Filed
Washington State
Court of Appeals
Division Two
August 11, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Detention of: No. 59123-5-II
MARCUS ABBE, aka JAZMINE ANNE PUBLISHED OPINION
JAZPER,†
Appellant.
CHE, J. — This case presents two questions concerning chapter 71.09 RCW proceedings.
First, as a matter of first impression in Washington, this case raises the question whether a person
committed under chapter 71.09 RCW can propose their own less restrictive alternative (LRA)
placement under RCW 71.09.090(2)(a) when the Department of Social and Health Services’
(DSHS) secretary designee has authorized them to petition for conditional release under RCW
71.09.090(1)(b). Second, it raises the question whether a trial court may grant a State’s motion
for summary judgment under CR 56 in chapter 71.09 RCW proceedings.
We hold 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. Additionally,
we hold that (1) the summary judgment procedure was appropriate under these circumstances,
(2) the State’s sought after remedy did not render CR 56 inapplicable, and (3) the appellant in
†
The appellant is now known as “Jazmine Anne Jazper”.
No. 59123-5-II
this case fails to show that a continuance should have been granted below. Accordingly, we
affirm.
FACTS
A. RCW 71.09.090
Every year, DSHS must complete an evaluation of the “mental condition” of those
persons committed into DSHS’s control, care, and treatment under chapter 71.09 RCW. RCW
71.09.070(1), .060(1). DSHS must also report whether the committed person continues to meet
the definition of a sexually violent predator (SVP), whether conditional release to an LRA is in
their best interest, and whether conditions could be imposed that would adequately protect the
community. RCW 71.09.070(2). The legislature has declared that these requirements are
“necessary for the immediate preservation of the public peace, health, or safety, or support of the
state government and its existing public institutions.” LAWS OF 2015, ch. 278, § 4.
In 2021, the legislature passed SB 5163, which amended the procedures for transitioning
SVPs from total confinement into the community and sought to “increase community safety
through successful transition.” LAWS OF 2021, ch. 236, § 1. Effective July 2021, RCW
71.09.090 provides the following regarding petitions for conditional release:
(1) . . . .
(b) If the secretary determines that the person’s condition has so changed that
conditional release to a less restrictive alternative 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
less restrictive alternative. Upon receipt of the petition, the court shall order the
department to identify a less restrictive alternative placement that satisfies RCW
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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 the department cannot identify a placement available to the person that
satisfies RCW 71.09.092 (1) through (4) within 90 days, the department 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 the department to identify a qualifying placement. Upon the department’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 the
department or the person, the court shall within 45 days order a hearing.
(2)(a) Nothing contained in this chapter shall prohibit the person from otherwise
petitioning the court for conditional release to a less restrictive alternative 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 less restrictive alternative or
unconditional discharge over the secretary’s objection. The notice shall contain a
waiver of rights. The secretary shall file the notice and waiver form and the annual
1
RCW 71.09.092 provides various requirements that the trial court must find before entering an order directing conditional release to an LRA, including that:
(1) The [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 special commitment center; (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 special commitment center if the
person leaves the housing to which he or she has been assigned without
authorization; (4) if the department has proposed housing that is outside of the
county of commitment, a documented effort was made by the department 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 person was convicted in the past or the victim’s next of kin if the crime was a homicide.”
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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 sexually violent predator; or (ii)
conditional release to a proposed less restrictive alternative would be in the best
interest of the person and conditions can be imposed that would adequately protect
the community.
RCW 71.09.097, a statute created through SB 5163, states, “[i]n accordance with RCW
71.09.090 . . ., [DSHS] shall have the primary responsibility for developing a less restrictive
alternative placement.” RCW 71.09.097(1).
B. Jazper’s 2023 Petition
In 2001, a trial court found Jazper to be an SVP and civilly committed her to DSHS’s
custody at the Special Commitment Center on McNeil Island for control, care, and treatment
under chapter 71.09 RCW.
Upon completing its annual evaluation of Jazper’s condition in September 2021 and
again in September 2022, DSHS’s secretary designee authorized Jazper to petition for
conditional release to an LRA under RCW 71.09.090(1)(b). In its authorization, the secretary
designee identified the Pierce County Secure Community Transition Facility (SCTF) as the
proposed LRA placement.
In May 2023, Jazper petitioned the trial court for conditional release to an LRA. In her
petition, Jazper identified two bases for her petition: RCW 71.09.090(1)(b) and RCW
71.09.090(2)(a). Jazper proposed her own LRA placement at a privately-owned location. She
requested that the court schedule a trial on her proposed LRA placement. The State agreed that
Jazper was permitted under RCW 71.09.090(1)(b) to petition for an LRA through the secretary
designee’s authorization, but argued that, with the secretary designee’s authorization, Jazper
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No. 59123-5-II
could not petition under RCW 71.09.090(2)(a) and request a trial on her proposed placement.
