                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                           July 6, 2016



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 47614-2-II

                        Respondent,

        v.                                                    UNPUBLISHED OPINION

 LEO BRITTON BUNKER, III,

                        Appellant.

       MAXA, A.C.J. – Leo Bunker appeals the sentencing court’s imposition of a mandatory

$100 DNA (deoxyribonucleic acid) fee under RCW 43.43.7541. We hold that RCW 43.43.7541

does not violate substantive due process when applied to defendants who do not have the current

or likely future ability to pay the DNA fee and does not violate equal protection when applied to

repeat felony offenders who have to pay the DNA fee again even though that offender’s DNA

already has been collected. Accordingly, we affirm the sentencing court’s imposition of the

DNA fee.

                                              FACTS

       A jury found Bunker guilty of two counts of second degree rape, one count of

harassment-threat to kill, and one count of violation of a protection order. On appeal, this court

remanded for resentencing. The State recognized that given Bunker’s ongoing medical

conditions, his present ability to pay legal financial obligations (LFOs) was doubtful. Bunker’s

defense counsel stated that Bunker had little, if any, ability to pay any LFOs.
No. 47614-2-II


       The sentencing court did not impose any discretionary LFOs, but ordered Bunker to pay

mandatory LFOs, including a $100 DNA fee. Bunker appeals the imposition of the DNA fee.

                                           ANALYSIS

       Bunker argues that the imposition of the DNA fee under RCW 43.43.7541 violates

substantive due process and equal protection. We reject Bunker’s substantive due process

challenge because RCW 43.43.7541 is rationally related to the legislature’s interest in funding a

DNA database. We reject Bunker’s equal protection claim because he fails to demonstrate that

repeat felony offenders are treated differently than first time felony offenders or that RCW

43.43.7541 intentionally discriminates against him, and because imposing the DNA fee is

rationally related to the State’s interest in funding a DNA database.

A.     STANDARD OF REVIEW

       We review constitutional challenges de novo. State v. Schmeling, 191 Wn. App. 795,

798, 365 P.3d 202 (2015). A statute is presumed constitutional, and the party challenging it has

the heavy burden of convincing the court that there is no reasonable doubt that the statute is

unconstitutional. Id.

B.     MANDATORY DNA FEE

       RCW 43.43.754(1)(a) requires that a biological sample be collected for DNA analysis

from every adult or juvenile convicted of a felony or a series of other crimes. To pay for the

DNA collection, RCW 43.43.7541 requires the imposition of a $100 fee.

       Every sentence imposed for a crime specified in RCW 43.43.754 must include a
       fee of one hundred dollars. The fee is a court-ordered legal financial obligation as
       defined in RCW 9.94A.030 and other applicable law. . . . The clerk of the court
       shall transmit eighty percent of the fee collected to the state treasurer for deposit
       in the state DNA database account created under RCW 43.43.7532, and shall



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No. 47614-2-II


       transmit twenty percent of the fee collected to the agency responsible for
       collection of a biological sample from the offender as required under RCW
       43.43.754.

Former RCW 43.43.7541 (2011).

       RCW 43.43.7541 expressly states that every felony sentence “must” include a $100 DNA

fee as a court-ordered LFO. Therefore, the DNA collection fee is a mandatory LFO. State v.

Kuster, 175 Wn. App. 420, 424, 306 P.3d 1022 (2013). For DNA fees and other mandatory

LFOs, “the legislature has directed expressly that a defendant’s ability to pay should not be taken

into account.” State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013).

C.     SUBSTANTIVE DUE PROCESS CHALLENGE

       Bunker argues that RCW 43.43.7541 violates substantive due process when a DNA fee is

imposed on a defendant who does not have the present or future ability to pay the fee. We

disagree.

       1.   Legal Principles

       The Fifth and Fourteenth Amendments to the United States Constitution and article I,

section 3 of the Washington Constitution mandate that no person may be deprived of life, liberty,

or property without due process of law. “Substantive due process protects against arbitrary and

capricious government action.” Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 218-19, 143 P.3d

571 (2006). An action violates substantive due process if a deprivation of life, liberty or property

is substantively unreasonable or is not supported by legitimate justification. Nielsen v. Dep’t of

Licensing, 177 Wn. App. 45, 53, 309 P.3d 1221 (2013).

       The level of review we apply to a due process challenge depends on the nature of the

right involved. Amunrud, 158 Wn.2d at 219. We apply a strict scrutiny standard when state



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No. 47614-2-II


action interferes with a fundamental right. Id. at 220. But we apply a rational basis standard

when a fundamental right is not affected. Id. at 222.

