sense that it orders printing from a commercial press. The residual clause's "ordered by" limit, applied via noscitur a sociis, suggests the bidding requirement reaches only outside contracting.

Q: How is the noscitur a sociis canon used here?
A: When a list of related items contains a clear limitation (here, "ordered by"), that limitation informs the meaning of the other items in the list. The residual category's "ordered by" limit indicates that the surrounding categories share the same external-procurement focus.

Q: Why look at other states' decisions?
A: Three state supreme courts have construed broader constitutional language (no "ordered by" limit) to permit in-house state printing. If those broader provisions allow in-house work, West Virginia's narrower provision certainly does. Arkansas's experience is especially instructive: the change from "all . . . printing" to "purchased by" tracked the West Virginia drafting style, and the Arkansas Supreme Court read the change to permit in-house duplicating.

Q: Could the Legislature print everything in-house and dispense with bidding entirely?
A: The opinion does not endorse that. § 34 still requires bidding for things actually obtained from outside vendors. Stationery and the like remain subject to the bidding requirement (the opinion notes that "other materials, including stationery, would still be printed by outside companies under contracts awarded pursuant to Section 34"). The opinion authorizes in-house printing of bills and journals, not abandonment of bidding altogether.

Q: What about the printing machinery itself, can the Legislature just lease it?
A: The opinion expressly does not opine on procurement rules for the machinery. State procurement statutes and policies may apply to that equipment lease. The Legislature should consult procurement counsel separately on equipment acquisition.

Q: Is this AG opinion binding?
A: No. AG opinions are persuasive but not binding on courts. A challenger could ask a court to construe § 34 differently. The textual case for in-house printing is solid, but litigation outcomes are not guaranteed.

Background and statutory framework

The constitutional provision. W. Va. Const. art. VI, § 34: "The Legislature shall provide by law that the fuel, stationery and printing paper, furnished for the use of the state; the copying, printing, binding and distributing the laws and journals; and all other printing ordered by the Legislature, shall be let by contract to the lowest responsible bidder, bidding under a maximum price to be fixed by the Legislature . . . ."

Noscitur a sociis canon. Barr v. NCB Mgmt. Servs., Inc., 227 W. Va. 507 (2011): "[T]he meaning of a word or phrase may be ascertained by reference to the meaning of other words or phrases with which it is associated."

Out-of-state authority.
- Kentucky: Ky. Const. § 247 ("all other public printing and binding"); State Journal Co., Inc. v. Commonwealth, 160 S.W.2d 145 (Ky. 1942).
- Texas: Tex. Const. art. 16, § 21 ("all other printing and binding"); Dir. of the Dep't of Agric. & Env't v. Printing Indus. Ass'n of Tex., 600 S.W.2d 264 (Tex. 1980).
- Alabama: Ala. Const. art. 4, § 69 ("all other printing, binding"); Associated Indus. of Ala., Inc. v. Britton, 371 So. 2d 904 (Ala. 1979).
- Arkansas: Ark. Const. art. 19, § 15 (original "all . . . printing"; Gray v. Gaddy, 510 S.W.2d 269 (Ark. 1974), barred in-house printing); Ark. Const. amend. 54, § 1 (later "purchased by"); Erxleben v. Horton Printing Co., 675 S.W.2d 638 (Ark. 1984), read "purchased by" to allow in-house duplicating.
- Comparable broad provisions in Colorado, Mississippi, Wisconsin, Wyoming have not been judicially addressed. (Colo. Const. art. 5, § 29; Miss. Const. art. 4, § 107; Wis. Const. art. 4, § 25; Wyo. Const. art. 3, § 31.)

