Washington Supreme Court Case and Opinions from FindLaw. (2023)

Supreme Court of Washington, En Banc.

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 Administrator of the Correctional Industries Division; Washington State Department of Corrections, Division of Correctional Industries; Jet Holdings, Ltd., d/b/a Microjet; and Kenneth Piel and Sharon Piel, Defendants.

Nº 70814-2.

Decided: May 13, 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 the defendants. 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), (National 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 Employers of Class I Industry), (The Workman Fund).

In Washington Water Jet Workers Ass'n v. Yarbrough, 148 Wash.2d 403, 61 P.3d 309 (2003) (Water Jet I), this court found that Article II, Section 29 of the Washington Constitution applies and exclusively prohibits the State from engaging in the contract system prison labor. I went. at 405-06, 61 P.3d 309.   Under this decision, the existing Class I Free Venture Industries prison labor program 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 of reconsideration has been filed by the Washington Water Jet Workers Association (Water Jet). After review, we grant the motion and order a new hearing.

After further hearing, both parties and amici, including the Private Industries in Prison Association and others, and the Washington State Labor Council and others, presented full historical analyzes of the circumstances surrounding the adoption of Article II, section 29. With the Benefit- based on further historical analysis brought to light upon further hearing, we now conclude that both the plain language of Article II, section 29 and the historical context in which it was adopted require us to 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 objectives that the legislature and the Department of Corrections sought to promote when they created the Class I Free Venture Industries program. The legislature was intended to prevent inmate idleness, encourage adoption of the work ethic, provide opportunities for inmate self-improvement, and provide a means of paying restitution. RCW 72.09.010(5)(a)-(c), (7). These laudable goals need not be abandoned as a result of our participation today. We emphasize that there are other opportunities, in the form of state work programs for prisoners, which would not violate article II, section 29.


Classe I Free Venture Industries

Em 1981,1the legislature enacted the Correctional Reform Act, Chapter 72.09 RCW, establishing five classes of prison labor. See RCW first prison labor class in RCW 72.09.100, Class I Free Venture Industries, permits prison labor programs that are operated and managed by private for-profit or not-for-profit entities other than the Department. RCW 72.09.100(1).3

Pursuant to RCW 72.09.100(1), the Department has created an internal work program called “partnerships with the private sector”. See Clerk's Papers (CP) at 22-30. The Department lured employers with the promise of low overhead costs and a motivated and readily available workforce. I went. The Department's promotional materials held the allure of a higher profit margin. CP at 23.   Companies were told they could save on health insurance costs and other employment-related benefits and could potentially receive bidding preferences on state contracts. CP on 24.   The Department, meanwhile, would benefit because inmates would gain training and skills that could help them become an integral part of society upon release, and employment could encourage a strong work ethic among inmates. Imprisoned 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 an agreement with Jet Holdings, Ltd., d/b/a MicroJet (MicroJet) that allows MicroJet to use prison labor from the Monroe Corrections Center in its cutting water gun. 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 a discount. The Department also agreed to provide security and a security orientation session. Under the terms of the agreement, the Department refers inmates to MicroJet, the company interviews and hires the inmates, and then MicroJet pays the inmates' wages to the Department as the inmate-worker administrator.4


Article II, Section 29

When interpreting constitutional provisions, we first look at the plain language of the text and will give you 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 in this state shall not be given by contract to any person, partnership, firm, or corporation, and the legislature shall, by law, provide for the labor of convicts for the benefit of the State.

Const. art. II, § 29.  The words of the text will receive their common and ordinary meaning, determined at the time of their writing. 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 be duly considered.” ).

A. Prison Work Systems

At the time of the Washington constitutional convention, a variety of prison labor systems existed. In order to determine the common and ordinary meaning of article II, section 29 at the time it was drafted, it is useful to briefly review the systems of prison labor that would have been contemplated by delegates to the constitutional convention. 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 forced labor in the late 1800s:  the lease system, the contract system, and the piece rate system. Farrell, supra, at 30.   Under the tenancy system, which prevailed in the Southern states after the Civil War, the State entered into a contract with a private tenant, who agreed to feed, clothe, house, and guard the convict. I went. at 28, 31.   Prison labor under this system was in direct competition with free labor. I went. at 30.

As the rent system placed the convict at the mercy of the lessee, prisoners were often subjected to "unspeakable brutality". Stephen P. Garvey, Freeing Prisoners to Work, 50 Stan. L.Rev., 339, 357 (1998); see also David M. Oshinsky, “Worse Than Slavery” Parchman Farm and the Ordeal of Jim Crow Justice (1996) (discussing the history of the tenancy system in Mississippi). Even so, one historian concluded that the tenancy system died “not because of its relentless cruelty, but because of its susceptibility to market fluctuations; especially during the depressions of the 1870s and 1880s.” Farrell, supra, at 31.

Unlike the tenancy system, the contract system required the state to feed, clothe, house, and guard the prisoner. I went. on 28.   The State selected a private contractor to manufacture its product in or near the prison and provided labor to the convicts. I went. In exchange for the benefit of the prisoners' work, the contractor paid a stipulated amount for the services of each prisoner, provided raw materials and supervised the work of the prisoners inside the prison. I went. While there is some historical evidence that the treatment of prisoners under the contract system was often cruel, at least one commentator has claimed that the treatment of prisoners was not very different from the treatment of free workers. 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). Once again, convict labor under the contract system competed directly with free labor. Farrell, supra, at 30.   Furthermore, this system allowed the State to favor a private contractor with cheap labor and overheads, to the detriment of its competitors.

The piece rate system was much like the contract system, except that the state was paid an agreed amount for each piece or article manufactured by the inmates, rather than a fixed price for each inmate working. I went. in 28.   The contractor provided the raw materials and assumed the financial risk, but in most cases, the State supervised the work of the inmates. I went. on 28-29. Still, the piece rate system engendered the same competition problems as the leasing and contract systems. I went. at 30.   Private enterprise depended on prison labor rather than free labor, and the state chose to favor a private enterprise with the benefits of prison labor.

2. Public system-There were two public systems of convict labor in the late 1800s:  the public account system and the state use system. I went. on 29-30. Under the public accounts system, the state owned and operated all aspects of the prison's manufacturing operation; he supplied raw materials, supervised the in-house workers and sold the product in the market. I went. in 29.   Prisoners did not directly replace free workers, taking jobs in private industry. Furthermore, the State did not favor one company over another with the benefit of prison labor. Still, public account systems produced goods that competed in the market with private sector goods, creating indirect price competition. I went. at 30.

The state use system was more restrictive because the resulting products were not sold on the open market; instead, they were put up for state use only. I went. in 29.   Therefore, the State did not directly compete with manufacturers who employed free labor, nor did the system favor any particular business. I went. in 29.   Variations of the state use system emerged, including public works systems, which employed inmates for public work outside the prison,  usually in the construction and repair of public roads. I went. at 29.

Several states reviewed their prison labor systems shortly before or shortly after the Washington constitutional convention. When a state replaced its contract or lease system, it is important to look at how the system was replaced. For example, during its 1894 Constitutional Convention, New York passed a “state use” regulation, prohibiting the sale or hire of convict labor and requiring prison labor to produce products that the state itself could consume. E. Stagg Whitin, Penal Servitude 7 (1912) (noting the national movement toward state-operated prison industries). Significantly, “[t]he state use system came to prominence in the 1880s when the contract system began to decline. By 1899, the system [of state use] had been authorized by 24 states․” Farrell, supra, at 32.   Furthermore, the proportion of convicts employed in all public systems increased from 32.8 percent in 1885 to 52.2 percent in 1903-04. Neill, supra, at 40-41. Thus, shortly before and shortly after the Washington constitutional convention, there was a tendency to replace private prison labor systems with public state systems.

It is with an understanding of these various convict labor systems, including the contemporary decline of private systems, that we approach the interpretation of Article II, section 29.

B. Simple language

When read in its entirety, article II, section 29 requires the State to engage in one of the State's public prison labor systems (public account or use of the state), but prohibits the State from engaging in any private system of prison labor .

