Full Opinion

Filed Washington State Court of Appeals Division Two September 29, 2026 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II In the Matter of the Detention of No. 60552-0-II ARON NIXON. PUBLISHED OPINION CHE, J. ⎯ Aron Nixon, a sexually violent predator (SVP) committed to Department of Social and Health Services’ (DSHS’s) Special Commitment Center (SCC) under chapter 71.09 RCW, appeals a trial court order directing DSHS to propose a less restrictive alternative (LRA) placement meeting statutory requirements within 90 days. Nixon petitioned for conditional release to an LRA under RCW 71.09.090(2)(a), proposed his own LRA placement, and asked the trial court to hold a conditional release trial within 45 days. However, a month earlier, the DSHS’s secretary’s designee had authorized Nixon to petition for conditional release to an LRA under RCW 71.09.090(1)(b). Because Nixon had the designee’s authorization to petition for conditional release to an LRA, the trial court declined to set a conditional release trial within 45 days and ordered DSHS to either identify and submit within 90 days a statutorily satisfactory LRA placement or submit a written certification that it could not identify such a placement. Nixon argues that (1) he had the right to pursue conditional release to an LRA placement of his own proposal and (2) the trial court had to conduct a conditional release trial within 45 days of DSHS proposing an LRA plan. No. 60552-0-II We hold that, because Nixon had the designee’s authorization to petition for conditional release to an LRA, Nixon’s petition had to proceed under RCW 71.09.090(1)(b). Additionally, we hold that, pursuant to the plain language of subsection (1)(b), the trial court was not required to conduct a conditional release trial within 45 days of DSHS identifying a proposed LRA plan. Accordingly, we affirm. FACTS In 2021, a jury found Nixon to be an SVP, and Nixon was committed to the control, care, and treatment of DSHS at the SCC on McNeil Island. At least once a year, for those persons committed into DSHS’s control, care, and treatment under chapter 71.09 RCW, DSHS must complete an evaluation of the “mental condition” of those persons. RCW 71.09.070(1), .060(1). As part of that evaluation, DSHS must consider whether the committed person continues to meet the definition of an SVP, whether conditional release to an LRA is in the best interest of the committed person, and whether conditions can be imposed to adequately protect the community. RCW 71.09.070(2)(a)-(c). RCW 71.09.090 provides the following regarding petitions for conditional release: [(1)](b) If the secretary determines that the [committed] person’s condition has so changed that conditional release to a[n LRA] is in the best interest of the person and conditions can be imposed that adequately protect the community, then the secretary shall authorize the person to petition the court for conditional release to a[n LRA]. Upon receipt of the petition, the court shall order [DSHS] to identify 2 No. 60552-0-II a[n LRA] placement that satisfies RCW 71.09.092 (1) through (4).[1] Once identified, notice of the placement shall be filed with the court and served upon: The prosecuting agency responsible for the initial commitment; any person or persons identified in RCW 71.09.140(2)(a)[2] who have opted to receive notifications under this chapter; and the person and his or her counsel. If [DSHS] cannot identify a placement available to the person that satisfies RCW 71.09.092 (1) through (4) within 90 days, [DSHS] shall provide a written certification to the court, the prosecuting agency responsible for the initial commitment, and the person and his or her counsel, detailing the efforts of [DSHS] to identify a qualifying placement. Upon [DSHS]’s certification, the person may propose a placement that satisfies RCW 71.09.092 (1) through (3). After a less restrictive placement has been proposed by either [DSHS] or the person, the court shall within 45 days order a hearing. (2)(a) Nothing contained in this chapter shall prohibit the [committed] person from otherwise petitioning the court for conditional release to a[n LRA] or unconditional discharge without the secretary’s approval. The secretary shall provide the committed person with an annual written notice of the person’s right to petition the court for conditional release to a[n LRA] or unconditional discharge over the secretary’s objection. The notice shall contain a waiver of rights. The 1 RCW 71.09.092 provides various requirements a court must find before entering an order directing conditional release to an LRA, including (1) [t]he [committed] person will be treated by a treatment provider who is qualified to provide such treatment in the state of Washington