The trial court ordered DSHS to propose an LRA satisfying the requirements of RCW
71.09.092(1) through (4) but reserved on the question whether Jazper could propose her own
LRA.
In August, within 90 days after the trial court’s order, DSHS proposed an LRA plan that
would place Jazper at SCTF and asserted that its proposed plan met the statutory requirements.
Jazper disagreed with the proposed plan, specifically with the proposed placement at SCTF. At
the State and Jazper’s request, the trial court set a trial date, as well as an earlier hearing date to
determine whether DSHS or Jazper’s plan would be at issue at trial.
In October, Jazper filed a “Waiver of Right to Show Cause” with the trial court, asserting
that she was waiving her right to petition based on the secretary designee’s authorizations and
exercising her right to “independently petition for conditional release with my own probable
cause showing.” Clerk’s Papers (CP) at 268. After a hearing on which plan would be litigated at
trial, the trial court denied Jazper’s proposed LRA plan and ordered DSHS’s proposed plan to be
the one at issue in the conditional release trial. In its written ruling, the court made the following
conclusions of law:
3. Because the secretary authorized [Jazper] to petition for conditional
release, [Jazper]’s petition for conditional release is pursuant to RCW
71.09.090(l)(b), not RCW 71.09.090(2).
4. RCW 71.09.090 does not permit [Jazper] to alternatively petition for
conditional release pursuant to RCW 71.09.090(2) because [Jazper] is not
“without” the secretary’s authorization.
5. When the Legislature passed SB 5163, it explicitly vested DSHS
with primary responsibility for developing an LRA placement. RCW 71.09.097(1).
Under the plain language of RCW 71.09.090(l)(b), [Jazper] may only propose their
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own LRA placement if DSHS is unable to develop an LRA placement within ninety
days that satisfies the requirements of RCW 71.09.092(1)-(4).
6. Because DSHS did timely propose an LRA placement in
compliance with RCW 71.09.090(l)(b) here, [Jazper] may not propose her own
LRA placement.
CP at 302. Jazper moved for reconsideration, but the trial court denied her motion.
In November, Jazper moved to compel DSHS to produce certain discovery after serving
it with two subpoenas duces tecum. Jazper sought, among other things, discovery related to
conditions at SCTF, which she argued were relevant to whether conditional release to SCTF was
in her best interest and would allow for conditions to adequately protect the community.
Before the trial court ruled on Jazper’s motion to compel, the State filed a motion for
summary judgment, requesting that Jazper be conditionally released to the proposed LRA with
placement at SCTF. The State argued that, based on the anticipated evidence at trial, the State
could not meet its burden of proving that an LRA was not in Jazper’s best interest and that no
conditions could be imposed to adequately protect the community. The State concluded it could
not meet its burden of proof because the State anticipated that its own expert would opine that
conditional release to the proposed LRA plan would be in Jazper’s best interest and that
conditions could be imposed to adequately protect the community. The State also argued that
Jazper offered no testimony contradicting the State’s expert’s opinions about DSHS’s proposed
placement.
Before considering the State’s motion for summary judgment, the trial court granted
Jazper’s motion to compel discovery and ordered DSHS to produce documents by a deadline of
five days before the court was set to hear the State’s summary judgment motion. Jazper had also
requested to have a week after receiving the subpoenaed documents to prepare for depositions of
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No. 59123-5-II
DSHS’s agents. The trial court reserved ruling on setting a date for depositions until the parties
had sufficient time to review DSHS’s records and to confer about dates and times for the
deposition.
Jazper then responded to the State’s summary judgment motion and argued, among other
things, that the State was not entitled to summary judgment beyond that provided for in RCW
71.09.094.3 Jazper also argued that there were genuine issues of material fact and that
depositions were pending for some witnesses, which were anticipated to “detail[] the current
conditions of SCTF and the services available to residents at SCTF.” CP at 545. Jazper also
noted that, “[d]iscovery for DSHS witnesses is not complete and depositions are pending.” CP at
547. Jazper stated that she reasonably anticipated “identifying SCTF operations and conditions
relating to staffing levels, medical services, medication management, chaperone services,
employment opportunities, supervision, and programming services not in the best interest of
[Jazper] and could affect community safety.” CP at 547. Jazper requested that the trial court
deny the State’s summary judgment motion but did not expressly request a continuance of the
motion based on any outstanding discovery. Jazper made one reference to CR 56(f) at the
hearing on the State’s summary judgment motion, stating, “And the import of the additional
discovery, Your Honor—and I will just cite that CR 56(f) allows the Court, where there is
3
RCW 71.09.094(1) provides:
Upon the conclusion of the evidence in a hearing held pursuant to RCW 71.09.090
or through summary judgment proceedings prior to such a hearing, if the court finds
that there is no legally sufficient evidentiary basis for a reasonable jury to find that
the conditions set forth in RCW 71.09.092 have been met, the court shall grant a
motion by the state for a judgment as a matter of law on the issue of conditional
release to a less restrictive alternative.