First, we must look at what the provision prohibits. The first clause establishes that “the work of the convicts of this state will not be contracted to any person, company, company or corporation”. Const. art. II, § 29.  The Department argues that “rent” is an artistic term, whose common and ordinary meaning in 1889 referred only to the sale or lease of something as a commodity. Thus, the Department, like the dissent, maintains that Article II, Section 29 prohibits only those systems whereby the State sold or hired convict labor, namely, the lease and contract systems.

The Century Dictionary includes a definition of “leave”:  “[t]o leave or transfer the use of for consideration; put up for hire or hire; farm; lease:  often without:  like, renting a house to a tenant; to hire boats or carriages.” 3 The Century Dictionary 3419 (1889). However, the Department ignores another contemporary definition of the phrase “rented by contract”. Although an 1897 dictionary defined “lease” in part as “[t]he lease or assign for rent or other consideration; put for rent or rent,” that dictionary also defined “rent” as “[to] bestow or assign, as to a claimant; often followed by outside; how to leave a contract. A Standard Dictionary of the English Language 1021 (Isaac K. Funk et al. eds., 1897). The 1891 Black's A Dictionary of Law also defines the term “leave”, when used in the context of contracts, to mean “[t]o award to one of several persons, who have tendered for it, the contract to ․ rendering some ․ service to the government for stipulated compensation”. 2 Henry Campbell Black, A Dictionary of Law 708 (1891).

Furthermore, numerous contemporary cases reveal that courts have consistently used the expression “lease by contract” to refer to the award or award of a contract to a bidder. See, for example, Robbins v. City of Chicago, 71 U.S. (4 Wall.) 657, 666, 18 L.Ed. 427 (1866) (“He may, therefore, leave by contract the building of the house to someone who undertakes to do it.” (emphasis added) (quoting Blake v. Ferris, 1 Selden (5 N.Y.) 48 (1851) )); see also Adm'r v. N. & W.R.R. from Bibb. Co., 87 Va. 711, 727, 14 S.E. 163 (1891) (“the Companhia Ferroviária leased, by contract, the construction of a viaduct ․” (emphasis added)); Storrs v. City of Utica, 17 N.Y. 104, 109 (1858) (“Although the work may be done by contract, the [municipal] corporation still remains in charge of the care and control of the street ․” (emphasis added)). In Washington, this court discussed a code that allows county commissioners, “'at their discretion, leave by contract to the lowest bidder' ” to work on county roads. Giffin v. King County, 50 Wash. 327, 329, 97 P. 230 (1908) (emphasis added) (citing Bal.Code § 3767). Finally, several additional cases used language such as "leaving the contract" to refer to the act of granting or awarding a contract. See, for example, Smith v. Wilkes & McDuffie Counties, 79 Ga. 125, 127, 4 S.E. 20 (1887) (“[The counties] awarded the contract to the lowest bidder ․” (emphasis added)); Turner Ex-Part, 40 Ark. 548, 549 (1883) (“directed the County Court ․ to make an appropriation and proceed to advertise and lease the contract for the building of another Courthouse.” (emphasis added)).

The definition of the term “lease by contract” in these cases is obviously broader than the terms “sell”, “lease” or “lease”. In each case, the government entity or enterprise has not sold, leased, or leased a commodity; this definition does not involve compensation payable by the State. Instead, in each case, the government entity or company has awarded or awarded a contract to a private entity, pursuant to which the private entity would be remunerated to perform a job or fulfill a need. Because these definitions and contemporary jurisprudence reveal the meaning of “lease” which is specifically linked to the expression “lease by contract” and the concept of contracting, we conclude that this is the meaning that the founders and the ratifying public intended to adopt .5

Dissent attempts to distort this definition of “hired by contract” to support their theory that Article II, section 29  is based on the concept that prison labor is a commodity that the state can sell. Although the dissenter admits that “renting by contract” can mean “submitting the contract to bidding”, he then tries to equate the granting of such a contract with the sale of a government property right. Disagreement at 3. However, none of the cases listed above suggest that “leasing by contract” work on a public road or building in any way involves the transfer of an ownership right in the road or building to a private contractor. In short, we conclude that the term “hired by contract” in Article II, section 29 means to award a contract to a private entity, under which the private entity would be remunerated to perform work or fulfill a need. This definition does not involve the sale, rent or lease of government property, nor does it involve the relinquishment of a right to government property in exchange for payment.

More importantly, the language of the first clause of article II, section 29 cannot be independently interpreted; we must consider the provision in its entirety to determine its meaning. The second clause of article II, section 29 explains which systems of prisoner work will be permitted. The clause states: "and the legislature shall, by law, provide for the labor of convicts for the benefit of the state." Const. art. II, § 29 (emphasis added). Thus, a reading of the two clauses together reveals that the convict's work must be used "for the benefit of the state", and not for the benefit of any "person, society, company or corporation". Given the logical relationship between the two clauses of Article II, Section 29, and the contemporary tendency to allow only public prison labor systems that profit solely from the state, it seems clear that the Founding Fathers intended to limit Washington to public prison labor systems only. .

Dissent interprets the phrase "for the benefit of the state" broadly, as an explanation of why the Founders refused to let convicts sit idle. The dissent also argues that the founders chose to limit convicts' work to what benefits the state, rather than limiting convicts to working only for the state. But the historical context surrounding the adoption of Article II, section 29 weakens any foundation for this interpretation. Such a reading simply does not explain the delegates' desire to limit direct competition with free labor and prohibit state favoritism toward chosen private firms. See infra part II C. Therefore, we conclude that the founders and public ratifiers intended to condemn the work for the profit of the State, instead of the private enterprise.6

C. Historical Context

“In determining the meaning of a constitutional provision, the intent of the framers and the history of events and procedures contemporaneous with its adoption may be adequately considered.” Yelle, 55 Wash.2d at 291, 347 P.2d 1081.   Of course, there can be more than one purpose motivating a provision of the state constitution. See, for example, State v. Halstien, 122 Wash.2d 109, 116-17, 857 P.2d 270 (1993). Where history suggests that there was more than one purpose behind a constitutional provision, logic dictates that the provision must be interpreted in a way that satisfies each purpose.

In contemplating the issue of prison labor, the Washington Founding Fathers had to weigh several concerns, including the brutality associated with the tenancy system, the corruption and favoritism associated with private convict labor systems, and objections to convict labor competing with free work. The historical context surrounding the adoption of article II, section 29 reveals that the founders were particularly aware of the impact of prison labor on free labor and the problem of favoring one private company over others with the benefit of prison labor. While the Department's interpretation of article II, section  29 addresses the humane treatment of prisoners, it fails to give due weight to the founders' other concerns. Indeed, the Department would allow for a system that encompassed the very pitfalls Washington's Founding Fathers hoped to avoid. Rather, we recognize that the Washington Founders intended to address three concerns when they adopted Article II, section 29:  they intended to protect free workers from the harmful impacts of prison labor on the local labor market, they intended to protect local businesses from competition unfair prison run programs, and they were intended to protect inmates from the cruelty of the tenancy system.

1. Constitutional Convention - The most convincing evidence that the impact of prison labor on free labor was a predominant concern comes from reports of the constitutional convention itself. There is clear evidence that delegates openly discussed the impact of prison labor on free work. Delegates Oppose Leasing Services of Criminals to Corporations, The Tacoma Daily Ledger, Aug. 10, 1889, p. 4. The Tacoma Daily Ledger article reveals delegates' discomfort with allowing convict labor to be used by private entities. However, it suggests relative support for the use of prison labor for public works. Referring to the committee members involved in the debate, the article notes: “Mr. Weir opposed hiring labor from prison inmates or putting poor labor in competition with honest workers.” I went.; see also The Journal of the Washington State Constitutional Convention:  1889, at 545 (Beverly Paulik Rosenow ed., 1999). T.M. Reed "found that forced labor was demoralizing for the working classes". Ledger, supra, August 10, 1889, p. 4. “Mr. Prosser also opposed the use of inmate labor.” I went. Meanwhile, Mr. Buchanan stated that he “thought convicts should be used in public works, and Mr. Lindsley too.” The Journal of the Washington State Constitutional Convention:  1889, at 545.   At the end of the debate, both clauses of section 29 remained:  one prohibiting convict labor on behalf of private entities and the other mandating convict labor on behalf of the State .