under chapter 18.155 RCW; (2) the treatment provider has presented a specific course of treatment and has agreed to assume responsibility for such treatment and will report progress to the court on a regular basis, and will report violations immediately to the court, the prosecutor, the supervising community corrections officer, and the superintendent of the [SCC]; (3) housing exists in Washington that complies with distance restrictions, is sufficiently secure to protect the community, and the person or agency providing housing to the conditionally released person has agreed in writing to accept the person, to provide the level of security required by the court, and immediately to report to the court, the prosecutor, the supervising community corrections officer, and the superintendent of the [SCC] if the person leaves the housing to which he or she has been assigned without authorization; (4) if [DSHS] has proposed housing that is outside of the county of commitment, a documented effort was made by [DSHS] to ensure that placement is consistent with fair share principles of release . . . . 2 Under RCW 71.09.140(2)(a), notice of an LRA placement must be served upon “[t]he victim or victims of any sexually violent offenses for which the [committed] person was convicted in the past or the victim’s next of kin if the crime was a homicide.” 3 No. 60552-0-II secretary shall file the notice and waiver form and the annual report with the court. If the person does not affirmatively waive the right to petition, the court shall set a show cause hearing to determine whether probable cause exists to warrant a hearing on whether the person’s condition has so changed that: (i) He or she no longer meets the definition of a[n SVP]; or (ii) conditional release to a proposed [LRA] would be in the best interest of the person and conditions can be imposed that would adequately protect the community. In November 2024, a licensed psychologist at the SCC completed an annual evaluation of Nixon pursuant to RCW 71.09.070. A month later, based on the November 2024 evaluation, the DSHS secretary’s designee authorized Nixon to petition for conditional release to an LRA under RCW 71.09.090(1). Thereafter, Nixon signed a notice of the right to petition for release sent by DSHS. Nixon elected to exercise his right to petition and requested appointment of counsel. In January 2025, Nixon petitioned the trial court for conditional release to an LRA. Nixon supported his petition with, among other things, a forensic evaluation from a different psychologist, a proposed community treatment plan, and his own proposed LRA placement and conditions. Despite having the designee’s authorization, Nixon argued that RCW 71.09.090 contemplated three avenues for petitioning for condition release to an LRA and asserted that he “elected to petition for conditional release” based on his own evidence and proposed LRA placement. Clerk’s Papers (CP) at 9. Nixon argued that, because he had demonstrated probable cause that conditional release was in his best interest and adequate to protect the community through the psychologist’s evaluation and because he proposed a particular placement meeting RCW 71.09.092’s requirements, the court should set a conditional release trial within 45 days. 4 No. 60552-0-II The trial court held a hearing to determine whether Nixon was entitled to a trial for unconditional release or conditional release to an LRA. On January 31, the trial court entered a written order concluding, among other things: 6. DSHS has authorized [Nixon] to petition for conditional release to an LRA pursuant to RCW 71.09.090(1)(b). 7. [Nixon] has petitioned for conditional release to an LRA. 8. Because under RCW 71.09.090[1](b) the [designee] authorized Mr. Nixon to petition for LRA, DSHS is ordered to identify a placement within 90 days and provide written certification to the Court and other listed parties detailing their efforts under RCW 71.09.090(2)(c)(ii). If DSHS cannot identify a placement that satisfies RCW 71.09.092(1)-(4) within 90 days, then it shall provide written certification to the court and other listed parties, and [Nixon] may propose a placement that satisfies RCW 71.09.092(1)-(4). 