WASHINGTON WATER JET WORKERS v. Yarbrough, 70814-2.

• Citation: 61 P.3d 309,148 Wash.2d 403
• Decision Date: 16 January 2003
• Docket Number: No. 70814-2.,70814-2.
• 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.

61 P.3d 309

148 Wash.2d 403

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.

Argued January 31, 2002.

Decided January 16, 2003.

Richard Stephens, Bellevue, WA, for Appellants.

Christine Gregoire, Attorney General, Michael Ballnik, Carol Murphy, Asst. Attorneys General, Olympia, WA, Cutler & Nylander, Robert Nylander, Philip Cutler, Seattle, WA, for Respondents.

CHAMBERS, J.

Washington Constitution article II, section 29 provides:

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.

We must determine whether this language prohibits all private employment of prisoners or whether it only prohibits the now-unused eighteenth and nineteenth century "contract system of labor." Under the contract system, the State leased the involuntary labor of prisoners to private contractors who had near complete control of the prisoners. The system was inhumane, corrupt, and universally condemned. By contrast, the Washington Legislature has created a system where prisoners may be gainfully employed by private business. See RCW 72.09.100(1). This system is entirely voluntary and the statute requires that prisoners be paid a fair wage. We find that our constitution bars the State from selling the involuntary labor of prisoners by use of the contract system of labor. We also find that the contract system of labor bears no resemblance to the program established by RCW 72.09.100(1), and therefore, the legislature had the power to establish this beneficial employment program.

FACTS

From the building of the first prisons, prisoners have been expected to work. William J. Farrell, Prisons, Work and Punishment 26 (1994). State legislatures demanded that prisons be self-supporting, creating a drive for not merely work, but profit. Id. Historically, prisoner labor has not been voluntary. See generally David M. Oshinsky, "Worse than Slavery" Parchman Farm and the Ordeal of Jim Crow Justice (1996) (noting whippings, mutilations, starvation, lack of food and shelter, and mortality rates ranging up to 40 percent annually). Convicts were "let out by contract" or "leased" to private employers who often treated them with extreme brutality. See also State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152, 162 (1906) (Whitfield, C.J., dissenting) (condemning convict leasing as causing "outrages and brutalities which have covered [Mississippi] with unspeakable obloquy."). Leasing and contracting out the labor of prisoners was abandoned in the federal penal system in 1900. See Blake McKelvey, The Prison Labor Problem: 1875-1900, 25 J. Am. Inst. Crim. L. & Criminology 268 (1934). Not long afterward, the Ashurst-Sumners Act of 1935, codified at 18 U.S.C. § 1761, criminalized the interstate transport of prison-made goods and effectively ended the private use of prison labor in state prisons. Ashurst-Sumners was amended in the 1970s to allow the interstate transport of goods made by prisoners in state institutions as long as certain requirements were met: most notably that the prisoners be paid "not less than that paid for work of a similar nature in the locality in which the work was performed," 18 U.S.C. § 1761(c)(2); that the programs be certified; that local business and labor be consulted; that wages be set as to not displace noninmate workers; and that the prisoners be volunteers. See Dep't of Justice, Office of Justice Progs., Prison Industries Enhancement Certification Program Guideline, 64 Fed.Reg. 17000, 17009-01 (Apr. 7, 1999) (hereinafter Prison Indus. Enhancement Cert. Program Guideline). This serves the goal of Ashurst-Sumners, to combat "the evils attending the sale of [prison-made] goods, in the open market, in competition with goods manufactured and produced by free labor." S.Rep. No. 906, 74th Cong., 1st Sess. (1935). Wages must be comparable to combat the problem that "free labor, properly compensated, cannot compete successfully with the enforced and unpaid or underpaid convict labor of the prison." Ky. Whip & Collar Co. v. Ill. Cent. R.R. Co., 299 U.S. 334, 351, 57 S.Ct. 277, 81 L.Ed. 270 (1937) (quoting Whitfield v. Ohio, 297 U.S. 431, 439, 56 S.Ct. 532, 80 L.Ed. 778 (1936)).