At the convention, President John Hoyt filed a petition from the local labor union requesting that the following clause be included in the constitution:  “Condemned labor shall not be employed in competition with free labor.” Tacoma Suggestions, Ledger, supra, July 18, 1889, at 4. Hoyt shared this request just weeks before the committee's debates on Article II, section 29.   Thus, competition with the private sector was undoubtedly at the forefront. foreground of committee members' minds as they entered the debate.

Amici, including the Private Industries in Prison Association, contend that because the labor petition has not been adopted, we cannot give Article II, section 29 the precise meaning that the authors have refused to adopt. However, it is not surprising that delegates rejected this provision in favor of the one that was actually adopted. Otherwise, all prison labor would have been banned because even public prison labor systems indirectly compete with free labor industries. See Farrell, supra, at 30.   Certainly, the fact that some delegates wanted prison labor to be used only on public works reveals that Article II, section 29 represents a compromise. Article II, section 29 addresses labor issues by preventing direct competition between prisoners and free workers for certain jobs, but does not prevent the sale of products made in prisons on the open market, as long as the goods are produced on state property. program and profits benefit the state.

2. Political climate-In the years immediately preceding the Washington constitutional convention, the political life of our emerging state was dominated by the populist movement, which heavily influenced Washington's constitution. Hugh Spitzer, Washington Constitution's Big Business Suspicion Is Embodied, Seattle Post-Intelligencer, November 19, 1997, on A15. Although the Populist Party of Washington was not formalized until 1891, support for populist philosophies was strong throughout the 1880s. Robert F. Utter & Hugh D. Spitzer, The Washington State Constitution:  A Reference Guide 11 (2002). In 1889, "a wave of populism hit Olympia's back while the constitution was being drafted". Southcenter Joint Venture v. National Democratic  Policy Comm., 113 Wash.2d 413, 445, 780 P.2d 1282 (1989) (Utter, J., concurring).

Populism arose primarily from agrarian roots and emphasized a philosophy of protecting small businesses and working citizens. I went. Central among populist ideals was the protection of the individual against unfair advantages created by coalitions between large governments and politically connected large corporations. See James M. Dolliver in general, Condemnation, Credit, and Corporations in Washington:  100 Years of Judicial Decisions-Have the Framers' Views Been Followed?, 12 U. Puget Sound L.Rev. 163 (1989). “The populists wished to protect the personal, political, and economic rights of both government and [large] corporations, and strove to impose strict limits on the powers of both.” 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, 519 (1984). To achieve this, populists strove to erect a “wall of fire between the public and private sectors”. Hugh Spitzer, Washington's Constitution and How It Affects Us, Seattle Post-Intelligencer, November 16, 1997, on E1. It was with this mindset that the authors drafted Article II, Section 29.   Robert F. Utter, The Right to Speak, Write, and Publish Freely:  State Constitutional Protection Against Private Abridgment, 8 U. Puget Sound L.Rev. 157, 178 (1985).

The national context in which Washington's populists were developing provided ample ammunition for a position that government should resist entanglement with private business. JP Morgan, John Rockefeller and Andrew Carnegie emerged as titans, and with them came the realization that big business had somehow usurped government. Michael Kazin, The Populist Persuasion 31, 41-42 (1995). National scandals in the 1870s such as the Credit Mobilier, Whiskey Ring, and the Belknap scandal, all involving businessmen who abused political connections, would have heightened the populist sentiments of the founders. See Richard Hofstadter, The Age of Reform  71-75 (1955). 2 Thomas A. Bailey, David M. Kennedy and Lizabeth Cohen, The American Pageant, A History of the Republic 514-15 (11th ed. 1998). Credit-dependent and money-hungry farmers blamed big business and the railroads for their financial difficulties. Kazin, supra, at 38.   Labor unions were very aware that companies depended on the government to break strikes. I went. The populist movement was, in part, an attempt to strengthen the government and return control to the people. I went. at 41-42. As a result, it appears that Washington populists must have meant “for the benefit of the state” to mean that prison labor could not be used to benefit private industry.

3. Labour movement - Meanwhile, at the national level, labor movement objections to condemning labor were gaining momentum. Although prison labor was heavily used throughout the 19th century, labor and business interests began to lobby against it in the 1880s and 1890s, claiming that "prison workers and the companies that employed them had unfair advantages". Brian Hauck, Prison Labor, 37 Harv. J. on Legis.. 279, 281 (2000) (referring to the Prison Industry Enhancement Certification Program Guidelines, 64 Fed.Reg. at 17001); see also Farrell, supra, at 98.   Industry and an increasingly organized labor movement began to oppose the free market sale of prison goods. A work on prisons published just three years before the adoption of our constitution states:  “[The] objection to forced convict labor, as now administered in most prisons, is that it is hired for values ​​which honest free laborers are reduced to hunger in the necessary competition that follows․” John P. Altgeld, Our Penal Machinery and Its Victims 111 (1886). At its first convention, the Sindicato Nacional dos Trabalhadores, a forerunner of the Cavaleiros do Trabalho, advocated a system of work for prisoners “'that conflicts less with honest industry outside prisons.'  Farrell, supra, at 98.   Thus, by the time the Washington State Constitutional Convention was convened, forced labor had become increasingly controversial because of its impact on free labor. I went.

As a result, labor interests exerted a powerful influence on creating and amending state convict labor provisions. Farrell, supra, at 98-99. “The long-term and sustained efforts of free workers and manufacturers, rather than concerns about the exploitation of convicts, led to the eventual abolition of private sector involvement in the prison industry.” Misrahi, supra, at 417; see also Garvey, supra, at 342 (“Prison labor disappeared mainly because organized unions and business organizations wanted to eliminate competition.”). The state-use system, which "avoids[d] the objections of free labor and manufacturers" came to prominence in the 1880s after the decline of the contract system. Farrell, supra, at 32.

In Washington, the 1880s was a time of serious social unrest, including labor unrest, as railroad expansion led to rapid urbanization and a population explosion. Utter & Spitzer, supra, at 11.   After the railroad was completed, large-scale unemployment generated additional stresses. Mary W. Avery, History and Government of the State of Washington 197 (1961). The Knights of Labor gained considerable local popular support, and their People's Party won the 1886 mayoral election of Seattle. Id. in 196.   In the late 1880s, serious clashes between the private armies of mine owners and the mine workers in the Cascade coalfields ensured that labor issues influenced debate at the constitutional convention. Carlos A. Schwantes, Radical Heritage:  Labor, Socialism, and Reform in Washington and British Columbia, 1885-1917, in 32 (1979). Two members of the convention directly represented the work:  Matt J. M'Elroy, a logger, and William L. Newton, a coal miner. I went. One historian credits the two pro-labor provisions - Article II, Section 29 and Article I, Section 24 (prohibiting corporations from employing groups of armed men) - directly to Labor influence. I went. The additional impact of labor issues on the adoption of article II, section 29 is evidenced by the fact that delegates to the constitutional convention openly discussed the impact of condemned labor on free labor. See supra part II C 1.

4. History of the Washington Prison System - Populist distrust of government involvement with the private sector was likely honed by the experience of early prison labor systems in the Washington Territory. The Washington Territory originally housed its prisoners in county jails. State Prison:  A History of Adult Corrections in Washington, Perspective, Spring-Summer 1966, in 5 (hereinafter State Prison ). However, the legislature soon recognized the need to provide a central facility and entered into a contract with William Billings, the Thurston County Sheriff, to take custody of all convicts in one location. I went. in 6. Billings agreed to build a territorial prison in exchange for alimony for each convict and the right to use his labor. I went. Under Billings' supervision, convicts worked in logging, coal mining, and barrel making. I went. in 7. There was criticism of the Billings contract at first because the territorial legislature had conferred “'a special privilege to the fullest extent.' Water Jet I, 148 Wash.2d at 414, 61 P.3d 309 (quoting in a Quandry, Washington Standard (Olympia), Nov. 24, 1877, at 1). Indeed, the contract proved to be quite lucrative for Billings and his associates. State Prison, supra, at 7. They enjoyed large profits as a result of their contract with the State, a contract they were awarded, at least in part, because of their political influence. I went. at 6. Furthermore, there is some suggestion that Billings did not pay the territorial government its share of the convicts' wages. Utter & Spitzer, supra, at 67.

