ΒΆ42 Briefly, Food Democracy solicited and received almost $300,000 in donations from 7,000 people to support Initiative 522. State ex rel. Pub. Disclosure Comm'n v. Food Democracy Action! , 5 Wash. App. 2d 542, 544, 427 P.3d 699 (2018).
The statutory language does not support that reasoning, particularly where protected speech may be involved. Additionally, in State ex rel. Public Disclosure Commission v. Food Democracy Action!, the Court of Appeals noted, "The increased penalty for intentional violations suggests that the legislature contemplated unintentional conduct underlying some violations." 5 Wash. App. 2d 542, 550, 427 P.3d 699 (2018) (citing Dailey , 129 Wash.2d at 577, 919 P.2d 589 ). As Justice Johnson points out, the majority seems to accept that all concealment violations could be subject to treble damages.
4. Selective Enforcement ΒΆ51 In its statement of additional authorities, GMA cites State ex rel. Pub. Disclosure Comm'n v. Food Democracy Action! , 5 Wash. App. 2d 542, 544-48, 427 P.3d 699 (2018), review denied , 195 Wash.2d 1030, 468 P.3d 620 (2020), on the issue of whether the State selectively pursued treble damages against GMA. GMA references a footnote in GMA II that stated: "We express no opinion as to whether the State selectively pursued treble damages in this case, but that issue may be relevant to GMA's excessive fines claim on remand."
Under either posture, we would still be required to first evaluate the punitive nature of the challenged assessment. Long, 198 Wn.2d at 159; see also State ex re I. Wash. State Pub. Disclosure Comm'n v. Food Democracy Action!, 5 Wn.App. 2d 542, 552-53, 427 P.3d 699 (2018). As such, Clement's failure to establish that either the DNA collection fee or CVA are punitive similarly prevents us from reviewing the proportionality factors.