       Here, RCW 43.43.7541 mandates the payment of a fee. Bunker concedes that payment

of a fee does not involve a fundamental right. See In re Pers. Restraint of Metcalf, 92 Wn. App.

165, 176-77, 963 P.2d 911 (1998) (applying rational basis review to a prisoner’s interest in

money). Therefore, we apply rational basis review.

       Under rational basis review, we determine whether a rational relationship exists between

the challenged law and a legitimate state interest. Amunrud, 158 Wn.2d at 222. In making this

determination, “a court may assume the existence of any necessary state of facts which it can

reasonably conceive.” Id.

       The rational basis standard is highly deferential to the challenged action. Nielsen, 177

Wn. App. at 56. “The rational basis test is the most relaxed form of judicial scrutiny.”

Amunrud, 158 Wn.2d at 223.

       2.   Application of Curry and Lundy

       In State v. Curry, the Supreme Court examined the constitutionality of the mandatory

victim penalty assessment under RCW 7.68.035(1). 118 Wn.2d 911, 917, 829 P.2d 166 (1992).

The court did not identify the constitutional basis of the challenge, but stated that the defendants

argued that “the statute could operate to imprison them unconstitutionally in the future if they are

unable to pay the penalty.” Id. The court determined that no defendant would be incarcerated

for the inability to pay the assessment unless nonpayment was willful. Id. at 918. Therefore, the

court held that “the victim penalty assessment is neither unconstitutional on its face nor as

applied to indigent defendants.” Id.



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No. 47614-2-II


       This court in Lundy cited to Curry in discussing the imposition of mandatory LFOs,

including the DNA fee. 176 Wn. App. at 102-03. This court stated, “[O]ur courts have held that

these mandatory obligations are constitutional so long as ‘there are sufficient safeguards in the

current sentencing scheme to prevent imprisonment of indigent defendants.’ ” Id. (quoting

Curry, 118 Wn.2d at 918). Relying on Curry and Lundy, this court recently rejected a

defendant’s claim that the DNA fee violated his substantive due process rights. State v. Mathers,

No. 47523-5, 2016 WL 2865576, *7 (Wash. Ct. App. May 10, 2016).

       These cases suggest that imposition of the DNA fee is not a manifest error based on

substantive due process. But in none of these cases is there any indication that the defendant

made the argument Bunker asserts – that imposing a mandatory fee on offenders who are unable

to pay the fee does not rationally serve the legislature’s interest in funding a DNA database.

Therefore, we must conduct a rational basis analysis of the DNA fee in light of this argument.

       3.   Rational Basis Analysis

       In RCW 43.43.753, the legislature expressly found that “DNA databases are important

tools in criminal investigations, in the exclusion of individuals who are the subject of

investigations or prosecutions, and in detecting recidivist acts.” The legislature concluded that

“it is in the best interest of the state to establish a DNA database and DNA data bank containing

DNA samples submitted by persons convicted of felony offenses and other crimes” designated

by statute. RCW 43.43.753. Eighty percent of the DNA fee mandated by RCW 43.43.7541

must be deposited into an account to be used only for the creation, operation, and maintenance of

a DNA database under RCW 43.43.7532. Under this statutory scheme, the clear purpose of the

mandatory DNA fee is to help fund the creation, operation, and maintenance of a DNA database.



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No. 47614-2-II


See State v. Thornton, 188 Wn. App. 371, 375, 353 P.3d 642 (2015); State v. Brewster, 152 Wn.

App. 856, 860, 218 P.3d 249 (2009).

        Bunker acknowledges that funding the DNA database is a legitimate state interest.

However, he argues that imposing a mandatory fee on offenders who are unable to pay the fee

does not rationally serve that interest.1

        We find that RCW 43.43.7541 is rationally related to the legislature’s legitimate interest

in funding a DNA database on two levels. First, imposing DNA fees on all felony offenders

without assessing their ability to pay is rationally related to funding a DNA database because

although some offenders may be unable to pay the DNA fee, some offenders will be able to pay

it. So the imposition of DNA fees on all offenders creates a funding source for the DNA

database.

        Second, imposing DNA fees on offenders like Bunker who are indigent at the time of

sentencing is rationally related to funding a DNA database because that indigency may not

always exist. We can conceive of a situation in which an offender who is indigent at sentencing

will be able to pay the DNA fee at some future time. So it is not unreasonable to believe that

imposing DNA fees on indigent offenders would result in some funding for the DNA database.