7
No. 59123-5-II
pending discovery, to delay the decision on the motion for summary judgment and we are in this
position exactly because of the delay with the discovery for SCTF.” Rep’t of Proc. (RP) (Dec.
13, 2023) at 93.
Five days after the deadline for the State to produce discoverable documents to Jazper,
the trial court held a hearing on the State’s motion for summary judgment, granted the motion in
the State’s favor, and struck the trial date.
Jazper sought discretionary review of the trial court’s order granting summary judgment.
A commissioner of this court granted discretionary review and later denied the State’s motion to
modify that ruling. Ruling Granting Discr. Rev., (Dec. 16, 2024); Ord. Den. Mot. to Modify
(Feb. 10, 2025).
ANALYSIS
I. RCW 71.09.090
Jazper argues that, despite the secretary designee authorizing her to petition for
conditional release to a specific LRA, Jazper should have been permitted to pursue her own
proposed LRA placement. She asserts that RCW 71.09.090(2)(a)’s language that “‘[n]othing . . .
shall prohibit the person from otherwise petitioning the court for conditional release,’” provides
her with an unqualified right to petition with her own proposed placement and the option to
waive a right to petition based on the secretary designee’s authorization. Br. of Appellant at 13.
We disagree.
A. Legal Principles
We review de novo questions of statutory interpretation. In re Det. of Martin, 163 Wn.2d
501, 506, 182 P.3d 951 (2008). Our primary purpose in interpreting a statute is “‘to ascertain
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and carry out the intent of the Legislature.’” In re Det. of Anderson, 185 Wn.2d 79, 85, 368 P.3d
162 (2016) (quoting Martin, 163 Wn.2d at 506). Through this inquiry, 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.’” Branson v.
Wash. Fine Wine & Spirits, LLC, 5 Wn.3d 289, 294, 574 P.3d 1031 (2025) (quoting Ass’n of
Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d 342, 350, 340
P.3d 849 (2015)). If the plain language is unambiguous—subject to only one reasonable
interpretation—our inquiry ends. Branson, 5 Wn.3d at 294; see also Martin, 163 Wn.2d at 508.
Because the 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
requires that, ‘given a choice between a narrow, restrictive construction and a broad, more liberal
interpretation, we must choose the first option.’” In re Det. of Hawkins, 169 Wn.2d 796, 801,
238 P.3d 1175 (2010) (quoting Pac. Nw. Ann. Conf. of United Methodist Church v. Walla Walla
County, 82 Wn.2d 138, 141, 508 P.2d 1361 (1973)).
B. A Petition for Conditional Release To an LRA Based on RCW 71.09.090(2)(a) Is
Unavailable To a Committed Person When the Secretary or Their Designee Has Authorized
Submission of a Petition for Conditional Release
The statute at issue, RCW 71.09.090, sets out two bases for a conditional release petition
and corresponding procedures depending on the petition’s basis.
First, under RCW 71.09.090(1)(b), the secretary must authorize a committed person to
petition the trial court for conditional release to an LRA “[i]f the secretary determines that the
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No. 59123-5-II
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.” Once the trial
court receives a petition under this subsection, the court must order DSHS to identify an LRA
placement satisfying RCW 71.09.092(1) through (4). RCW 71.09.090(1)(b). If no such
placement is identified within 90 days, then the committed person “may propose a placement
that satisfies [statutory requirements].” RCW 71.09.090(1)(b). Once either DSHS or the
committed person has proposed an LRA placement, the trial court must order a conditional
release hearing within 45 days. RCW 71.09.090(1)(b).
Second, subsection of RCW 71.09.090(2)(a) provides, “Nothing contained in this chapter
shall prohibit the person from otherwise petitioning the court for conditional release to a less
restrictive alternative . . . without the secretary’s approval.” The subsection then details a
requirement that the secretary must provide a committed person with annual written notice of
their “right to petition the court for conditional release to a less restrictive alternative . . . over the
secretary’s objection.” RCW 71.09.090(2)(a). Such notice must include “a waiver of rights”
and, if the committed person does not “affirmatively waive the right to petition,” the trial court
must set a show cause hearing to determine whether a conditional release trial is warranted.
RCW 71.09.090(2)(a).
Jazper asserts that RCW 71.09.090(2)(a) gave her the right to waive the right to pursue a
petition for conditional release under subsection (1)(b) and instead petition for conditional
release pursuant to subsection (2)(a) for a placement different than that proposed by DSHS.