In 1886, the territorial government decided to abandon the Billings contract and the “free enterprise” prison system and take over the supervision of prisoners itself. State Prison, supra, at 7. The territorial government then built a new penitentiary in Walla Walla to be administered by the state. I went.; see also Messages of the Governors of the Territory of Washington to the Legislative Assembly, 1854-1889, p. 250 (Charles M. Gates ed., 1940).

Territory officials recognized the need to provide work for convicts and defray penitentiary costs, while at the same time striving to avoid competition with free labor and state favoritism of one private company over another. Inmates at Walla Walla Penitentiary began to work making bricks for the state. State Prison, supra, at 11.   Commissioners later recommended expanding the prison's brick-making business because, among other reasons, "no industry or institution would be materially harmed by it." The Walla Walla Prison:  The Commissioners' Report to the Governor, The Tacoma Daily Ledger, November 27, 1889, at 2 (hereinafter referred to as the Commissioners' Report ). An 1887 superintendent's report to the territorial governor discussed the need to provide work for the convicts in his care and suggested the manufacture of burlap sacks, through a state-owned jute factory, because "it would not [sic] compete [sic] ] ] with any local business.” Washington State Penitentiary, Report of the Superintendent to the Governor and Legislative Assembly of the Territory of Washington 8 (Supp.1887). Furthermore, a letter from the Walla Walla Penitentiary Commissioners states that "we immediately gave consideration to the best means of employing convicts for the benefit of the penitentiary while not harming local industries." Commissioners' Report, supra, at 1. While territory officials recognized the need to provide some form of work for convicts, they were also hesitant to provide work that could directly compete with local businesses and free labor.

In the years immediately following the adoption of article II, section 29, state authorities continued to limit prison labor to public rather than private systems. In 1891, Acting Governor Charles Laughton himself recommended to the legislature that the state establish a jute bag factory in Walla Walla Penitentiary. Governor Laughton wanted us to “provide prisoners with constant employment” with the aim of reducing the net cost of the penitentiary while also benefiting the prisoners themselves. Washington State, Gov. Chas. E. Laughton, Message to the Legislature, at 45 (1891). Governor Laughton assured that:

The Penitentiary is situated in the center of one of the richest grain producing regions in the United States, if not the whole world, where the labor of the convicts for the purposes suggested would in no way compete with the free labor of the citizenry.

I went. Laughton subsequently presented the legislature with several reports by Washington prison commissioners looking into the feasibility of a jute bag factory. Letter from Governor Laughton to the President of the Senate (January 28, 1891) (accompanying the Supplemental Report of Prison Commissioners 1891). These reports reflected the success of a comparable prison factory in California. Supplemental Report of Prison Commissioners, supra, at 15-16 (quoting Letter from the Warden's Office, State Prison, San Quentin, Cal., (July 12, 1890)). Reports were careful to note that jute sacks were currently only sourced from eastern India or Scotland. I went. at age 15. Indeed, California prison wardens also chose the jute bag factory "because of its non-competition with free white labor." I went. at 16.

Therefore, the impact on free labor remained a constant concern, and in developing a Walla Walla prison labor system, early state officials acted as if Article II, Section 29 prohibited all private prison labor systems. Although the 1927 and 1943 legislatures interpreted Article II, section 29 to prohibit the contract labor system, Water Jet I, 148 Wash.2d at 423-24, 61 P.3d 309, the actions of Washington officials immediately after the adoption of Article II, section 29 are arguably more reflective of the founders' meaning.

5. Conclusions - While we agree with the Department that the Washington Founders would not have contemplated a system identical to the Class I Free Venture Industries system, it is clear that the delegates intended (1) to prevent prison labor from replacing free labor and ( 2 ) to prevent the State from favoring one business over another with the benefits of insider work when they adopted Article II, Section 29.   The clear language of Article II, Section 29 reflects that work for the benefit of the State is mandatory, while work for the benefit of a private company is prohibited. If indeed the delegates also intended to impose a system of human labor in prisons, this problem was also resolved because Article II, section 29 allowed only state control over working conditions in prisons.

However, reading Article II, section 29 to prohibit only the contract and tenancy systems of convict labor, as the Department suggests, does not protect against the very shortcomings that the Washington Founding Fathers were trying to avoid. The Department's interpretation allows the private sector to choose prison labor over free labor. It also allows the State to favor a private entity over its competitors with the benefits of prison labor. These are the same problems that Washington's Founding Fathers intended to guard against when they adopted Article II, Section 29.

D.  Other States' Interpretations of Similar Constitutional Provisions

As Washington courts have not previously interpreted Article II, section 29, it is appropriate to turn to other states with similar constitutional provisions for guidance. See Waremart, Inc. v. Progressive Campaigns, Inc., 139 Wash.2d 623, 638-39, 989 P.2d 524 (1999). The cases in this section are particularly instructive because they interpret the constitutional language on which they are based or are nearly identical to ours.

1. California-The Constitution of the State of California provides:  “ 'Convict labor shall not be contracted to any person, partnership, business or corporation, and the Legislature shall, by law, provide for convict labor for the benefit of State.' ”  Pitts v. Reagan, 14 Cal.App.3d 112, 115, 92 Cal.Rptr. 27 (1971) (citing Cal. Const. art.   X, § 1 (formerly art.   X, § 6, revoked in 1960)). In addition to parity in language, legal scholars have recognized the influence that the California constitution had on shaping the Washington constitution. See Dolliver, supra, at 170 (quoting Arthur S. Beardsley, Sources of the Washington State Constitution, reprinted in 1987-88 Washington Legislative Manual 362 (1987)). California's constitutional convention was held just a decade before Washington's, in a similar political climate, where a surprisingly similar debate arose. See Pitts, 14 Cal.App.3d at 118, 92 Cal.Rptr. 27.   For example, when  a motion was made to delete the language, “'[the] labor of convicts shall not be contracted out to any person, partnership, firm or corporation' ”, several representatives spoke in favor of its retention: “ '[it is] a burden on free workers that the State contracts out the labor of these prisoners' ”; “‘a very big problem is that this puts this prison work in competition with free white work’ ”; and “'[the] interests of the working classes are directly in conflict with the interests of those who employ hired labor.' ”  Id. at 118-19, 92 Cal.Rptr. 27 (citing Delegates Condon, Freud and Beerstecher). The Washington delegates' comments echoed those same sentiments just 10 years later. California's interpretation of its Article X, Section 1 is therefore instructive in interpreting our Article II, Section 29.

In Pitts, the California court of appeals interpreted the effect of the convict labor clause of its constitution into an "Emergency Harvest Program," under which convict labor was used to harvest crops owned by private sector during periods of alleged labor shortages. I went. at 114-15, 92 Cal.Rptr. 27.   The court concluded: “[The] snap language of article X, section 1 is intended to have a broader meaning – that the state may not award indentured labor to private employers, regardless of whether the state or the convicted or both receive corresponding consideration.” I went. at 117-18, 92 Cal.Rptr. 27.   It did not matter to the court whether the convicts consented or received “normal wages”. I went. at 118, 92 Cal.Rptr. 27.   Instead, the court was concerned about the competition with the private sector that the use of the convict's labor presented, stating:

Little imagination is needed to envision the effects of convicts in this way competing in the state labor market. And there seems little doubt that the terse words of article X, section 1, “The work of convicts shall not be performed by contract” to private individuals, was not intended to permit such a practice.

I went. at 118, 92 Cal.Rptr. 27.

The dissent argues that the Pitts court invalidated the work program in question because there were no contracts between the producers and the inmates, only between the producers and the state. Although the Pitts court noted that  “[t]here were no individual contracts between producers and prisoners,” id. at 116, 92 Cal.Rptr. 27, there are no indications that this was the basis for his detention. Furthermore, the dissent implies that, as the Pitts court held that a “convict may sell or lease his services to a private person,” id. at 117, 92 Cal.Rptr. 27, the court would have validated our Class I industries. However, this ignores the critical problem recognized by the Pitts court, namely, that there was a contract between the state and private entities, just as there must be in our Class I industries program. Class I. The Pitts court defined the question before it as “whether the state, without profit or consideration to itself, is permitted by article X, section 1, to furnish convict labor to private individuals or organizations under contract or other agreement ”. I went. There is no indication in this statement that the court was particularly concerned about the existence of contracts between convicts and the private sector. Furthermore, the California court found that the Emergency Harvest Program violated article X, section 1, despite the fact that California does not sell, lease or hire convict labor. Therefore, Pitts' opinion clearly does not support the Department's interpretation of the phrase "contract lease".