        We hold that imposition of the mandatory DNA fee under RCW 43.43.7541 does not

violate substantive due process.




1
 Bunker highlights that because under RCW 43.43.7541 the DNA fee is paid only after all other
LFOs have been satisfied, that fee would be the least likely LFO to be paid by an indigent
offender.



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No. 47614-2-II


D.     EQUAL PROTECTION CHALLENGE

       Bunker argues that RCW 43.43.7541 violates equal protection because repeat felony

offenders have to pay the DNA fee again even though that offender’s DNA already has been

collected. We disagree.

       1.    Legal Principles

       The Fourteenth Amendment to the United States Constitution and article I, section 12 of

the Washington Constitution guarantee equal protection under the law. “Equal protection

requires that similarly situated individuals receive similar treatment under the law.” Harris v.

Charles, 171 Wn.2d 455, 462, 256 P.3d 328 (2011).

       The threshold requirement of an equal protection challenge is that a defendant “must

establish that he received disparate treatment because of membership in a class of similarly

situated individuals and that the disparate treatment was the result of intentional or purposeful

discrimination.” State v. Osman, 157 Wn.2d 474, 484, 139 P.3d 334 (2006).

       As with substantive due process, the appropriate level of review in equal protection

claims depends on the nature of the classification or the rights involved. State v. Hirschfelder,

170 Wn.2d 536, 550, 242 P.3d 876 (2010). We apply a strict scrutiny standard when state action

involves suspect classifications like race, alienage, or national origin, as well as when the state

action burdens fundamental rights. Id. Intermediate scrutiny applies for semi-suspect

classifications and important rights. Id. Otherwise, we apply rational basis review. Id.

       Here, Bunker concedes that he is not a member of a suspect or semi-suspect class and

that the payment of a fee does not involve a fundamental or important right. Therefore, we apply

rational basis review.



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No. 47614-2-II


       Rational basis review is a highly deferential standard, and this court will uphold a statute

under this standard unless its provisions are wholly irrelevant to the achievement of legitimate

state objectives. In re Det. of Stout, 159 Wn.2d 357, 375, 150 P.3d 86 (2007). Rational basis

requires only that the statute’s means be rationally related to a legitimate state goal, and not that

the means be the best way of achieving that goal. State v. Manussier, 129 Wn.2d 652, 673, 921

P.2d 473 (1996).

       2.    No Unequal Treatment

       Bunker argues that within the group of all felony offenders, the class of felony offenders

who have been convicted more than once are treated differently than first time offenders because

repeat offenders have to pay the DNA fee even though their DNA already has been collected.

We reject this argument for three reasons.

       First, RCW 43.43.7541 does not treat repeat offenders differently than first time

offenders. Under RCW 43.43.7541, every felony sentence must include the DNA fee. This

means that under this statute all felony offenders are treated the same. A claimant must be

treated differently from others who were similarly situated to prevail on an equal protection

challenge. Osman, 157 Wn.2d at 485. Bunker actually is seeking unequal treatment, not equal

treatment. He claims that repeat offenders should be treated differently and relieved from

payment of the DNA fee because they do not need to have their DNA collected more than once.

This type of policy argument can only be resolved by the legislature, rather than this court.




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No. 47614-2-II


       Second, even if RCW 43.43.7541 has a disparate impact on repeat offenders, Bunker still

must provide evidence of intentional or purposeful discrimination. Id. at 484; see also State v.

Johnson, No. 32834-1, 2016 WL 3124893, *2 (Wash. Ct. App. June 2, 2016). He has not done

so here.

       Third, the imposition of the DNA fee does not violate equal protection under rational

basis review. Bunker assumes that the only purpose of the DNA fee is to fund the collection and

analysis of a particular defendant’s DNA. But RCW 43.43.7541 is not so limited. RCW

43.43.7532 provides that DNA fees are used for the operation and maintenance of a DNA

database, not simply to collect DNA from particular defendants. The collection of DNA fees

from all defendants – even repeat offenders who already have provided their DNA – is rationally

related to the legislature’s interest in funding the operation and maintenance of the DNA

database.

       We hold that imposition of the mandatory DNA fee under RCW 43.43.7541 does not

violate equal protection.

                                         CONCLUSION

       We affirm the sentencing court’s imposition of the mandatory DNA fee under RCW

43.43.7541.




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No. 47614-2-II


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      MAXA, A.C.J.



 We concur:




 WORSWICK, J.




 LEE, J.




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