Jazper relies on the language in subsection (2)(a) that states, “[n]othing contained in this
chapter shall prohibit the person from otherwise petitioning the court for conditional release to a
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No. 59123-5-II
less restrictive alternative . . . without the secretary’s approval.” In particular, Jazper relies
heavily on this subsection’s use of the term “nothing.” Br. of Appellant at 15. However, words
in a statute “‘must be read in the context of the statute in which they appear, not in isolation or
subject to all possible meanings found in a dictionary.’” Citizens All. for Prop. Rts. Legal Fund
v. San Juan County, 184 Wn.2d 428, 437, 359 P.3d 753 (2015) (quoting State v. Lilyblad, 163
Wn.2d 1, 9, 177 P.3d 686 (2008)). Additionally, we “read statutory provisions together and
construe the statute as a whole.” Hous. Auth. v. Knight, 4 Wn.3d 324, 332, 563 P.3d 1058
(2025).
Reading the text of RCW 71.09.090(2)(a) in context with the entirety of RCW 71.09.090,
the statutory language does not support Jazper’s reading of the statute. Instead, the plain
language of (2)(a) is unambiguous that petitioning under (2)(a) for a conditional release to an
LRA is available only when the committed person seeks to petition for a conditional release
without the secretary’s approval.
“We assume the legislature means exactly what it says.” Martin, 163 Wn.2d at 508. The
very statement Jazper relies on to assert that she had an independent right to petition separately
from subsection (1)(b) states that a committed person may not be prohibited from “otherwise
petitioning the court for conditional release to a less restrictive alternative . . . without the
secretary’s approval.” RCW 71.09.090(2)(a) (alterations added).
This statutory language shows that subsection (2)(a) is an alternative pathway for
petitioning for conditional release that is available only when the committed person is “without
the secretary’s approval.” The legislature’s use of the term “otherwise” as a limit to petitions
raised under the subsection signifies a distinct circumstance when the subsection is available and
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the phrase “without the secretary’s approval” clarifies when that different circumstance arises.
See WEBSTER’S THIRD NEW INT’L DICTIONARY 1598 (2002) (defining “otherwise” as “different”
or “under different circumstances”); BLACK’S LAW DICTIONARY 1325 (12th ed. 2024) (similarly
defining “otherwise” to mean “[i]n a different way” or “[i]n other conditions or circumstances”).
While Jazper contends that a committed person can always petition for conditional
release under subsection (2)(a) and “regardless of whether the [s]ecretary has authorized [a
petition],” such a reading is inconsistent with the statute’s explicit use of “otherwise” and
“without.” Reply Br. of Appellant at 2. Adopting Jazper’s reading of the subsection would
ignore the legislature’s use of “otherwise,” which indicates that petitioning under the subsection
is distinct from the only other avenue of petitioning discussed in RCW 71.09.090—petitioning
with the secretary’s approval under subsection (1)(b). If the legislature intended for petitions
under subsection (2)(a) to be unqualified and available regardless of whether the committed
person had the secretary’s approval, it did not need to include express terms distinguishing and
limiting this avenue for petitions. See e.g. RCW 10.77.595 (“Nothing contained in this chapter
shall prohibit the patient from petitioning the court for release or conditional release from the
institution in which he or she is committed.”).
The legislature used the limiting phrase “without the secretary’s approval” as opposed to
using a boundless term such as “regardless.” Ignoring the legislature’s cabining of petitions filed
under subsection (2)(a) to circumstances where it is filed “without the secretary’s approval,” as
opposed to “regardless” of the secretary’s approval, would render the legislature’s express terms
superfluous. In interpreting a statute, we must not “‘simply ignore’ express terms” and must aim
to not make any “‘clause, sentence, or word . . . superfluous, void, or insignificant.’” Ralph v.
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No. 59123-5-II
Dep’t of Nat. Res., 182 Wn.2d 242, 248, 343 P.3d 342 (2014) (quoting In re Parentage of
J.M.K., 151 Wn.2d 359, 367, 89 P.3d 217 (2004) and State ex. rel. Baisden v. Preston, 151 Wn.
175, 177, 275 P. 81 (1929)). Moreover, we must strictly construe chapter 71.09 RCW, and
reading subsection (2)(a) as creating a pathway for petitioning for conditional release when the
committed person is without the secretary’s approval is the more narrow, restrictive reading. See
Hawkins, 169 Wn.2d at 801.
Jazper relies on In re Detention of Brock, 183 Wn. App. 319, 333 P.3d 494 (2014), to
argue that a committed person may waive their right to file a petition under subsection (1)(b). In
Brock, Division One of this court considered whether a committed person may enter into an
agreement with the State to waive their right to petition for a trial for a designated period of time
on the issue of release. 183 Wn. App. at 325. The court held that subsection (1)’s requirement
that DSHS must “authorize” a person to petition did not mean that the filing of a petition is
mandatory nor up to DSHS, but instead the decision to file a petition is on the SVP.4 Brock, 183
Wn. App. at 326 (“the choice appears to lie with the SVP.”).