Pitts facts are quite similar to the previous ones. In both cases, prison labor is being used by a private industry under a contract with the State. Indeed, allowing prisoners to pick fruit during a labor shortage is arguably more beneficial to the state than the MicroJet contract at issue here. Given the closeness of the adoption schedule of our states' constitutions and the nearly identical language of the provisions, the California court's conclusion is particularly persuasive.

A 1980 California Attorney General Opinion discussed whether California's work permit system was prohibited by the section of the California Constitution interpreted in Pitts. The opinion concluded that California's furlough system was permissible because "the state is not supplying the labor under contract to the employer." 63 ops. Lime. Att'y  Gen. At the. 79-1016, at 33, 36 (1980). Under the California system, the work permit administrator does not contract the prisoner's employment, he only helps to find employment for the prisoner. I went. Of course, Washington's Class I Free Venture Industries system is critically different from California's license system. RCW 72.09.100(1). Here, the state not only helps the prisoner to find employment in the open labor market; it hires a private company to manufacture its product inside the prison and employ prisoners. Therefore, the California Attorney General's opinion does not contradict our conclusion that the State cannot grant the benefit of prison labor by contract.

2. Illinois-A similar provision in the Illinois constitution mirrors ours. Beardsley, supra, at 376.   Indeed, in drafting Article II, section 29, the Washington delegates were particularly influenced by the Illinois constitution. Bond v. Burrows, 103 Wash.2d 153, 157-58, 690 P.2d 1168 (1984); Journal of the Washington State Constitutional Convention, supra, at 545 n. 53 (citing Ill. Const..  1870 (Amendment of 1886)); Beardsley, supra, at 376.   The Fourth Amendment to the Illinois State Constitution reads: “'It shall be hereby unlawful for the commissioners of any penitentiary or other reformatory institution in the State of Illinois to rent by contract to any person, or persons, or corporations , the work of any convict confined within the said institution.' ”  K. & S. Mfg. Co. v. Illinois, 7 Ill. Ct. Class 107, 108-09 (1932) (citing III. Const. (amend.4)). This amendment went into effect in 1886 after organized labor staged a successful boycott of prison-made products, echoing the influence of labor in Washington during the time of our constitutional convention. See Blake McKelvey, The Prison Labor Problem:  1875-1900, 25 J.Crim. L. & Criminologia 254, 256 n. 6 (1934).

In 1903, Illinois enacted legislation that reflected the language of its constitution but allowed prisoners to work under certain conditions. See K. & S. Mfg., 7 Ill. Ct. Class at 110.   Section 5 of the Illinois Act of 1903 to Regulate the  Employment of Convicts and Prisoners provided the Board of Prison Industries,

"shall not . enter into any contract whereby the labor or time of any prisoner or convict in any penitentiary or reformatory in this State or the proceeds or proceeds of his labor is hired, rented, outsourced, given or sold to any person, business, association or corporation; except that said prisoners or convicts in said penal or reformatory institutions may work for, and the products of their labor may be alienated to, the State, or to or for any public institution owned or administered and controlled by the State. ”

I went. (citing Act of 1903, § 5, repealed by 730 Ill. Comp. Stat. 5/8-5-1 (January 1, 1973)). This section parallels the “public benefit” clause of Article II, Section 29 of the Washington State Constitution, and therefore sheds additional light on the interpretation of our own provision.

In K. & S. Manufacturing, a manufacturing company sought damages under a contract with the Department of Public Welfare to manufacture furniture at Stateville Prison. I went. at 107-08. In interpreting the fourth amendment to the Illinois Constitution, the state court of claims7replied:  “[The] language of this provision is simple and its purpose cannot be misunderstood. The intention was to prevent prison labor from competing with free labor”. I went. at 109.   The court recognized unequivocally:  “Any contract the effect of which is to permit prisoners to work violates this clause of the Constitution and is wholly void, and no cause of action can be based thereon.” I went.

Supplementing its interpretation of the Fourth Amendment, the Illinois court found the 1903 law "in harmony with the letter and spirit of the Fourth Amendment to the Constitution." I went. at 111.   Thus, prison labor could be used for the benefit of the State, as long as prison labor did not compete with the private market:

It is clear . that the legislator's intention was to prevent prison labor from competing with free labor; who intended prisoners to be employed in jobs and in the making of articles that could be used by the State, by State institutions, and by State school and road districts, so that the products of their labor would not get into [sic] goods sold on a market open to the general public.

I went. As in California's Pitts case, the Illinois court's reasoning is persuasive and supports our conclusion that the Department's program, while authorized by law, violates the Washington Constitution.

3. Other States - The Department cites the case law of New York, Utah and Oklahoma to support its contention that Washington Article II, section 29, prohibits the prison contract labor system only because, in the Department's reasoning, the The term “indentured release” refers only to the practice of selling, renting or leasing the labor of prisoners. In addition, the divergence cites other cases for the proposition that Article II, item 29 only prohibits the State from selling, renting or leasing convict labor. However, it is clear that none of these cases interpret language such as Article II, section 29 to mean that the State can grant the benefit of convicted labor to a private company. Indeed, several of the sources cited reflect a preference, if not a mandate, for public prison labor systems.

The Department cites People v. Hawkins, 157 N.Y. 1, 51 N.E. 257 (1898). The Hawkins court interpreted the New York Constitution to permit products manufactured by convicts to be sold to the general public, provided that the convict's work is not "'extracted, hired, given or sold to any person, business, association or corporation .' " I would. at 12, 51 N.E. 257 (citing N.Y. Const. 1894, art. 3, § 29). Although the court noted that the constitution "simply abolished ․ the system of contract labor in prisons," it did so because “the profits from the labor of convicts  were secured by contractors or private individuals.” I was. at 13, 51 N.E. 257.   Therefore, the Hawkins court recognized that goods produced in a state-run prison labor system could be sold to the public in general because the profit would benefit the State, and not the private initiative.

The Department also cites Ass'n v. Mabey of Utah Manufactures, 63 Utah 374, 226 P. 189 (1924), claiming that the Utah Supreme Court clearly understood “contract” to mean the contract labor system of prison inmates. However, the Utah court clearly drew a distinction between permissible state work programs and impermissible private systems. In Utah Manufacturers, the court found that a state program had "none of the elements of 'convicted labor hiring'" and therefore did not violate the Utah constitution. I went. at 189.   The Utah Manufacturers' Court distinguished a case that had been decided the previous year involving a convict work program in which a private company provided the materials, machinery, and supervision while the prison provided the convict labor, manufacturing, and utilities. I went. at 189-90 (discussing Price v. Mabey, 62 Utah 196, 218 P. 724 (1923)). The Price court overturned that program, finding that it was "in essence a contract for the hiring of prison labor." Price, 218 P. at 727.   Utah Manufacturers' and Price's interests, therefore, do not conflict with our interest today.

The Department also refers to Rice v. State, 108 Okla. 4, 232 P. 807 (1924), which involved a shirt factory inside a state-operated penitentiary. The Department maintains that Rice rejected only the lease and contract of employment systems. However, like Utah Manufacturers, this case was about whether or not the state business was for public rather than private purposes. I went. in 810.   The court only addressed whether goods made by convicts could be sold on the open market, even if they could indirectly compete with goods produced by free labor. The Rice court concluded that the state program was constitutional, stating:

[It is] necessary that the confined be employed․ The fact that such employment might produce a commodity to be sold on the market in competition with goods produced by free labor does not make the object private.

The state has a right to the labor and service of its convicts while confined in its prisons, and has authority to produce out of that labor things of commercial value.

