¶46 (dissenting) — Today the majority eviscerates a fundamental guaranty of liberty by denying Roy Stout, Jr., his constitutional right to confront witnesses against him. I dissent because any person threatened with involuntary and indefinite commitment deserves at least minimum due process, and the United States Supreme Court as well as the precedent of this court hold the right to confrontation is an essential part of that process which is due under our state and federal constitutions.
Sanders, J.*387¶47 Although the majority derides the right of confrontation as “ ‘for the idle purpose of gazing upon the witness,’ ” the Founders viewed it as indispensable when this nation was founded. Majority at 368 n.9.20 Indeed, the right to confront adverse witnesses is “[o]ne of the fundamental guarantees of life and liberty” and “a right long deemed so essential for the due protection of life and liberty that it is guarded against legislative and judicial action by provisions in the Constitution of the United States .. . .” Kirby v. United States, 174 U.S. 47, 55, 56, 19 S. Ct. 574, 43 L. Ed. 890 (1899). But apparently this right is not as well-protected by our majority as the founders and the United States Supreme Court hoped.
¶48 To prove Stout was a sexually violent predator (SVP), the State introduced two depositions; however, Stout was present at the taking of neither. But now Stout will be immured indefinitely, see RCW 71.09.060(1), absent any ability to confront the witness against him. The majority undercuts the right of confrontation in two respects. First, it denies the right to confrontation because SVP proceedings are “civil.”21 And second, because, says the majority, an individual right to confront witnesses against him may be “balanced” away under Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
*388I. The United States Supreme Court recognizes a fundamental due process right to confrontation
¶49 The United States Supreme Court has held due process guarantees every person threatened with involuntary incarceration the right to confront witnesses against them, whether the proceeding is civil or criminal. Specht v. Patterson, 386 U.S. 605, 607-08, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967). Francis Specht argued Colorado’s Sex Offenders Act was unconstitutional because he could be sentenced “for an indeterminate term of from one day to life . . . without a hearing at which [he could] confront and cross-examine adverse witnesses.” Id. The Supreme Court unanimously agreed:
These commitment proceedings whether denominated civil or criminal are subject both to the Equal Protection Clause of the Fourteenth Amendment. . . and to the Due Process Clause. We hold that the requirements of due process were not satisfied here.
Id. at 608 (emphasis added). The majority tries to distinguish Specht, suggesting the Colorado statute was “criminal in purpose.” Majority at 372 n.12 (emphasis omitted).22 However, the Court’s holding unquestionably says any involuntary commitment proceeding, civil or criminal, is subject to due process. The Court enunciated those minimal due process protections that must always be provided:
Due process, in other words, requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own.
Specht, 386 U.S. at 610 (emphasis added).23
*389II. Washington precedent also recognizes a fundamental due process right to confrontation
¶50 Not content with ignoring the Supreme Court of the United States, the majority also ignores its own precedent. Before today, any involuntary commitment, whether civil or criminal, required fundamental due process protections. We have held:
“It is the likelihood of involuntary incarceration — whether for punishment as an adult for a crime, rehabilitation as a juvenile for delinquency, or treatment and training as a feebleminded or mental incompetent — which commands observance of the constitutional safeguards of due process.”
Quesnell v. State, 83 Wn.2d 224, 230, 517 P.2d 568 (1973) (relying on Specht) (quoting Heryford v. Parker, 396 F.2d 393, 396 (10th Cir. 1968). And these “constitutional safeguards of due process” include the right of confrontation. Quesnell, 83 Wn.2d at 230, 240 n.21 (“Such fundamental rights pertinent to the mental illness proceeding include confrontation and cross-examination.”).24
¶51 Quesnell concerned involuntary civil commitment for the mentally ill. But Stout’s involuntary confinement may be accomplished only with that process which is due, regardless of motive.25
*390III. Confrontation is a fundamental right
¶52 The majority misunderstands confrontation as a mere procedural protection to guard against error. But when a person is threatened with involuntary confinement, he is entitled to the fundamental right of confrontation. See Specht, 386 U.S. 605 (fundamental language). Justice Harlan joined the Specht majority for the reasons he enunciated previously in Pointer:
For me this state judgment must be reversed because a right of confrontation is “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325, [58 S. Ct. 149, 82 L. Ed. 288 (1937),] reflected in the Due Process Clause of the Fourteenth Amendment independently of the Sixth.
