Washington Water Jet Workers Ass'n v. Yarbrough, 70814-2.

• Decision Date: 13 May 2004
• Docket Number: No. 70814-2.,70814-2.
• Citation: 151 Wash.2d 470,90 P.3d 42
• Court: Washington Supreme Court
• Parties: WASHINGTON WATER JET WORKERS ASSOCIATION; Talon Industries, Inc.; Cutting Technology, Inc.; Pacific-Rim Enterprises, Ltd.; Jetpoint Technologies L.L.C.; Specialty Metals Corp.; Definitive Solutions & Technologies, Inc.; and Maxtec, Inc., Appellants, v. Howard YARBROUGH, in his official capacity as the Administrator of the Division of Correctional Industries; Washington State Department of Corrections, Division Of Correctional Industries; Jet Holdings, Ltd., d/b/a Microjet; and Kenneth Piel and Sharon Piel, Respondents.

90 P.3d 42

151 Wash.2d 470

WASHINGTON WATER JET WORKERS ASSOCIATION; Talon Industries, Inc.; Cutting Technology, Inc.; Pacific-Rim Enterprises, Ltd.; Jetpoint Technologies L.L.C.; Specialty Metals Corp.; Definitive Solutions & Technologies, Inc.; and Maxtec, Inc., Appellants, v. Howard YARBROUGH, in his official capacity as the Administrator of the Division of Correctional Industries; Washington State Department of Corrections, Division Of Correctional Industries; Jet Holdings, Ltd., d/b/a Microjet; and Kenneth Piel and Sharon Piel, Respondents.

No. 70814-2.

Supreme Court of Washington, En Banc.

May 13, 2004.

As Amended May 27, 2004.

Richard Stephens, Bellevue, for Appellants.

Michael Ballnik, Seattle, Cutler, Nylander, Robert Nylander, Philip Cutler, Seattle, Christine Gregoire, Attorney General, Talis Merle Abolins, Carol Murphy, Assist., Olympia, for Respondents.

Hugh Davidson Spitzer, Foster Pepper & Shefelman PLLC, Seattle, for Amicus Curiae

(AFL-CIO)(Washington State Labor Council).

Greg Overstreet, Perkins Coie LLP, Olympia, Kristopher Ian Tefft, Association of Washington Business, Olympia, for Amicus Curiae (Association of Washington Business).

Greg Overstreet, Perkins Coie LLP, Olympia, for Amicus Curiae (Monroe Welding Inc), (Nat'l Federation of Independent Business), (Standard Steel Fabricating Inc.), (United Iron Works Inc.).

Gregory Mann Miller, Seattle, Anne Elizabeth Melley, Burien, for Amicus Curiae (Private Industries in Prison Association).

Gregory Mann Miller, Seattle, Anne Elizabeth Melley, Burien, for Amicus Curiae (Seven Class I Industry Employers), (The Workman Fund).

BRIDGE, J.

In Washington Water Jet Workers Ass'n v. Yarbrough, 148 Wash.2d 403, 61 P.3d 309 (2003) (Water Jet I), this court held that article II, section 29 of the Washington Constitution solely applies to and prohibits the State from engaging in the contract system of prison labor. Id. at 405-06, 61 P.3d 309. Under that holding, the existing Class I Free Venture Industries program of prison labor created by RCW 72.09.100(1) did not violate article II, section 29. Water Jet I, 148 Wash.2d at 406, 61 P.3d 309. A motion for reconsideration was filed by the Washington Water Jet Workers Association (Water Jet). After review, we granted the motion and ordered a rehearing.

Upon rehearing, both the parties and amici, including the Private Industries in Prison Association et al., and the Washington State Labor Council et al., have submitted thorough historical analyses of the circumstances surrounding the adoption of article II, section 29. With the benefit of the additional historical analyses brought to light upon rehearing, we now conclude that both the plain language of article II, section 29 and the historical context in which it was adopted require that we find Class I Free Venture Industries programs, permitted by RCW 72.09.100(1), to be in direct conflict with article II, section 29 of the Washington Constitution.

Even so, we note the important public policy goals that the legislature and the Department of Corrections (Department) sought to promote when they created the Class I Free Venture Industries program. The legislature intended to avoid inmate idleness, encourage adoption of the work ethic, provide opportunities for inmate self-improvement, and provide a means for payment of restitution. RCW 72.09.010(5)(a)-(c), (7). These laudable goals need not be abandoned as a result of our holding today. We stress that there are other opportunities, in the form of state-run inmate labor programs, which would not run afoul of article II, section 29.

