Washington Prisoner Suit for “Prevailing Wages” from Private Employer Fails
by John E. Dannenberg
The Washington state Court of Appeals has affirmed a superior court’s denial of a “prevailing wage” claim filed by state prisoners employed by Elliott Bay Metal, Inc.
(Elliott), a private employer operating inside prison walls under a state Free Venture Industry program. The appellate court rested its determination upon an earlier ruling that the private prison industry program was facially unconstitutional in Washington.
Shawn Greenhalgh and other Washington state prisoners had sued the Department of Corrections (WDOC) to obtain payment of prevailing wages at their industry job with Elliott. The prisoners complained that Elliott had deceptively misclassified their work duties so as to avoid paying prevailing wages for the type of work they actually performed. The Snohomish Superior Court denied relief on the basis that the statute provided no private cause of action under which to sue.
Further, while the industry program was in fact authorized by state statute (RCW 72.09.100(1)), that statute had since been found unconstitutional in Washington Water Jet Workers Association v. Yarbrough, 151 Wash.2d 470, 90 P.3d 42 (Wash. 2004) (Water Jet II), because Washington’s state Constitution, Article II, section 29 expressly prohibited the hiring out of prison labor to private companies.
A statute that has been found unconstitutional is a nullity, and the law reverts to where it stood before the flawed enactment. That is, there was no Free Venture Industry program and thus no prevailing wage to claim entitlement to. Greenhalgh nonetheless asked the court to apply Water Jet II only prospectively, that is, post-declaration of the enabling statute’s demise due to its unconstitutionality. The court refused, saying that “selective prospectivity, which is what Greenhalgh requests, has been abandoned.” Because Water Jet II was applied retroactively to the litigants in that case, “it applies retroactively and bars Greenhalgh’s claim.”
Accordingly, the appellate court affirmed the superior court’s judgment, but on the alternate grounds of unconstitutionality of the statute, observing that Greenhalgh therefore could not succeed upon any legal theory. See: Greenhalgh v. Elliott Bay Metal, 138 Wash.App. 1013 (Wash.App. Div. 1, 2007), petition for review denied.
In November 2007, Washington’s Constitution, Article II, sec. 29, was amended by referendum to permit prisoners to work in private industry programs. Whether such newly-authorized work programs will adhere to applicable prevailing wage provisions remains to be seen.
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Related legal cases
Greenhalgh v. Elliott Bay Metal
|Cite||138 Wash.App. 1013 (Wash.App. Div. 1, 2007)|
|Level||State Court of Appeals|
Greenhalgh v. Elliott Bay Metal Fabricating, Inc.
|Cite||138 Wash.App. 1013 (Wash.App.Div.1 04/23/2007)|
|Level||State Court of Appeals|
 IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE
 No. 57556-2-I
 138 Wash.App. 1013
 April 23, 2007
 SHAWN D. GREENHALGH, FRANK ANGEHRN, DARYL BURNS, BRADLEY PALMER, LESLIE POUNDS, STEVEN SPURGEON, AND DANIEL TASH, APPELLANTS/CROSS-RESPONDENTS,
ELLIOTT BAY METAL FABRICATING, INC., CHRISTOPHER MICHAELSEN, SIERRA MANUFACTURING, INC., SIERRA CONSTRUCTION, INC., ALLIED METAL FAB, LLC, BRYAN LUST, COMPUCHAIR, INC., MATTHEW PETTIBONE, PHILLIP PRITCHETT, MICROJET, KEN PIEL AND SHARON PIEL, HUSBAND AND WIFE, INDIVIDUALLY AND THE MARITAL COMMUNITY COMPRISED THEREOF, WASHINGTON STATE DEPARTMENT OF CORRECTIONS, AND HOWARD YARBROUGH, DIRECTOR OF CORRECTIONAL INDUSTRIES, RESPONDENTS/CROSS-APPELLANTS.
 The opinion of the court was delivered by: Baker, J.
 UNPUBLISHED OPINION
 Prison inmates sued the Department of Corrections and their private employers, claiming that the employers misclassified their duties to avoid paying prevailing wages. We affirm the trial court's summary judgment dismissal. The statute under which the inmates make their claim has been declared unconstitutional and a nullity. The decision applies retroactively.
 Therefore the inmates have no legal basis upon which to rest any claim for prevailing wages.
 Shawn Greenhalgh represented several Washington State prison inmates who worked for private employers as part of a special prison work program. The program, entitled "Class I: Free Venture Industries," was codified under RCW 72.09.100(1). Free Venture was one of several inmate work programs, the only one that required employers to pay no less than a wage "comparable to the wage paid for work of a similar nature in the locality in which the industry is located,"*fn1 or the "prevailing wage."*fn2
 Greenhalgh's suit against various private employers and the Department of Corrections alleged that the private employers intentionally misclassified the inmates' work duties to avoid paying a higher prevailing wage. The employers and the Department moved for summary judgment, largely on the basis that RCW 72.09.100(1) provided no private cause of action. The Department acknowledged in a footnote that RCW 72.09.100(1) had been declared unconstitutional, but made no legal argument on that point. The issue of the statute's unconstitutionality was not addressed below by the parties or the court.*fn3
 The trial court ordered summary judgment in favor of all defendants on all issues. The judge reasoned that lack of a private right of action under RCW 72.09.100(1) was dispositive. Greenhalgh appealed.