I went. at 810 (emphasis added). Thus, the Rice court in no way endorsed prison labor programs that would benefit private enterprise or compete with free workers. See also Sibel v. State Bd. of Pub. Affairs, 206 Okay. 433, 244 P.2d 307, 308 (1952) (authorizing the construction of a binding within a state penitentiary, to be used only “'by departments, institutions, and agencies of the State and its political subdivisions.' ”   (citing Okla . Title Stat. 74, § 123 (1951))).

Thus, the Department appears to ignore the closing arguments of Hawkins, Utah Manufacturers' and Rice, stating that the cases support a ban only on the convict labor contract system. In contrast, all of these cases reflect that as long as a prison labor program is one of the public systems, applicable state constitutional provisions do not prohibit them.

Some of the additional cases cited by the dissent only refer to, define or describe specific contracts or the employment contract system in general. See, for example, Nugent v. State of Arizona Imp. Co., 173 U.S. 338, 338-42, 19 S.Ct. 461, 43 L.Ed. 721 (1899). Others merely establish that prisoners were not parties to contracts between states and private companies under the labor contract system. See, for example, Thompson v. Bronk, 126 Mich. 455, 85 N.W. 1084 (1901). As the features of the contractual system are not disputed, the relevance of these cases is questionable. The relevance of Walton County v. Franklin, 95 Ga. 538, 538, 22 S.E. 279 (1894) is also in doubt because the Walton court only noted that county officials could no longer lease convicts to a private individual, without discussion of the relevant statutory language.

However, several of the cases cited by dissent actually reflect the trend that states were beginning to allow only public prison labor systems while prohibiting private systems. These cases would not conflict with our reading of Article II, section 29.   See, for example, State ex rel. Davis v. Mortensen, 69 Neb. 376, 384, 95 N.W. 831 (1903) (noting Nebraska's plan to "eventually provide means for the employment of all prisoners without the intervention of contractors"); Ove Gnatt Co. v. Jackson, 205 Ind. 51, 56, 184 N.E. 553 (1933) (Treanor, J.) (allowing goods produced on a state farm to be sold on the open market and noting “[i]t has also been the policy of the General Assembly to abolish the contract of employment ․ and to substitute, therefore, manufacture of goods on behalf of the State.”  (emphasis added.)); State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152, 155-56, 159 (1906) (noting that the Mississippi Constitution permitted prisoners to work on public works projects or on state farms, but only under state supervision).

In short, California and Illinois courts have interpreted comparable constitutional provisions to prohibit private prison labor systems that benefit private enterprise. Holdings in New York, Utah, Oklahoma and other states are not in conflict because they do not speak of a prohibition comparable to that adopted in Washington, or allow public, rather than private, systems to continue in those states.


Application of Article II, Section 29 to the Class I Free Venture Industries Program

We must evaluate the Class I Free Venture Industries program in light of the clear meaning of article II, section 29 and the purposes that motivated its adoption. In the Class I program, the prison labor benefit is granted to a private company under a contract with the State. RCW 72.09.100(1). While prisoners work voluntarily under contracts like MicroJet's, they cannot freely choose to work for one of MicroJet's competitors. The company enjoys additional benefits including rent-free premises and significantly reduced overhead costs. Most importantly, prison workers are employed in jobs that companies like MicroJet would have to fill with free workers. Thus, the Class I program generates exactly the problems Washington's Founding Fathers intended to avoid by adopting Article II, section 29.

Ultimately, the Class I system permits contract prison labor for the benefit of a private company or corporation in direct violation of article II, section 29.  RCW 72.09.100(1) unconstitutionally endorses this private system of prison labor. As RCW 72.09.100(1) is unconstitutional, deference to the legislature cannot save it.

The benefits of providing employment opportunities for convicts are not in dispute. Even though Class I industries are unconstitutional, there remain four valid classes of work programs for inmates under RCW 72.09.100(2)-(5),8which are clearly state-operated systems. Work release programs as set out in chapter 72.65 RCW also remain.9The Class I industries program at issue in this case is different from all such permissible programs because Class I involves a condemned employment contract between a private enterprise and the State, for the benefit of the private enterprise. We therefore overrule Water Jet I, 148 Wash.2d 403, 61 P.3d 309, in so far as it is inconsistent with this opinion.


Claims against Kenneth and Sharon Piel

Water Jet also named MicroJet owners Kenneth and Sharon Piel as defendants, although it did not allege a specific wrongdoing against the Piels. These allegations were unwittingly rejected by the lower court. Water Jet had the opportunity to present facts that would show that the corporate form had been abused and that the disregard of the legal entity was justified. He failed to do so.

To break legal personality and reach the Piels, Water Jet must demonstrate that the corporate form was used to violate or evade a duty, and that it must be disregarded to avoid losses to an innocent party. Meisel v. M & N Modern Hydraulic Press Co., 97 Wash.2d 403, 409-10, 645 P.2d 689 (1982). Courts in other states have rejected similar arguments in a motion to dismiss for failure to assert a claim. See First Realvest, Inc. v. Avery Builders, Inc., 410 Pa.Super. 572, 600 A.2d 601, 604 (1991). We conclude that dismissal was also appropriate here.



Upon reconsideration, we are bound to conclude that RCW 72.09.100(1) directly conflicts with Article II, Section 29 of the Washington Constitution. However, we emphasize that the laudable public policy goals that led the legislature to adopt RCW 72.09.100(1) can be achieved through alternative state-run programs. We also conclude that the lower court's dismissal of the claims against the Piels was appropriate. We affirm Water Jet I's rejection of the plaintiffs' claims based on the Ashurst-Sumners Act, 18 U.S.C. § 1761 and 42 USC § 1983.  Water Jet I, 148 Wash.2d at 427, 61 P.3d 309.   In short, we nullify Water Jet I, 148 Wash.2d 403, 61 P.3d 309, inasmuch as it is inconsistent with this opinion - and refer back to the lower court for further proceedings consistent with this opinion.

After due deliberation, our founders relinquished a significant commodity; the historical power of the State to sell the involuntary labor of prisoners on the open market. Today, we must decide whether our founders incidentally prohibited prisoners from establishing working relationships with private entities, a working relationship unheard of in the 19th century. As we conclude that Article II, Section 29 of the Washington Constitution does not contemplate, much less prohibit, the private employment of prisoners, we disagree.


History is critical to our analysis because we interpret constitutional terms as they would commonly be understood at the time of their enactment. See State v. Brunn, 22 Wash.2d 120, 139, 154 P.2d 826 (1945); State ex rel. Pub. Useful. Dist. At the. 1 of Skagit County v. Wylie, 28 Wash.2d 113, 127, 182 P.2d 706 (1947). Our initial task is to determine how “hired by hire” would have been understood in 1889.   Most skim the dictionary definitions and briefly examine the different modes of convict labor in the late 19th century. Though erudite, most ignore a fundamental historical fact:  the founders did not consider the right of prisoners to privately contract their own labor because, at the time, prisoners did not have the legal capacity to do so. According to the law in force at the time, the State itself owned the labor of prisoners. See E. Stagg Whitin, Penal Servitude, in i (1912) (“The State has a right of ownership in the labor of the prisoner․ This right of ownership the State may lease or retain for its own use, in the manner set forth in state constitutions. and acts of legislatures.” (emphasis added)). This right of ownership in the labor of prisoners, now  largely abandoned by the march of history, cf. Const. from the US change. XIII, underlies each of the five models of prison work duly catalogued, but not properly contextualised, by the majority.

Most look at many contemporary definitions of terms in Article II, section 29.   Again, read correctly, underlying all these definitions is the principle that “lease by contract” historically referred to a contractual, however labeled, mechanism. whereby some good, service or project controlled by one entity would be procured by another. As most note, a contemporary dictionary defined “lease” in part as “[t]he lease or assign for rent or other consideration; put up for hire or rent; grant or assign, as to a claimant; often followed by outside; how to leave a contract. A Standard Dictionary of the English Language 1021 (Issac K. Funk et al. eds., 1897); see also majority at 47.1Read correctly, this definition accords with the historical fact underlying article II, section 29.