In 1981, following the invitation of the amended Ashurst-Sumners Act, Washington State promulgated RCW 72.09.100, which created five classes of prison labor including private employment. Today we are concerned only with .100(1), which empowers the Department of Corrections to establish:

(1) CLASS I: FREE VENTURE INDUSTRIES. The employer model industries in this class shall be operated and managed in total or in part by any profit or nonprofit organization pursuant to an agreement between the organization and the department. The organization shall produce goods or services for sale to both the public and private sector.

RCW 72.09.100(1). This program is administered by "Correctional Industries." See RCW 72.09.070. The statute requires that prisoners be volunteers, that they be paid a comparable wage, and that the impact of any employment program be analyzed to avoid displacing free workers. RCW 72.09.100.¹ There are currently 36 programs certified in Washington State; only one, MicroJet, is before the court at this time.

MicroJet employs prisoners to work in the water jet cutting industry. Water jet cutting uses a waterborne stream of particulates to cut metal or stone into precise shapes. MicroJet and the Department of Corrections entered into a contract "for the purpose of providing work training and/or vocational training for offenders of the Washington State Reformatory." Clerk's Papers (CP) at 5 (Contract Agreement). This contract provides MicroJet with approximately 11,280 square feet of space on the grounds of the reformatory, and sets out provisions for maintenance, liability, security, power and other utilities. It also details how prisoners will come to be employed by MicroJet. "The Department shall provide referrals through the Offender Work Coordinator in accordance with the job descriptions and required qualifications set forth by [MicroJet]. [MicroJet] will in turn interview and hire." CP at 9. The contract requires "[m]andatory compliance [with] applicable federal state and local laws, ordinances and regulations." CP at 13.

Water Jet is an informal association of businesses and individuals who do similar work. Water Jet brought suit on various theories in the hope of voiding the MicroJet contract and receiving money damages. The trial court dismissed claims based on Ashurst-Sumners, 42 U.S.C. § 1983, and Washington Constitution article II, section 29, and all claims brought against the Piels, owners of MicroJet, in their individual capacity. Water Jet voluntarily dismissed their remaining causes of action and sought direct review on only the claims based on the state constitution and Ashurst-Sumners. We accepted review and affirm the trial court.

STANDARD OF REVIEW

A duly enacted statute is presumed constitutional. State v. Sullivan, 143 Wash.2d 162, 180, 19 P.3d 1012 (2001). The party challenging the statute must demonstrate its unconstitutionality beyond a reasonable doubt. 1519-1525 Lakeview Blvd. Condo. Ass'n v. Apartment Sales Corp., 144 Wash.2d 570, 577, 29 P.3d 1249 (2001).

STRUCTURE OF ARTICLE II, SECTION 29

First we look at the structure of the constitutional provision. Article II, section 29 contains two clauses: (1) "the labor of convicts of this state shall not be let out by contract" and (2) "the legislature shall by law provide for the working of convicts for the benefit of the state." Both clauses limit the plenary power of the legislature to act or not act as it sees fit. See, e.g., State v. Foster, 135 Wash.2d 441, 458-59, 957 P.2d 712 (1998)

; State v. Russell, 125 Wash.2d 24, 61, 882 P.2d 747 (1994); State v. Gunwall, 106 Wash.2d 54, 67, 720 P.2d 808 (1986). The first clause restricts the traditional power of the State to lease or sell the labor of convicts to private parties under the contract system. The second clause restricts the power of the State to let convicts sit idle; it mandates that the legislature provide work for convicts to benefit the State.

PLAIN LANGUAGE

The words of the constitution are interpreted as they would have been commonly understood at the time the constitution was ratified. State v. Brunn, 22 Wash.2d 120, 139, 154 P.2d 826 (1945); see also Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L.Rev. 491, 509-10 (1984).

The first clause of article II, section 29 provides that "the labor of convicts of this state shall not be let out by contract to any person, copartnership, company or corporation." Therefore, the common meaning in 1889 of "shall not be let out by contract" is critical. An examination of the plain language in historical context demonstrates that "let out by contract" refers to the contract system of convict labor.

The exact phrase is used in a contemporaneous territorial newspaper in an article on the harshness of the contract system of convict labor used in the Washington Territory. The Lewis County Nugget reported prisoners' complaints of being forced to wear heavy balls and chains while working, and of other harsh...