9. After a[n LRA] placement has been proposed by either DSHS (subject to this Order) or [Nixon] (upon DSHS’ certification that it cannot identify a qualifying placement) [that] satisfies the relevant requirements of RCW 71.09.092, the Court shall set a hearing to set a trial date on [the] LRA. CP at 224. The trial court accordingly ordered DSHS to propose an LRA satisfying RCW 71.09.092 (1) through (4) or, if DSHS could not identify a placement within 90 days, provide written certification to the court and listed parties detailing their efforts to find a placement. The written order incorporated the trial court’s oral ruling. In its oral ruling, the trial court explained that it was not granting Nixon’s request for a conditional release trial within 45 days because it concluded that RCW 71.09.090 did not require a trial to be set within 45 days. The court explained: I think that [a trial set within 45 days] is procedurally impossible in a post- conviction case. Not only is it highly improbable that either side would be ready for trial; it is virtually impossible that in counties the size of Pierce, King, or Spokane that we are able to clear dockets and set aside a courtroom for a trial that could proceed for a few weeks within 45 days. I just do not believe that’s what the intent was here. 5 No. 60552-0-II Rep. of Proc. at 47. The trial court certified its ruling for immediate appellate review pursuant to RAP 2.3(b)(4).3 Nixon sought discretionary review of the trial court’s order. A commissioner of this court granted discretionary review. Ruling Granting Discr. Rev. (Jul. 24, 2025). Within 90 days of the trial court’s order, DSHS identified a proposed LRA plan for Nixon. A hearing where Nixon intended to challenge DSHS’s proposal was eventually scheduled for July 21, 2025. However, prior to that date, Nixon agreed to pursue an LRA at DSHS’s proposed housing placement so long as he could be treated by a specific sex offense treatment provider. The trial court ordered Nixon conditionally released to DSHS’s proposed housing placement with Nixon’s proposed treatment provider and struck the scheduled hearing. ANALYSIS Nixon raises two arguments based on statutory interpretation of RCW 71.09.090. First, Nixon claims that he was entitled to a conditional release trial on his own LRA proposed placement. As a separate and alternative argument, Nixon claims that RCW 71.09.090 provided Nixon with a statutory right to a trial within 45 days. We disagree with both of Nixon’s claims. 3 RAP 2.3(b)(4) provides that we may grant discretionary review under circumstances where [t]he superior court has certified, or that all parties to the litigation have stipulated, that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may materially advance the ultimate termination of the litigation. 6 No. 60552-0-II I. LEGAL PRINCIPLES OF STATUTORY INTERPRETATION We review de novo questions of statutory interpretation. In re Det. of Abbe, aka Jazper, No. 59123-5, slip. op. at 8 (Wash. Ct. App. Aug. 11, 2026), https://www.courts.wa.gov/ opinions/pdf/D2%2059123-5-II%20Published%20Opinion.pdf. We interpret any statutes with the primary purpose of “‘ascertain[ing] and carry[ing] out the intent of the Legislature.’” In re Det. of Anderson, 185 Wn.2d 79, 85, 368 P.3d 162 (2016) (internal quotation marks omitted) (quoting In re Det. of Martin, 163 Wn.2d 501, 506, 182 P.3d 951 (2008)). We rely first on the statute’s plain language to determine legislative intent, including considering “‘the text of the provision in question, the context of the statute in which the provision is found, related provisions, amendments to the provision, and the statutory scheme as a whole.’” Abbe, slip. op. at 9 (internal quotation marks omitted) (quoting Branson v. Wash. Fine Wine & Spirits, LLC, 5 Wn.3d 289, 294, 574 P.3d 1031 (2025)). If the plain language is unambiguous, subject to only one reasonable interpretation, our inquiry ends. Id.; see also Martin, 163 Wn.2d at 508. Because our civil commitment statutes involve the deprivation of liberty, we strictly construe them. In re Det. of Marcum, 189 Wn.2d 1, 8, 403 P.3d 16 (2017). Strict construction means “‘given a choice between a narrow, restrictive construction and a broad, more liberal interpretation, we must choose the first option.’” Abbe, slip. op. at 9 (internal quotation marks omitted) (quoting In re Det. of Hawkins, 169 Wn.2d 796, 801, 238 P.3d 1175 (2010)). II. MEANS FOR PETITIONING Nixon argues that he had an unqualified right to petition for conditional release to an LRA placement of his own choosing, so long as it satisfied statutory requirements, pursuant to RCW 71.09.090(2)(a). Consistent with our court’s recent holding and reasoning in Abbe, we 7 No. 60552-0-II reject Nixon’s argument that he was entitled to petition for conditional release to his own LRA placement under subsection (2)(a) when he had the DSHS secretary’s authorization. Id. at 16 (holding that, “pursuant to the plain language of RCW 71.09.090, a committed person’s petition for conditional release proceeds under subsection (1)(b) when the person has the secretary designee’s authorization to petition for conditional release to an LRA.”). III. TIMING OF ORDERING A HEARING Nixon also claims that RCW 71.09.090(1)(b) provides “a 45-day speedy trial rule” requiring the trial