Although our language has changed quite a bit over the past 100 years, “renting” an apartment is still renting an apartment. For example, Cole v. McKey, 66 Wis. 500, 29 N.W. 279, 281 (1886) (“the defendant rented his house, in apartments, to several tenants” (emphasis added)); see also Gowen v. Phil. Exc. Co., 1843 WL 5003, at *3,40 am. Ten. 489, 5 Watts & Serg. 141 (Pa.1843) (“Its apartments are rented for dances, concerts, lectures, auctions, exhibitions and other purposes ․” (emphasis added)).

Likewise, to "lease" a contract to build a road is to put the contract up for bidding, see, for example, majority in 48 (citing Giffin v. King County, 50 Wash. 327, 329, 97 P. 230 (1908) ), just as “leasing” a contract to construct a university building is putting it out to tender, RCW 28B.20.140 (originally enacted by the Laws of 1909, ch. 97, § 9).

And “extending” indentured convict labor is selling, leasing, renting, or outsourcing the state's ownership of convict labor to a private individual. Const. art. II, § 29.  Most cite sound sources. This draws the wrong conclusion from them.

The majority conclusion that “for the benefit of the state” means that something is right. Majority at 48-49. The majority's implicit position that this means that no entity other than the state government can benefit from the work of convicts is unsupported. The 1899 dictionary definition of “benefit” is quite broad:  “Everything that contributes to promoting prosperity and personal happiness or adds value to property; advantage:  profit”. Noah Webster, American Dictionary of the English Language 125 (Chancey A. Goodrich & Noah Porter, rev. ed. 1899). By the time of our constitutional convention, "it had become recognized, and was thus recognized by all students interested in prisoner reform, that some kind of regular work was necessary and essential to order within prison walls." Utah Mfrs.' Ass'n v. Mabey, 63 Utah 374, 226 P. 189, 189 (1924). In other words, it was recognized that work itself would benefit the state. This benefit “cannot be estimated in dollars and cents, as all the best penologists of today show”. State of Wash., Annual Report of the Penitentiary Commissioners 4 (1890) (analyzing the benefit of prison labor to the State). Providing useful work benefits the State by reducing the cost of corrections, providing useful skills, and, as recognized from the earliest days of our State, providing "great benefit mentally, morally, and physically." Washington State, Gov. Chas. E. Laughton, Message to the Washington Legislature 45 (1891).

Most maintain that "it seems clear" that Article II, section 29 was "intended to limit Washington to public convict labor systems only". Majority in 48.   We disagree. There is considerable evidence that Article II, Section 29 was a compromise entered into by our Founders (as those negotiated across the country at the time) between different interest groups to ameliorate the “antecedent harm” of convict hired labor. Although some believed that the problem with convict employment was unfair competition, see Convict Labor, Delegates Oppose Leasing the Services of Criminals to Corporations, Tacoma Daily Ledger, Aug. 10, 1889, p. 4 (available in Washington State Constitutional Convention 1889: Contemporary Newspaper Articles at 4-85 (Penny A. Hazelton ed., 1998)), others believed the problem was government and the corporate corruption it caused. For example, Whitin, supra, at 6; James Leonard Fitts, The Washington Convention of 1889, at 95 (1951). Others, however, abhorred the inhumane conditions that often accompanied this form of forced labor. See generally Neil B. Corcoran, Bucoda A Heritage of Sawdust and Leg Irons 24-26 (1976); The Penitentiary, Seattle Weekly Chronicle, October 4, 1883, at 4 (criticizing the contract system in a former Washington prison as “a system wrong in principle and doubly wrong in practice). , cruelty, and negligence of the men thus kept.”); see also United States Industrial Commission, Report of the Industrial Commission on Prison Labor 6-8 (1900) (hereinafter Report on Prison Labor).

Against this background of considerable antecedent damage destroyed by doomed employment contracts, our constitutional convention reached an agreement. It declared that "[T]he labor of the convicts of this state is not to be discharged by contract." Const. art. II, § 29.  It prohibited the State from selling the merchandise of hired labor and determined that convicts should work for the benefit of the State. Nowhere in the constitution did our Founders mandate the creation of a public use system, and only a public use system. The term was well known; such a thing would have been too easy. If the abolition of forced labor in competition with free labor had been the compromise, the language suggested by the work to achieve this objective would have been adopted. See Tacoma Daily Ledger, July 18, 1889, p. 4 (available in Washington State Constitutional Convention 1889, supra, at 4-24) (discussing the suggested language it provides:  “Forced labor shall not be employed in competition with free labor.”). The fact that the writers rejected the language of labor advocates is significant. State ex rel. Gallwey v. Grimm, 146 Wash.2d 445, 464-65, 48 P.3d 274 (2002) (the court may consider language rejected by constitutional convention to determine meaning).

Most note the different concerns that led to Article II, section 29.   Majority on 49.   But most feel that competition with the private sector was somewhat more equal than the other concerns, apparently due to the proximity in time of a specific labor union request that the condemned employment contract be addressed in the new constitution. Majority at 49-50. This exaggerates the evidence. First, the concern was not a surprise; organized labor across the country has been fighting convict indentured labor for decades at the time of our constitutional convention. William J. Farrell, Prisons, Work and Punishment 32, 98 (1994); Blake McKelvey, The Prison Labor Problem:  1875-1900, 25 J, Am. Criminal Inst. L. & Criminology 268 (1925); Whitin, supra, at 7; majority at 51.   Our founders were well acquainted with labor concerns. Second, progressive opposition to convict hiring had been building for decades, and there was a strongly progressive streak in our state at that time. See, for example, Theodore Roosevelt, The New Penology, in American Academy of Political and Social Science, The Annals:  Prison Labor 4-5 (1913) (In 1913, an explicit part of the Progressive platform was the abolition of the prison labor system. convict contract); 1 Herbert Hunt & Floyd C. Kaylor, Washington West of the Cascades 359 (1917); majority at 50-51. Third, there was a growing awareness of the appalling corruption endemic to the selling of state power to force labor. Majority at 52; see generally Washington. State Department of Inst., State Prison - A History of Adult Corrections in Washington, Perspective 5-7 (Spring Summer 1966); Report on Prison Labor, supra, p. 32; Farrell, supra, at 93; cf. majority in 51.   All these concerns entered the final compromise. We have no reason to believe that workers' concerns were so prevalent in the minds of our founders that the words of the constitution must yield.

Properly understood, the overwhelming authority of other states' cases also undermines the majority's historical interpretation. We disagree with the majority analysis of the California Court of Appeals decision in Pitts v. Reagan, 14 Cal.App.3d 112, 92 Cal.Rptr. 27 (1971). See most at 53-54. Key to the California court's decision was the fact that, in effect, the state leased the work of the convicts by contract. “There were no individual contracts between producers and prisoners. Existing contracts were ․ between producers and state authorities”. Pitts, 14 Cal.App.3d at 116, 92 Cal.Rptr. 27.   The California court correctly concluded that this was precisely what the California State Constitution prohibited.

Furthermore, the Pitts court stated, and all parties agreed, that a "convict may sell or lease his services to a private person, and that probation or other state officials may assist in such rehabilitation efforts." Pitts, 14 Cal.App.3d at 117, 92 Cal.Rptr. 27 (emphasis added).2This accurately describes our Class I industries.

We agree with the majority that, in general, we pay special attention to the Illinois Constitution and recognize that the Court of Claims' interpretation is contrary to our interpretation. Majority in 55-56 (citing K. & S. Mfg. Co. v. Illinois, 7 Ill. Ct. Cl. 107 (1932)). But the Court of Claims is a department of the Illinois Secretary of State's Office, not an appellate court. See the Illinois Court of Claims, About the Department of the Court of Claims, available at www.sos.state.il.us/depts/claims/about.htm (last accessed May 4, 2004). A careful analysis of the K. & S. opinion reveals that it is much less about the constitution and much more about a 1903 statute that did exactly what most say our constitution did; prohibited competition. K. & S., 7 Ill. Ct. Class at 107.   Courts decide cases based on the law, if possible; in K. & S., the court reached the right decision under Illinois law. If the Court of Claims were an actual court instead of effectively a branch of the executive, we would be tempted to dismiss its reflections on the Illinois Constitution as mere dictates.