Brock contended that subsection (2)(a) contained a right to waive the right to petition, but
the court expressly disagreed that the waiver of a right to petition under subsection (2)(a) applied
to subsection (1). See Brock, 183 Wn. App. at 327 (“[S]ubsection [1] makes no mention of
notice of the right to file a petition or of waiver because the favorable annual review and the
mandatory authorization to file a petition is sufficient notice. And the question of whether to file
4
The statute at issue in Brock was a prior version of RCW 71.09.090; however, the language around DSHS authorizing the filing of a petition in subsection (1) and the waiver language contained in subsection (2)(a) is substantively the same to that in the current version of the statute. See Former RCW 71.09.090(1), (2)(a) (2018).
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No. 59123-5-II
a petition in light of a favorable annual review is not one of waiver, but one of choice that lies
with the committed person.”).
Importantly, the Brock court did not hold that a committed person may waive the right to
petition under subsection (1)(b) and, instead, pursue a petition under subsection (2)(a). Further,
it observed that subsection (2)(a) concerns petitions when DSHS does not grant approval through
the annual review process. Brock, 183 Wn. App. at 327 (“Subsection (2)(a) specifically
addresses notice of and waiver of the right to file a petition over DSHS’s objection. Notice of the
right to file a petition under this circumstance is necessary because otherwise a committed person
might reasonably believe that an unfavorable annual review precluded a petition for any type of
release even though it does not.”). Jazper’s reliance on Brock is misplaced.
Jazper’s contention that she could waive petitioning under subsection (1)(b) is not
supported by the plain language of RCW 71.09.090. Subsection (2)(a) provides that a committed
person may “affirmatively waive the right to petition,” but subsection (1)(b) provides no similar
language indicating that a committed person may waive their right to petition with the secretary’s
authorization and then seek a petition under subsection (2)(a). To be sure, nothing in subsection
(1)(b) requires a committed person to petition for conditional release. The mere fact that a
committed person has a choice to petition for a conditional release under (2)(a), does not mean
that they may select petitioning under either subsection (1)(b) or subsection (2)(a) when the
secretary has authorized the person to petition for conditional release. Rather, the plain language
of the statute shows that subsection (1)(b) allows for a committed person to file a petition for
conditional release when the secretary has authorized such a petition and subsection (2)(a) allows
for a committed person to file a petition for conditional release when there is no authorization to
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file such a petition from the secretary. Jazper’s reading of the statute is contrary to the plain
language of subsections (1)(b) and (2)(a).
Next, Jazper appears to assert that, because DSHS did not agree with Jazper’s preferred
placement, Jazper did not have “the secretary’s approval” and, thus, could petition for an LRA
based on her preferred placement under subsection (2)(a).5
For Jazper’s reading of the statute to be supported by the plain language of the statute, we
would have to ignore the legislature’s specific delineation of “petitions” versus “placements” in
the chapter. Jazper essentially argues that, because she sought a different placement than that
identified by DSHS, she had a right to waive petitioning with DSHS’s proposed placement and
instead pursue her own petition “without the secretary’s approval” by proposing her own
preferred LRA placement. However, under both subsection (1)(b) and (2)(a), the question of the
LRA placement is an issue that does not arise until after a petition is filed. See RCW
71.09.090(1)(b) (“Upon receipt of the petition, the court shall order the department to identify a
less restrictive alternative placement that satisfies RCW 71.09.092 (1) through (4).”) (emphasis
added), (2)(b-c) (questions of placement arising at or after a show cause hearing). This sequence
and distinction between a petition and a placement is consistent with reading subsection (2)(a) as
providing an avenue for petitioning for a conditional release when DSHS does not agree that any
conditional release is warranted, not an avenue for petitioning when a committed person wants to
seek a specific placement in an LRA.
5
See Wash. Ct. of Appeals oral argument, In re Det. of Abbe, No. 59123-5-II (Jan. 30, 2026), at 4 min., 23 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-2-court-of-appeals-2026011009/?eventID=2026011009.
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Here, the secretary’s designee authorized Jazper to petition for conditional release to an
LRA under RCW 71.09.090(1)(b). After Jazper submitted a petition and the trial court ordered
DSHS to propose a statutorily satisfactory LRA, DSHS identified an LRA placement at the
SCTF within 90 days of the court’s order. At that point, with an LRA placement before the
court, the trial court was mandated to set a conditional release trial. RCW 71.09.090(1)(b).
Pursuing a petition for conditional release under subsection (2)(a) was unavailable to Jazper
because her petition was not “without the secretary’s approval.” RCW 71.09.090(2)(a).