court to conduct a conditional release trial within 45 days of either DSHS or the committed person submitting an LRA placement. Br. of Pet’r. at 18. We disagree.4 RCW 71.09.090(1)(b) provides, “After a less restrictive placement has been proposed by either [DSHS] or the [committed] person, the court shall within 45 days order a hearing.” (emphasis added). In interpreting a statute, our ultimate goal is to “‘ascertain and carry out the intent of the Legislature.’” Anderson, 185 Wn.2d at 85 (internal quotation marks omitted) (quoting Martin, 163 Wn.2d at 506). To this end, we must not “‘simply ignore’ express terms.” Ralph v. Dep’t of 4 Nixon concedes that this issue is now moot because Nixon has been released to an LRA after accepting the State’s proposed placement. Nixon nonetheless asks us to review this moot issue under the exception for “‘a matter of continuing and substantial public interest.’” Reply Br. at 12 (quoting In re Dependency of L.C.S., 200 Wn.2d 91, 99, 514 P.3d 644 (2022)). In considering the public interest mootness exception, we typically weigh three factors: (1) whether the issue is of a public or private nature, (2) whether an authoritative determination could provide future guidance to public officers, and (3) whether the issue is likely to recur. State v. Vevea, 23 Wn. App. 2d 171, 178, 514 P.3d 779 (2022). These factors weigh in favor of applying the exception because this issue involves interpretation of a statutory provision for the first time, the statute applies to all conditional release petitions with the DSHS secretary’s authorization, the trial court certified review under RAP 2.3(b)(4), and these types of cases generally only reach Washington appellate courts through discretionary review. 8 No. 60552-0-II Nat. Res., 182 Wn.2d 242, 248, 343 P.3d 342 (2014) (internal quotation marks omitted) (quoting In re Parentage of J.M.K., 155 Wn.2d 374, 393, 119 P.3d 840 (2005)). Nor can we “‘add words or clauses to an unambiguous statute when the legislature has chosen not to include that language.’” State v. Larson, 184 Wn.2d 843, 851, 365 P.3d 740 (2015) (internal quotation marks omitted) (quoting State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)). The language of RCW 71.09.090(1)(b), unambiguously, does not require a trial court to conduct a hearing within 45 days. Instead, the provision requires a trial court to “within 45 days order a hearing.” RCW 71.09.090(1)(b) (emphasis added). The use of the term “order” instead of a term such as “conduct” as well as the placement of the temporal requirement of 45 days before the term “order” as opposed to after “a hearing” makes it clear that the legislature intended this provision to govern when the trial court must enter an order setting a hearing, not when that hearing must occur. As a fundamental rule of statutory interpretation, we “‘assume the Legislature means exactly what it says’ in a statute” and must apply the statute as written. Densley v. Dep’t of Ret. Sys., 162 Wn.2d 210, 219, 173 P.3d 885 (2007) (quoting State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001)). The differing language and structure of RCW 71.09.090(1)(b) contrasts with other provisions even within chapter 71.09 RCW. See RCW 71.09.050(1) (“Within forty-five days after the completion of any hearing held pursuant to RCW 71.09.040, the court shall conduct a trial to determine whether the [committed] person is a[n SVP].”), .060(1) (“If the jury is unable to reach a unanimous verdict, the court shall declare a mistrial and set a retrial within forty-five days of the date of the mistrial unless the prosecuting agency earlier moves to dismiss the petition.”). As another well-established rule of statutory interpretation, “[w]hen the legislature 9 No. 60552-0-II uses two different terms in the same statute, [we] presume the legislature intends the terms to have different meanings.” Densley, 162 Wn.2d at 219. Because the plain language of RCW 71.09.090(1)(b) is unambiguous, we hold that, for a petition proceeding under subsection (1)(b), the trial court is not required to conduct a hearing within 45 days of either DSHS or the committed person submitting a proposed LRA placement. However, the trial court must enter an order scheduling such a hearing within 45 days of receiving the proposed placement. CONCLUSION We hold that, because Nixon had the designee’s authorization to petition for conditional release to an LRA, Nixon’s petition had to proceed under RCW 71.09.090(1)(b). Additionally, we hold that, pursuant to the plain language of subsection (1)(b), the trial court was not required to conduct a conditional release trial within 45 days of DSHS identifying a proposed LRA plan. Accordingly, we affirm. Che, J. We concur: Price, A.C.J. Glasgow, J. 10