WASHINGTON WATER JET WORKERS ASS’N v. YARBROUGH, 70814-2 (Wash. 8-18-2004)

98 P.3d 788

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.The Supreme Court of Washington.
August 18, 2004.

ORDER DENYING MOTIONS FOR RECONSIDERATION
ALEXANDER, Chief Justice.

The Court having considered MicroJet’s Motion for Reconsideration and the Department of Corrections Motion for Reconsideration;

Now, therefore, it is hereby

ORDERED:

Both motions for reconsideration are denied.

Dissent to Order Denying Motions For Reconsideration IRELAND, J. (dissenting).

The majority at 151 Wash.2d 470, 90 P.3d 42, has failed to regard the significant issues raised by the motions to reconsider and allows the decimation of a carefully crafted prison work program adopted by the Legislature more than two decades ago, which has been a national model. In striking down RCW 72.09.100(1), the majority has failed to articulate and to apply the standard for proof of unconstitutionality, which is proo beyond a reasonable doubt. Tunstall v. Bergeson, 141 Wash.2d 201, 220, 5 P.3d 691 (2000). In disregarding the standard, the court has ignored the doctrine of separation of powers and has intruded on the proper exercise of legislative authority. Island County v. State, 135 Wash.2d 141, 147, 955 P.2d 377 (1998). The majority’s construction of article II, section 29, has stricken the words “for the benefit of” out of the state constitution, contrary to proper rules of construction. Stone v. Sheriff’s Dep’t, 110 Wash.2d 806, 810, 756 P.2d 736. The majority has conflated an “as applied” challenge with a “facial challenge.”Waterjet II, 151 Wash.2d 470, 511, 90 P.3d 42 (2004) (Chambers, J., dissenting). For these reasons, reconsideration should have been granted, the opinion authored by Bridge, J. vacated, and the opinion of this court authored by Chambers, J. reinstated.

However, by far the greatest failing in denying the motion for reconsideration is the court’s refusal of the request to clarify and give direction to the trial court on remand. Reconsideration is deemed unnecessary by the majority since the opinion quoted only the “employer model” language of the statute (rather than the “customer model” language) and that the analysis clearly makes a distinction between state-run and privately-run programs. While that is true, on remand, the trial court should not have to guess. This court should have clearly declared that its decision does not apply to the customer model. To fail to do so hampers the Department of Corrections in working with the existing businesses to bring them into compliance with this court’s view of what the constitution requires. These businesses have operated in good faith and upon representations made by the state for years. The state and its taxpayers should not have to face additional lawsuits to deal with these issues and other consequences of this court’s failure to clarify its decision.

For these reasons, I dissent to the order denying reconsideration.