Considering RCW 71.09.090’s plain language, we hold that when the committed person
has the secretary designee’s authorization to petition for an LRA, the committed person’s
petition for conditional release proceeds under subsection (1)(b).6 Such was the case here; thus,
the trial court did not err in concluding that Jazper’s conditional release petition could only
proceed on DSHS’s proposed placement and under subsection (1)(b).7
6
In a Statement of Additional Authority, Jazper argues that a recently proposed but ultimately rejected bill would have restricted a committed person’s ability to propose their own LRA placement once granted authorization by the secretary to petition for conditional release. At 1-3 (citing to HB 1133 §§ 8-9). But, “when the Legislature rejects a proposed amendment [to a statute] . . . , we will not speculate as to the reason for the rejection.” Spokane County Health Dist. v. Brockett, 120 Wn.2d 140, 153, 839 P.2d 324 (1992); see also State v. Cronin, 130 Wn.2d 392, 400, 923 P.2d 694 (1996) (“[W]e are loathe to ascribe any meaning to the Legislature’s failure to pass a bill into law.”). Accordingly, the unpassed legislation reveals little about the legislature intent, and we decline to ascribe any meaning to it.
7
To the extent that Jazper argues that she had a constitutional right to petition based on her proposed LRA placement, her argument fails. See Reply Br. at 7. To support Jazper’s claim that she had a liberty interest in the “particular outcome” of trial on her proposed LRA placement, Jazper relies solely on In re Det. of Bergen, 146 Wn. App. 515, 195 P.3d 529 (2008). Br. of Appellant at 19; Reply Br. at 7. But Jazper misconstrues Bergen’s holding. Bergen held that, because RCW 71.09.090 dictated “a particular outcome based on particular facts” for a committed person petitioning for an LRA, the statutory provisions “create a [protected] liberty interest in a conditional release to an LRA.” Bergen, 146 Wn. App. at 527. As the court explained, “laws that dictate a particular outcome based on particular facts can create liberty
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II. SUMMARY JUDGMENT & CONDITIONAL RELEASE PROCEEDINGS
Jazper argues that the trial court erred in granting the State’s summary judgment motion.
Jazper asserts that CR 56 is inconsistent with conditional releases proceedings under chapter
71.09 RCW and, thus, was inapplicable. Additionally, Jazper claims that CR 56 did not
authorize the State’s requested remedy because the State moved for summary judgment in
Jazper’s favor. Alternatively, Jazper claims that the trial court should have continued the
summary judgment proceedings due to incomplete discovery. We address each in turn below.
A. Under These Circumstances, Summary Judgment Could Apply
The civil rules “govern the procedure in the superior court in all suits of a civil nature,”
except to the extent that CR 81 applies. CR 1. CR 81(a) provides that the civil rules govern all
civil proceedings “[e]xcept where inconsistent with rules or statutes applicable to special
proceedings.” Although chapter 71.09 RCW is civil in nature, proceedings under the chapter are
special proceedings within the meaning of CR 81. In re Det. of Cherry, 166 Wn. App. 70, 74,
271 P.3d 259 (2012). Accordingly, we must address whether CR 56, the civil rule governing
summary judgment procedures, is inconsistent with provisions for special proceedings under
chapter 71.09 RCW. See In re Det. of Williams, 147 Wn.2d 476, 55 P.3d 597 (2002).
Jazper argues that CR 56 could not apply below because chapter 71.09 RCW only
provides for one circumstance when the State can seek summary judgment in conditional release
interests, but laws granting a significant degree of discretion cannot.” Id. at 525. While Bergen held that a committed person has a liberty interest in conditional release to an LRA, Bergen did not hold that that interest guarantees a right to an evidentiary trial for Jazper’s proposed LRA when she has the secretary’s approval to petition. And Jazper cites to no other authorities supporting her argument. See DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962) (“[T]he court is not required to search out authorities, but may assume that counsel, after diligent search, has found none.”)
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No. 59123-5-II
proceedings and, below, the circumstances were different. Jazper asserts that the State’s motion
for summary judgment was inconsistent with RCW 71.09.094(1) because the State did not argue
that the plan violated RCW 71.09.092 and, thus, was precluded by CR 81.8 We disagree.
RCW 71.09.094(1) provides:
Upon the conclusion of the evidence in a hearing held pursuant to RCW 71.09.090
or through summary judgment proceedings prior to such a hearing, if the court finds
that there is no legally sufficient evidentiary basis for a reasonable jury to find that
the conditions set forth in RCW 71.09.092 have been met, the court shall grant a
motion by the state for a judgment as a matter of law on the issue of conditional
release to a less restrictive alternative.
Before this provision was amended in 2001, RCW 71.09.094(1) did not include the phrase “or
through summary judgment proceedings to such a hearing” but it did contain the language
regarding granting a motion for judgment as a matter of law. LAWS OF 2001, ch. 286, § 11.
Importantly, before the legislature added the summary judgment language, an opinion
from our court, In re Detention of Mathers, 100 Wn. App. 336, 341, 998 P.2d 336 (2000),
considered whether a summary judgment procedure was appropriate in RCW 71.09.090
proceedings and held that it was appropriate. In Mathers, a trial for conditional release to an
LRA was set under RCW 71.09.090(2). 100 Wn. App. at 337-38 & n. 2. But before trial,
neither the State nor Mathers’ expert recommended an LRA where Mathers would be housed in
the community instead of in continued confinement at the Special Commitment Center (SCC).