Citations

• W. Va. Code § 5-3-1
• W. Va. Const. art. VI, § 34
• Barr v. NCB Mgmt. Servs., Inc., 227 W. Va. 507 (2011)
• State Journal Co., Inc. v. Commonwealth, 160 S.W.2d 145 (Ky. 1942)
• Dir. of the Dep't of Agric. & Env't v. Printing Indus. Ass'n of Tex., 600 S.W.2d 264 (Tex. 1980)
• Associated Indus. of Ala., Inc. v. Britton, 371 So. 2d 904 (Ala. 1979)
• Erxleben v. Horton Printing Co., 675 S.W.2d 638 (Ark. 1984)
• Gray v. Gaddy, 510 S.W.2d 269 (Ark. 1974)
• Ky. Const. § 247; Tex. Const. art. 16, § 21; Ala. Const. art. 4, § 69; Ark. Const. art. 19, § 15; Ark. Const. amend. 54, § 1; Colo. Const. art. 5, § 29; Miss. Const. art. 4, § 107; Wis. Const. art. 4, § 25; Wyo. Const. art. 3, § 31

Source

• Landing page: https://ago.wv.gov/media/17971/download?inline
• Original PDF: https://ago.wv.gov/media/17971/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

The Honorable William P. Cole III
President of the Senate
Building 1, Room 229M
1900 Kanawha Boulevard, East
Charleston, West Virginia 25305

August 12, 2015

(304) 558-2021
Fax (304) 558-0140

The Honorable Tim Armstead
Speaker of the House of Delegates
Building 1, Room 228M
1900 Kanawha Boulevard, East
Charleston, West Virginia 25305

Dear Mr. President and Mr. Speaker:

You have asked for an Opinion of the Attorney General regarding whether Article 6, Section 34 of the West Virginia Constitution prohibits the Legislature from printing daily journals and bills in-house. This Opinion is being issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General shall "render to the president of the Senate and/or the speaker of the House of Delegates a written opinion or advice upon any questions submitted . . . by them . . . whenever he or she is requested in writing so to do." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your correspondence with the Attorney General's Office.

According to your letter, it is the position of the West Virginia Legislature that Section 34 would not prohibit the Legislature from leasing machines for Legislative Services employees to print bills and daily copies of the journal in house. You explain that the Legislature would like to use its own employees to print bills and daily copies of the journal without the use of any outside vendor or contractor, but that other materials, including stationery, would still be printed by outside companies under contracts awarded pursuant to Section 34. The letter states that the Legislature has concluded that Section 34 applies only "to instances in which an outside vendor is used." Furthermore, you anticipate "this method of printing would result in substantial savings to the State of West Virginia."

Your letter raises the following legal question:

Do the bidding requirements of Article 6, Section 34 of the West Virginia Constitution effectively prohibit in-house printing by the Legislature?

We begin with the text of Section 34, which is ambiguous as to whether it requires all of the Legislature's printing needs to be bid out to and performed by an outside vendor. In pertinent part, the language provides:

The Legislature shall provide by law that the fuel, stationery and printing paper, furnished for the use of the state; the copying, printing, binding and distributing the laws and journals; and all other printing ordered by the Legislature, shall be let by contract to the lowest responsible bidder, bidding under a maximum price to be fixed by the Legislature . . . .

Parsed out, Section 34 imposes a bidding procedure for contracts on three categories of items: (1) "the fuel, stationery and printing paper, furnished for the use of the state"; (2) "the copying, printing, binding and distributing [of] the laws and journals"; and (3) "all other printing ordered by the Legislature." The ambiguity arises out of categories two and three (the residual clause). On one hand, the reference in the residual clause to "other printing ordered by the Legislature" seems to indicate some intent to exclude from the bidding procedure printing that is not ordered from another entity, i.e., in-house printing. Id. (emphasis added). On the other hand, category two seems definitively to require that all of "the . . . printing" of "the laws and journals", a subset of the Legislature's printing needs, be bid out to an outside vendor. Id. (emphasis added). What is unclear is whether the use of the phrase "ordered by" in the residual clause reflects a limitation implicit in the other categories. We have located no cases of the West Virginia Supreme Court of Appeals or previous Attorney General Opinions that have addressed this question.