I Class I Free Venture Industries

In 1981,¹ the legislature enacted the Corrections Reform Act, chapter 72.09 RCW, providing for five classes of prison labor. See RCW 72.09.100.² The first class of prison labor in RCW 72.09.100, Class I Free Venture Industries, permits inmate work programs that are operated and managed by private profit or nonprofit entities other than the Department. RCW 72.09.100(1).³ Pursuant to RCW 72.09.100(1), the Department created a program of inmate labor called "private sector partnerships." See Clerk's Papers (CP) at 22-30. The Department enticed employers with the promise of low overhead costs and a motivated and readily available work force. Id. The Department's promotional materials presented the allure of a higher profit margin. CP at 23. Businesses were told that they could save the costs of health insurance and other employment-related benefits, and could potentially receive bid preferences on state contracts. CP at 24. The Department, meanwhile, would benefit because inmates would obtain training and skills that could help them become an integral part of society upon release, and employment might encourage a strong work ethic among inmates. The inmate workers would pay taxes on their earnings, and wage deductions would be available to compensate victims and/or provide child support payments.

Consistent with this promotion, the Department entered into a contract with Jet Holdings, Ltd., d/b/a MicroJet (MicroJet) that allows MicroJet to use prison labor from the Monroe Corrections Center in its water jet cutting business. CP at 5-16, 18. In addition to providing access to prison labor that MicroJet's competitors do not enjoy, the contract allows MicroJet to use more than 11,000 square feet of industrial space at the correctional facility rent-free. Many utilities are provided to MicroJet free of charge or at discounted rates. The Department also agreed to provide security and a security orientation session. Under the terms of the agreement, the Department refers prison inmates to MicroJet, the company interviews and hires the inmates, and then MicroJet pays inmate wages to the Department as trustee for the inmate-workers.⁴

II Article II, Section 29

When interpreting constitutional provisions, we look first to the plain language of the text and will accord it its reasonable interpretation. Anderson v. Chapman, 86 Wash.2d 189, 191, 543 P.2d 229 (1975) (citing State ex rel. Evans v. Bhd. of Friends, 41 Wash.2d 133, 247 P.2d 787 (1952)). Article II, section 29 states:

After the first day of January eighteen hundred and ninety the labor of convicts of this state shall not be let out by contract to any person, copartnership, company or corporation, and the legislature shall by law provide for the working of convicts for the benefit of the state.

Const. art. II, § 29. The words of the text will be given their common and ordinary meaning, as determined at the time they were drafted. State ex rel. O'Connell v. Slavin, 75 Wash.2d 554, 557, 452 P.2d 943 (1969) (citing State ex rel. Albright v. City of Spokane, 64 Wash.2d 767, 394 P.2d 231 (1964)). This court may also examine the historical context of the constitutional provision for guidance. See Yelle v. Bishop, 55 Wash.2d 286, 291, 347 P.2d 1081 (1959)

("In determining the meaning of a constitutional provision, the intent of the framers, and the history of events and proceedings contemporaneous with its adoption may properly be considered.").

A. Systems of Convict Labor

At the time of Washington's constitutional convention, a variety of prison labor systems existed. To determine the common and ordinary meaning of article II, section 29 at the time it was drafted, it is helpful to briefly review the systems of prison labor that would have been contemplated by the delegates to the constitutional convention. The systems have traditionally been divided into two categories: private systems and public systems. WILLIAM J. FARRELL, PRISONS, WORK AND PUNISHMENT 30 (1994); CHAS. P. NEILL, TWENTIETH ANNUAL REPORT OF THE COMMISSIONER OF LABOR, CONVICT LABOR 40-41 (1905).

1. Private Systems—There were three private systems of convict labor in the late 1800s: the lease system, the contract system, and the piece-price system. FARRELL, supra, at 30. Under the lease system, which was prevalent in the southern states after the Civil War, the State entered into a contract with a private lessee, who agreed to feed, clothe, house, and guard the convict. Id. at 28, 31. Inmate labor under this system was in direct competition with free labor. Id. at 30.

Because the lease system put the convict at the mercy of the lessee, inmates were often subjected to "unspeakable brutality." Stephen P. Garvey, Freeing Prisoners' Labor, 50 STAN. L.REV. 339, 357 (1998); see also DAVID M. OSHINSKY, "WORSE THAN SLAVERY" PARCHMAN FARM AND THE ORDEAL OF JIM CROW JUSTICECE (1996) (discussing the history of the lease system in Mississippi). Even so, one historian has concluded that the lease system died "not because of its unrelenting cruelty but because of its susceptibility to the fluctuations of the marketplace; especially during the depressions of the 1870s and 1880s." FARRELL, supra, at 31.

Unlike the lease system, the contract system required the State to feed, clothe, house, and guard the inmate. Id. at 28. The State selected a private contractor to manufacture its product within or near the prison, and provided convict labor. Id. In exchange for the benefit of the prisoners' labor, the contractor paid a stipulated amount for the services of each convict, provided raw materials, and supervised the convicts' work within the prison. Id. Although there is some historical evidence that the treatment of prisoners under the contract system was often cruel, at least one commentator has stated that the treatment of inmates was not that different from the treatment of free laborers. James J. Misrahi, Note, Factories with Fences: An Analysis of the Prison Industry Enhancement Certification Program in Historical Perspective, 33 AM.CRIM. L.REV. 411, 416 (1996). Again, convict labor under the contract system competed directly with free labor. FARRELL, supra, at 30. Moreover, this system allowed the State to favor one private contractor with inexpensive labor and overhead, to the detriment of its competitors.

The piece-price...