Id. at 338. However, Mathers’ expert had recommended for Mathers to receive treatment in the
8
Preliminarily, the State argues that Jazper cannot raise this argument because she failed to mention “CR 81, special proceedings, or a ‘conflict’” between the civil rules and chapter 71.09 RCW below. Br. of Resp’t at 51. But, as the State acknowledges, Jazper argued below that the State was not entitled to summary judgment beyond that provided in RCW 71.09.094. Br. of Resp’t at 51. Jazper’s arguments sufficiently preserved her argument for review.
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No. 59123-5-II
community while remaining confined at the SCC. Id. The State moved for summary judgment,
arguing that no genuine issue of material fact existed as to whether Mathers should be released to
an LRA from confinement, and the trial court granted the motion. Id.
On appeal, the State asserted that Mathers’ plan was not allowed under chapter 71.09
RCW.9 Mathers, 100 Wn. App. at 338. Our court agreed, reasoning that neither the plain
language of RCW 71.09.090(2) nor RCW 71.09.092 contemplated an LRA where the committed
person was confined at the SCC but conditionally released to the community solely for
treatment. Mathers, 100 Wn. App. at 338-39. Specifically related to RCW 71.09.092, our court
noted that, before entering an order allowing an LRA, the statute required a trial court to make
certain findings that clearly contemplated housing in the community, not at the SCC. Mathers,
100 Wn. App. at 339.
Mathers argued that summary judgment was inappropriate as applied to chapter 71.09
RCW proceedings. Mathers, 100 Wn. App. at 339. Considering CR 81(a), our court held that
the summary judgment procedure was appropriate “in an RCW 71.09.090 hearing.” Mathers,
100 Wn. App. at 341. In its reasoning, the court noted:
RCW 71.09.094 allows the trial court to test the legal sufficiency of the evidence
at the conclusion of a less restrictive alternative hearing. If “there is no legally
sufficient evidentiary basis,” the court “shall grant a motion by the state for a
judgment as a matter of law on the issue of conditional release to a less restrictive
alternative.” RCW 71.09.094(1). If the court can test the legal sufficiency of the
evidence and take the case from the jury after both sides have presented evidence,
it can surely test the sufficiency of the evidence before the hearing.
Id. at 340-41.
9
From the facts contained in the opinion, it is unclear if this was the same assertion the State made below while moving for summary judgment.
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No. 59123-5-II
Jazper contends that her reading of RCW 71.09.094(1) is not inconsistent with Mathers
given that Mathers preceded the amendment of the statute. She additionally argues that, by the
legislature’s inclusion of a specific summary judgment circumstance, it intentionally excluded all
other avenues for summary judgment for the State. In support, Jazper relies heavily on Williams
where the Supreme Court applied the expressio unius est exclusion alterious canon of
construction to infer that the legislature expressly provided for post-commitment evaluations of
an SVP, but not pretrial discovery evaluations. 147 Wn.2d at 491 (“Under expressio unius est
exclusio alterius, a canon of statutory construction, to express one thing in a statute implies the
exclusion of the other” and “[o]missions are deemed to be exclusions.”).
In response, the State acknowledges that RCW 71.09.094(1) mentions only one avenue
for summary judgment but asserts that the amendment, instead of intending to limit summary
judgment avenues from the State, intended to expand “the State’s authority to avoid useless
trials.” Am. Br. of Resp’t at 54. The State contends that, before the amendment, the State could
only request judgment as a matter of law following the presentation of evidence. See LAWS OF
2001, ch. 286, § 11.
We conclude that the State’s argument is more persuasive. The legislative amendment to
RCW 71.09.094(1), read in context with the timing and context of Mathers, more likely indicates
an intent to clarify the availability of summary judgment in conditional release proceedings when
“there is no legally sufficient evidentiary basis for a reasonable jury to find that the
[requirements of RCW 71.09.092] have been met.” The language does not indicate an intent to
exclude all other possible instances in which judgment as a matter of law may be appropriate and
available to parties.
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No. 59123-5-II
At a conditional release trial where the issue is whether the committed person should be
conditionally released to an LRA, the State has the burden to prove beyond a reasonable doubt
that any proposed LRA is either not in the best interest of the committed person or does not
include conditions to adequately protect the community. RCW 71.09.090(3)(d). As this court
stated in Cherry, “[t]he purpose of the hearing that follows a DSHS-authorized petition . . . is,
presumably, to protect the prosecuting agency’s ability to challenge that release.” 166 Wn. App.
70 at 76 (citing In re Det. of Ambers, 160 Wn.2d 543, 548-49, 158 P.3d 1144 (2007)); see also
RCW 71.09.090.