Recognizing the ambiguity, we believe for several reasons that the better reading is that Section 34 does not require all of the Legislature's printing to be bid out to outside vendors. First, consistent with long-standing principles of textual interpretation, we read the residual clause to be a reflection of the preceding categories. As the Supreme Court of Appeals has explained, "[i]t is a fundamental rule of construction that, in accordance with the maxim noscitur a sociis, the meaning of a word or phrase may be ascertained by reference to the meaning of other words or phrases with which it is associated." Barr v. NCB Mgmt. Servs., Inc., 227 W. Va. 507, 512, 711 S.E.2d 577, 582 (2011) (internal quotation marks omitted). Thus, although "ordered by" does not technically modify "the . . . printing . . . the laws and journals" as a grammatical matter, that limitation in the residual clause strongly suggests that the previous categories in the list are likewise limited. As such, we read Section 34 to impose bidding requirements on the Legislature's printing needs only if that printing is ordered by the Legislature from another entity. It does not effectively prohibit in-house printing. Second, the inclusion of "printing paper" in category one further suggests that in-house printing by the Legislature is contemplated. There would be little need for "printing paper[] furnished for the use of the state" if the Legislature or other state entities were not permitted to print on their own.

This reading of Section 34 is bolstered by court decisions in several other States, in which state entities have been permitted not to bid out printing needs, even though the state constitutions seemed clearly to require the use of outside vendors. At least seven States currently have similar constitutional provisions with language that, unlike Section 34 in West Virginia, unambiguously impose contracting requirements on all printing. Yet the highest courts in three of those States have declined to construe their constitutional provisions to require state entities to bid out all printing needs. For example, Kentucky's constitution states: "The printing and binding of the laws, journals, department reports, and all other public printing and binding, shall be performed under contract, to be given to the lowest responsible bidder . . . ." Ky. Const. § 247 (emphasis added). In contrast to Section 34, nothing in the Kentucky provision suggests that in-house printing (not "ordered by" the legislature from another entity) is exempt or permissible. Nevertheless, the Court of Appeals of Kentucky upheld a statute that authorized a state department to offer duplication and minor printing services to other agencies because "[t]he article was not designed to put the State in a straitjacket so that it could not print or make manifold copies of its records and documents by machines in its own offices." State Journal Co., Inc. v. Commonwealth, 160 S.W.2d 145, 148 (Ky. 1942) (internal quotation marks omitted). The constitutional provisions in Texas and Alabama have been construed similarly.

Arkansas's treatment of the same issue also supports our reading of Section 34. The Arkansas constitution had initially imposed contract requirements on "all . . . printing." Erxleben v. Horton Printing Co., 675 S.W.2d 638, 639 (Ark. 1984) (quoting Ark. Const. art. 19, § 15). Interpreting this blanket language, the state's high court struck as unconstitutional a statute that, in the court's view, "permit[ted] the State to go into the printing business." Gray v. Gaddy, 510 S.W.2d 269, 271 (Ark. 1974). The constitution was then amended to read: "The printing . . . purchased by the General Assembly . . . shall be under contracts given to the lowest responsible bidder . . . ." Ark. Const. amend. 54, § 1 (emphasis added). In turn, the court interpreted the new phrase "purchased by" to "require[] competitive bidding for printing purchased from commercial printers, but [to] permit[] the state to produce its own duplicating and printing without submitting a bid." Erxleben, 675 S.W.2d at 640. Our approach in this Opinion to the phrase "ordered by the Legislature" in Section 34 tracks the meaning given in Arkansas to the similar phrase "purchased by the General Assembly."

In sum, while we recognize the ambiguity in Section 34, we conclude that the provision should not be read to prohibit in-house printing by the Legislature. You have not asked, and we have not addressed, whether there are limitations on or procedural requirements applicable to the Legislature's leasing of the printing machinery necessary to conduct printing in-house. Nothing in Section 34 appears on its face to apply, but we do not opine on the applicability of any other constitutional or statutory provision.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General