All other out-of-state cases examined by the majority, read correctly, are based on state ownership of convict labor; the same thing as Article II, section 29 prohibits the State from selling. These cases do not support the majority's implicit contention that our state constitution has banned competition as competition. For example, Ove Gnatt Co. v. Jackson, 173 N.E. 335 (1930), 177 N.E. 607, 607 (Lockyear, J., dissenter) (Ind.Ct.App.1931) (“the contract system ․ the state sells the labor of prisoners to private companies or individuals, and in each the contractor and prison authorities agree on a task that is supposed to constitute a reasonable day's work.”); Rice v. State, 108 Okla. 4, 232 P. 807, 813 (1924) (founders motivated by mercy, not a desire to end competition with free labor); State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152, 162 (1906) (describing the old system of leasing prisoners between corporations and the state); State ex rel. Davis v. Mortensen, 69 Neb. 376, 95 N.W. 831 (1903); see Thompson v. Bronk, 126 Mich. 455, 85 N.W. 1084 (1901)  a petitioner who had been subject to a convict under a contract of employment whose conviction was later overturned was not entitled to compensation); People v. Hawkins, 157 N.Y. 1, 13, 28, 51 N.E. 257 (1898) (“hiring” convict labor refers to “previously existing ․ practices under which convict labor became an object of bargaining and sale” and “unpaid and compulsory labor”); Nugent v. State of Arizona Imp. Co., 173 U.S. 338, 338-42, 19 S.Ct. 461, 43 L.Ed. 721 (1899) (describing legally authorized contracts for prison labor); Walton County v. Franklin, 95 Ga. 538, 538, 22 S.E. 279 (1894) (county officials have no power to hire convicts, so the contract to do so is unenforceable). The fact that many of these states were using a public-use system at the time is simply not relevant.


We must not forget that this is a face-to-face challenge to a statute and program that, by state and federal law, specifically requires the Department of Corrections to take steps to ensure that free labor is not displaced. The majority position that a prison labor program that replaces free labor would so frustrate the Founders' intention to propose Article II, section 29 that it should be found unconstitutional is predictable, but not in a face challenge. Majority at 53.   A program that actually replaces free work, as applied, may violate Article II, Section 29-As Enforced. Since displacement is illegal under state and federal law, we will likely never need to get to the question of whether displacement is unconstitutional. The question answered by the majority is simply not before this court within this face challenge.

We agree that our founders were trying to avoid many evils. Majority in 53.   It may be that if our founders had contemplated the private employment of prisoners, they would have prohibited the private employment of prisoners. But we don't invalidate legislation on a maybe. Because that's what this court does today, we respectfully disagree.


1. Two years earlier, Congress had amended the Ashurst-Sumners Act, 18 U.S.C. § 1761, to permit the interstate transport of goods made by prisoners in state institutions, provided that certain criteria are met.

2. Since then, the legislature has amended RCW 72.09.100(1), but the relevant language remains essentially the same.

3. CLASS I:  FREE ENTERPRISE INDUSTRIES. Employer model industries in this class must be wholly or partially operated and managed by any for-profit or not-for-profit organization pursuant to an agreement between the organization and the department. The organization must produce goods or services for sale to both the public and private sectors.․The department of corrections must provide appropriate security and custodial services at no charge to participating firms. Prisoners working in free enterprise industries must do so. it by your own choice. They will receive a salary equal to the salary paid for work of a similar nature in the locality where the industry is located, as determined by the director of penitentiary industries. If the principal cannot reasonably determine comparable salary, pay must not be less than the federal minimum wage. RCW 72.09.100(1). The statute also establishes internal job classes for “tax relief industries”, “institutional support industries”, “community work industries” and “community restitution programs”. RCW 72.09.100(2), (3), (4), (5). These additional classes are not before this court for consideration.

4. Amici, including the Private Industries in Prison Association, the Workman Fund and Class I Employers, requested that this court take judicial notice of the facts contained in a newspaper article describing the recent success of a waterjet cutting business in Washington. We reject the motion because the article is not relevant to the disposition of the matter before us and because the content of the newspaper article is not a proper subject of judicial notice. See ER 201(b); see also Hoppe v. State, 78 Wash.2d 164, 170 n. 3, 469 P.2d 909 (1970) (holding that when the appellant referred only to newspaper articles and an undated motel rate schedule, he did not present official facts of which the court could have judicial knowledge). Amici concurrently filed a statement of additional authority, the matter of which was considered by the court.

5. When read in accordance with this definition, article II, section 29 states that the work of convicts shall not be awarded or awarded by contract to any private entity. Such a definition is not contrary to the use of the term “rent by contract” in a contemporary territorial newspaper, which suggested that the Washington Territory should “'take [prison labor] in charge rather than release it by contract.' ” Water Jet I, 148 Wash.2d at 410, 61 P.3d 309 (citing Visit to the Territorial Penitentiary, Lewis County Nugget (Chehalis), Aug. 4, 1883, at 1).

6. Amici, including the Private Industries in Prison Association, assert that because Article II, Section 29 is not located in the Bill of Rights of the Washington Constitution (Article I), it should not be construed to protect the interests of free labor or business. We disagree. Although article II, section 29 limits the power of the state, we cannot ignore that the founders' intention, in part, was to prevent prison labor from competing directly with free labor.

7. The Illinois Court of Claims has exclusive jurisdiction over most claims against the state. The court is composed of judges and a chief justice appointed by the governor and confirmed by the Senate. 2000 Illinois Court of Claims Rules and Statutes, Summary of Jurisdiction at iv; see also Illinois Court of Claims, Judges & Commissioners, available at www.sos.state.il.us./departments/court-of-claims/judges.html (last accessed April 30, 2004). Therefore, the court's interpretation of a similar Illinois law, while by no means dispositive, may be instructive in our interpretation of Article II, section 29.

8. The four additional work programs for prison inmates are Class II:  Tax Reduction Industries, RCW 72.09.100(2); Class III:  Institutional Support Industries, RCW 72.09.100(3); Class IV:  Community Work Industries, RCW 72.09.100(4); Class V:  Community Restitution Programs, RCW 72.09.100(5). All such programs must be operated by or under the supervision of the Department and therefore do not violate our constitution.

9. The work release program is also distinguishable because work release residents are not limited to a single employer within a given industry; they must find work in the open labor market.

1. Other historical dictionary definitions agree. “Leave” is defined as:  “Grant ownership and use against compensation; rent; how, to let a property for a year; rent a room to tenants; often followed out. Noah Webster, American Dictionary of the English Language 766 (Chancey A. Goodrich & Noah Porter, rev. ed. 1899) (emphasis added); chord Noah Webster, American Dictionary of the English Language 659 (Chancey A. Goodrich, rev. ed.   1853) (“Lease; year;  rent a room to tenants;  often followed by out, as, to rent a farm.”) . Another defines “lease” in this context as “[t]o award to one of the several people who submitted proposals for the same, the contract to ․ rendering some ․ government service for stipulated compensation.'  Majority at 47 (quoting 2 Henry Campbell Black, A Dictionary of Law 708 (1891)).

2. As additional support, the opinion was interpreted in California in the same way by the California Attorney General: In Pitts v. Reagan (1971) 14 Cal.App.3d 112, 92 Cal.Rptr. 27, this provision (then of art. 10, § 1 of the Constitution) was considered to mean “that the State cannot assign [that is, allow it to be used, rent or permit] to condemn contract work for private employers , regardless of whether the state or the convicts or both receive corresponding consideration.” (14 Cal.App.3d on p. 118, 92 Cal.Rptr. 27 (emhpasis [sic] added).)   In this case, the work was arranged according to the contract between the employer and the state, not with the prisoner (id., at p. 116, 92 Cal.Rptr. 27), and after reviewing the proceedings of the California Constitutional Convention from 1878 to 1879, the court felt the "quite strong likelihood that the delegates, or at least the majority, were concerned with the abolition of convict indentured labor in general ․” (Id., pp. 118-119, 92 Cal.Rptr. 27.)63 Ops. Cal. Att'y Gen. No. 79-1016, at 33, 36 (1980) (second emphasis added). according to my interpretation.


ALEXANDER, C.J., and JOHNSON, and MADSEN, JJ., and KATO, J. Pro Tem., agree.


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