When the State concludes it cannot meet its burden at trial, allowing the State to move for
summary judgment prior to an evidentiary trial is consistent with the legislature’s expressed
“substantial” interest “in avoiding costly and unnecessary trials” as well as the State’s ethical
obligation to stipulate to judgment as a matter of law in the petitioner’s favor. See LAWS OF
2018, ch. 131, § 1(4) (“The legislature finds that the state’s interest in avoiding costly and
unnecessary trials is substantial.”); Rules of Professional Conduct 3.8(a) (a prosecutor shall
refrain from prosecuting a charge the prosecutor knows is not supported by probable cause).
Moreover, if the trial court here in Jazper’s matter denied the State’s motion and the case
proceeded to trial with the State’s expert witness’ anticipated testimony, it is unclear what other
result would have occurred other than what resulted here: concluding that Jazper should be
conditionally released to DSHS’s proposed LRA. Delaying that result until after trial and
forcing the State to nevertheless prosecute the case when it did not believe it could meet its
burden would create an absurd result. We generally construe statutes “to avoid absurd results.”
In re Det. of C.A.A., 31 Wn. App. 2d 816, 833, 553 P.3d 88 (2024). And, although the plain
21
No. 59123-5-II
language of RCW 71.09.094(1) only discusses a particular summary judgment circumstance,
appellate courts “may excuse ‘inept wording’ if it creates an absurd or obviously unintended
result.” Martin, 163 Wn.2d at 514 (quoting State v. Burke, 92 Wn.2d 474, 478, 598 P.2d 395
(1979)).
We hold that, under these circumstances, the summary judgment procedure was not
inconsistent with chapter 71.09 RCW conditional release proceedings and, thus, was appropriate.
B. The State Could Move for Summary Judgment Even Though the Sought After Remedy
Favored Jazper’s Petition for an LRA
Relying on the plain language of CR 56, Jazper argues that summary judgment did not
authorize the State’s sought after remedy because granting the motion in favor of conditional
release was not in the State’s favor. We disagree.
CR 56(b) provides that the “[d]efending [p]arty . . . may move . . . for a summary
judgment in such party’s favor.” Additionally, CR 56(c) states that summary judgment shall be
rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.”
Jazper asserts that the phrase “in such party’s favor” means that the State’s motion was
not a proper motion for summary judgment because it was not seeking a remedy in its favor or
arguing that the State was entitled to judgment as a matter of law. The State responds that this
construction is “too narrow and adversarial,” and it notes that the summary judgment ruling
furthered the State’s objectives by “advanc[ing] [Jazper’s] treatment needs, protect[ing] the
community, and avoid[ing] a useless trial.” Am. Br. of Resp’t at 45, 47. We conclude the
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No. 59123-5-II
State’s argument is more persuasive, especially considering that the civil rules themselves
instruct us to construe and administer the rules “to secure the just, speedy, and inexpensive
determination of every action.” CR 1. Accordingly, Jazper’s argument fails.
C. Jazper Fails to Show That the Trial Court Alternatively Should Have Granted a
Continuance
Jazper argues that, instead of granting the State’s summary judgment motion, the trial
court should have granted her a continuance so as to complete additional discovery. Br. of
Appellant at 27. We disagree.
Under CR 56(f), “should it appear from the affidavits of a party opposing the motion that,
for reasons stated, the party cannot present by affidavit facts essential to justify the party’s
opposition, the court may refuse the application for judgment or may order a continuance to
permit affidavits to be obtained or depositions to be taken or discovery to be had or may make
such other order as is just.” We review for an abuse of discretion a trial court’s decision to deny
a motion for a continuance under CR 56(f). Old City Hall LLC v. Pierce County AIDS Found.,
181 Wn. App. 1, 15, 329 P.3d 83 (2014). A trial court does not abuse its discretion in denying
such a motion if:
(1) the requesting party does not offer a good reason for the delay in obtaining the
desired evidence; (2) the requesting party does not state what evidence would be
established through the additional discovery; or (3) the desired evidence will not
raise a genuine issue of material fact.
Id. at 16 (quoting Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989)).
Here, Jazper’s counsel did not expressly request a continuance of the summary judgment
proceeding. Thus, the trial court could not have abused its discretion when it never was asked to
consider a continuance request. Even when Jazper’s counsel mentioned CR 56(f) at the
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No. 59123-5-II
summary judgment hearing, counsel did not expressly request a continuance, file a motion to
continue, or request something different than a denial of the State’s motion. See RP (Dec. 13,
2023) at 93. On these facts, we hold that Jazper fails to show that the trial court abused its
discretion.
CONCLUSION
We hold 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 a conditional release to an LRA. Additionally,
we hold that (1) CR 56 was applicable under these circumstances, (2) the State’s sought after
remedy did not render CR 56 inapplicable, and (3) Jazper fails to show that a continuance should
have been granted below. Accordingly, we affirm.
Che, J.
We concur:
Maxa, P.J.
Lee, J.
24