In a memo dated May 20, 1996, Director of the Division of Prisons Tom Rolfs states that "The 20 percent designated for cost of incarceration is deposited in a dedicated fund with the department and, by law, may be used only for the purpose of enhancing and maintaining Correctional Industries Work programs until December 31, 2000. Thereafter, these funds will be deposited in the general fund for the state of Washington. While deposited in the Correctional Industries work program account, these funds will assist in expanding work programs for offenders, giving them both opportunity to learn and earn." In essence, funding prison slave labor operations, which is a hand out for private business at the expense of prisoners and their loved ones [see: PLN, April, 1996, 'Microsoft Out-Cells the Competition."]
The 35% statute was passed as part of House Bill (HB) 2010, the omnibus prisoner bashing bill we covered extensively at the time. HB 2010 was initially introduced by Ida Ballasiotes, the rabidly anti-prisoner Republican from Mercer Island who chairs the House "Corrections Committee" [See PLN, Vol. 6, No. 3 and 8]. In its early versions HB 2010 did not contain the 35% statute, instead it contained a provision that prisoners would not be allowed to receive more than $75 a month from sources outside the prison. This version passed the state house. In the final legislative committee the 35% statute was added and the $75 limit was deleted. As a result, there were no public hearings on the 35% statute and there is no legislative history, debate, etc., on it. The entire 2010 bill passed the legislature unanimously and was signed into law by governor Mike Lowry on June 15, 1995, as an "emergency statute" that took effect immediately.
The inherent unfairness of this statute has to be seen in the context that HB 2010 also imposes "user fees" for everything from medical care, to hobby shop, weights, TV, family visiting, all hygiene items, and similar programs. Many prisons have state jobs that pay a maximum of $55 a month for less than half their prison population. In addition to the unemployment faced by prisoners in population, prisoners in control units have absolutely no opportunity to earn money within the prison system. Faced with having to pay for many items previously (and still) paid for by the Inmate Welfare Fund and the general fund prisoners are also being hit with having 35% of all funds sent by family and friends seized. Because the amount seized is tied to the statute that applies to Class I industries it is subject to being raised at anytime by the legislature. While the statute now mandates that 35% of Class I pay and all money sent in to prisoners be seized, this could be doubled or otherwise increased at the legislature's whim.
I filed suit challenging the constitutionality of the statute in federal district court in Tacoma, Washington on June 19, 1995. In my compliant I contended that the statute, on its face, violates the right to due process because it does not provide for any type of hearing before the money is seized; the first amendment because it seizes funds generated from first amendment activity such as writing; and the supremacy clause of the U.S. Constitution because it seizes funds regardless of their source, including from veteran's benefits, § 1983 settlements and judgments, social security, etc. Similar statues have been found unconstitutional on similar grounds in the past. I also filed a motion for a Preliminary Injunction (PI) to enjoin the law while the suit was pending; a motion seeking class certification and for appointment of counsel.
The suit was assigned to Judge Franklin Burgess and Magistrate David Wilson. Initially Wilson recommended that the suit be dismissed as being unripe because the statute had not yet been implemented by the DOC. I objected and Judge Burgess agreed that well established precedent did not require enforcement of unconstitutional statutes before they could be facially challenged in federal court. See: Virginia v. American Booksellers Association, 484 US 383, 393 (1988). Wilson then denied my motion for counsel and used the fact that I was a pro se litigant to deny my motion for class certification because I could not adequately represent a class. He also recommended denial of my motion for a PI. I objected to Wilson's report and recommendation.
By this time it was early March, 1996, almost a year had passed since I first filed suit. At about that time Tom Rolfs, the Director of the Division of Prisons posted notices that the DOC was about to implement the 35% statute and begin seizing 35% of all funds sent in to Washington prisoners. Until now few if any Washington prisoners had shown any concern or interest in the 2010 legislation, apparently assuming the DOC would simply ignore the recently passed laws. In the next few weeks about two hundred prisoners filed generic lawsuits modeled on the first one that I filed challenging the constitutionality of the statute, seeking appointment of counsel, a PI and class certification. Prison officials at some prisons diligently censored blank generic complaints sent to prisoners at Clallam Bay and Airway Heights, fortunately without much effect.
In April, 1996, Judge Burgess granted my motion for class certification and appointment of counsel. He did not do because the case plainly met the criteria of Fed.R.Civ.P. 23 for class certification but because of what he described as the "avalanche of cases" which threatened to overwhelm the court's limited resources. He was clear that it was the volume of cases raising the same issue that determined his decision to appoint counsel and certify the case as a class action suit. In June, 1996, almost one year to the day since I filed the initial suit and PI motion, he denied my motion for a PI. On May 20, 1996, the DOC duly began seizing 35% of all funds sent in to Washington sate prisoners. By June 17, 1996, the DOC had seized over $100,000 from prisoners in more than 6,000 financial transactions.
Chris Youtz of the Seattle law firm of Sirianni and Youtz was appointed by the court to represent the plaintiff class. Mr. Youtz is an experienced trial attorney who specializes in trial litigation. He has successfully represented prisoners in civil rights actions against the DOC where he was appointed as counsel by the courts.
In June, 1996, Mr. Youtz filed an amended complaint and a joint stipulation with the court. In the stipulation the state agrees that if and when the plaintiffs win they will get a refund of all funds seized under this statute. The plaintiff class is defined as persons defined as "inmates" under RCW 72.09.015. I am the class representative for the prisoners. Suzanne Dean is an unincarcerated citizen married to a prisoner at McNeil Island and she regularly sends her husband money which is subject to having 35% seized. She is the class representative for all free citizens who send money which is subject to seizure to members of the prisoner class. Because of the big impact this statute has on the friends and family of prisoners it was important to raise their rights and make clear this affects more than just prisoners.
The amended complaint alleges that RCW 72.09.480 is invalid because it violates the state and federal constitutions. Specifically, it denies equal protection of the law, violates due process, the ban on bills of attainder, the ex post facto clause, the double jeopardy clause, the takings clause of the fifth amendment, the excessive fines clause of the eighth amendment, and impairs federal rights under the supremacy clause. The Washington state constitution is also violated because Article VII, § 1 requires that all taxes shall be uniform on the same class of property. Also violated is RCW 43.135.025 which prohibits the state from expending funds in excess of the state expenditure limit. The state, not surprisingly, contends the statute is constitutional in all respects.
As things stand now, Mr. Youtz will be filing for summary judgment as soon as the state replies to the amended complaint. The summary judgment motion should be filed by the time PLN readers receive this issue. Regardless of how the case is decided in the district court there will be an appeal to the ninth circuit by the losing party.
Overall the case law is relatively good in favor of having the statute struck down. Whether the district court rules in the prisoner's favor remains to be seen. The class action notice is being posted throughout the Washington DOC. Mr. Youtz can be contacted at: Sirianni & Youtz, 1700 Westlake Center, 1601 Fifth Ave., Seattle, WA 98101-1625.
Readers should note this action applies only to Washington prisoners. Washington prisoners should note that Mr. Youtz has been appointed solely for the purpose of attacking the validity of RCW 72.09.480 and he should not be contacted about any other matter. We will run periodic updates on the status of the litigation as it progresses. Probably the next article on this will be the court's ruling on the summary judgment motion. The case is Wright v. Riveland, USDC Case No. C95-5381FDB.
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Related legal case
Wright v. Riveland
|Cite||USDC WD WA, Case No. C95-5381FDB.|