 This court reviews a summary judgment order de novo, engaging in the same inquiry as the trial court.*fn4 Summary judgment is proper if the court, viewing all facts and reasonable inferences in the light most favorable to the non-moving party, finds no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.*fn5 This court can affirm on any basis presented in the pleadings and record.*fn6
 Regardless of how the suit is framed, Greenhalgh cannot prevail unless he demonstrates that the private employers were legally obligated to pay the prevailing wage for the work. If RCW 72.09.100(1) is ineffective, there is no legal basis for their action under any theory.*fn7
 In Washington Water Jet Workers Association v. Yarbrough*fn8 (Water Jet II), a private company sued its competitors and the State, arguing that the Free Venture program was unconstitutional.*fn9 The Supreme Court agreed that the program violated article II, section 29 of the Washington State Constitution, which prohibits inmate labor to be let out by contract to private persons or companies. RCW 72.09.100(1) was declared unconstitutional.*fn10
 An unconstitutional statute is a nullity, and leaves the law as it stood before the enactment of the invalid statute.*fn11 When reviewing on direct appeal a case that involves a constitutionally nullified statute, this court must consider the issues raised on appeal in light of the law as it existed before the unconstitutional statute took effect.*fn12 Because no Class I Free Venture inmate work program existed prior to the enactment of RCW 72.09.100(1), there was no law requiring that such workers be paid the prevailing wage.
 Greenhalgh urges this court to apply Water Jet II prospectively in this case, citing In re Marriage of Anderson.*fn13 Anderson merely applies the rule from Bond v. Burrows,*fn14 that a court may announce a prospective rule in the interests of equity, and refuse to enforce the new rule against the parties in the case before it.*fn15 Selective prospectivity, which is what Greenhalgh requests, has been abandoned. If a new rule is applied by a court to the litigants in the case before that court, it must be applied retroactively by other courts.*fn16
 Water Jet II was applied to the litigants in that case. It applies retroactively and bars Greenhalgh's claim. Greenhalgh can raise no issue of material fact to a jury that will allow him to succeed in his claim. Summary judgment was proper on this alternate ground.
 *fn1 RCW 72.09.100(1).
 *fn2 "Prevailing wage" is the term that was used in the former codification of RCW 72.09.100(1) (2004). Wash. Water Jet Workers Ass'n v. Yarbrough, 148 Wn.2d 403, 429, 61 P.3d 309 (2003), aff'd in part and rev'd in part, 151 Wn.2d 470, 90 P.3d 42 (2004).
 *fn3 Because constitutional issues are in question, the parties are not prohibited from raising the issue for the first time on appeal. RAP 2.5(a)(3).
 *fn4 Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000).
 *fn5 CR 56(c); Ellis, 142 Wn.2d at 458.
 *fn6 LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989).
 *fn7 The federal Ashurst-Sumners Act, 18 U.S.C.A. § 1761 (2007) is cited by Greenhalgh as an independent statutory basis for liability to pay prevailing wages. But Ashurst-Sumners was promulgated in Washington via RCW 72.09.100(1), so his claim would still depend upon the enforceability of that statute. Also, Greenhalgh's request to amend his complaint to include a claim in quantum meruit would have been futile, because the inmates had oral contracts with their employers and do not dispute that they were paid at their contractual rates. Quantum meruit is a remedy applied to prevent unjust enrichment when a contract between two parties has failed. RWR Mgmt., Inc., v. Citizens Realty Co., 133 Wn. App. 265, 275, 135 P.3d 955 (2006). Although the invalidation of RCW 72.09.100(1) rendered the Free Venture program unconstitutional, the individual contracts did not fail. Quantum meruit does not apply.
 *fn8 151 Wn.2d 470, 90 P.3d 42 (2004), cert. denied, 543 U.S. 1120, 125 S.Ct. 1070, 160 L.Ed. 2d 1068 (2005). This opinion, known as Water Jet II, was decided upon reconsideration of Washington Water Jet Workers Ass'n v. Yarbrough, 148 Wn.2d 403, 61 P.3d 309 (2003) (Water Jet I).
 *fn9 Water Jet I, 148 Wn.2d at 408-09.
 *fn10 Water Jet II, 151 Wn.2d at 502.
 *fn11 State v. Speed, 96 Wn.2d 838, 843, 640 P.2d 13 (1982).
 *fn12 Moody v. U. S., 112 Wn.2d 690, 693, 773 P.2d 67 (1989).
 *fn13 134 Wn. App. 506, 141 P.3d 80 (2006).
 *fn14 103 Wn.2d 153, 690 P.2d 1168 (1984).
 *fn15 Bond, 103 Wn.2d at 164-165; Anderson, 134 Wn. App. at 512.
 *fn16 Robinson v. Seattle, 119 Wn.2d 34, 75, 830 P.2d 318 (1992) ("once the Supreme Court has applied a rule of law to the litigants in one case, it must do so with respect to all others not barred by procedural requirements or res judicata.").