Pointer v. Texas, 380 U.S. 400, 408, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965) (Harlan, J., concurring).
¶53 The majority mistakes the substantive for procedural when it misapplies Mathews balancing. Mathews dealt with administrative procedures, not fundamental rights. Mathews v. Eldridge, 424 U.S. at 332 (“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests . . . .”).26 In a sense, allowing a potential SVP to confront witnesses against him is a procedure, but one expressly mandated by the Sixth Amendment and Washington Constitution article I, section 22. The majority would not balance away one’s right to counsel by inquiring about an “erroneous deprivation of that interest through existing *391procedures,” see majority at 370, so why balance away the right to confront your accuser?
¶54 Because it claims the SVP proceeding is already fair, the majority argues Stout does not need his constitutional right of confrontation. Majority at 371. These basic rights, however, are expressly guaranteed, and this violation cannot be dismissed whenever it is adjudged “fair” to do so. “It is true enough that the purpose of the rights set forth in [the Sixth] Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair.” United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557, 2562, 165 L. Ed. 2d 409 (2006). Due process “commands, not that a trial be fair, but that a particular guarantee of fairness be provided.” Id. Specht unequivocally holds the right of confrontation is one particular guaranty of fairness that must be provided.
¶55 The majority ignores Specht because it is pre-Mathews. Majority at 372 n.12. But the United States Supreme Court continues to cite Specht to hold confrontation is a minimal safeguard for any commitment proceeding.27 See Vitek v. Jones, 445 U.S. 480, 491-94, 100 S. Ct. *3921254, 63 L. Ed. 2d 552 (1980).28 The majority claims Vitek relied on Specht only to find “ ‘involuntary commitment to a mental hospital is not within the range of conditions of confinement to which a prison sentence subjects an individual.’ ” Majority at 373 n.13 (quoting Vitek, 445 U.S. at 493). But the question before the Vitek Court was “whether after a conviction for robbery, Jones retained a residuum of liberty that would be infringed by a transfer to a mental hospital without complying with minimum requirements of due process.” Vitek, 445 U.S. at 491. The Court held “the transfer of a prisoner from a prison to a mental hospital must be accompanied by appropriate procedural protections.” Id. And the Court affirmed the lower court holding, which included as one of these appropriate procedural protections, “ ‘[a]n opportunity at the hearing to present testimony of witnesses by the defense and to confront and cross-examine witnesses called by the state, except upon a finding, not arbitrarily made, of good cause for not permitting such presentation, confrontation, or cross-examination. . . .’” Id. at 494-95 (quoting Miller v. Vitek, 437 F. Supp. 569, 575 (D. Neb. 1977)).
f 56 The United States Supreme Court recognizes Specht speaks to fundamental rights, while Mathews applies to nonfundamental procedures. In Parham, another post-Mathews case, both the majority and the dissent cited to Specht for support. Parham v. J.R., 442 U.S. 584, 600, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979). In his dissent, Justice Brennan explicated Specht’’s specific holding:
[O]ur cases have made clear that commitment to a mental hospital “is a deprivation of liberty which the State cannot *393accomplish without due process of law.” O’Connor v. Donaldson, 422 U.S. 563, 580[, 95 S. Ct. 1804, 60 L. Ed. 2d 323] (1975) (Burger, C. J., concurring). . . . Specht v. Patterson, 386 U.S. 605[, 608, 87 S. Ct. 1209, 18 L. Ed. 2d 326] (1967) (sex offender commitment following criminal conviction). ... At such hearings they must be accorded the right to “be present with counsel, have an opportunity to be heard, be confronted with witnesses against [them], have the right to cross-examine, and to offer evidence of [their] own.” Specht v. Patterson, supra, at 610.
Parham, 442 U.S. at 627 (fourth and fifth alterations in original) (citations omitted) (Brennan, J., dissenting).
¶57 The First Circuit has also relied on Speeht, even post-Mathews, to hold an inmate must be present at a hearing for involuntary commitment. United States v. Frierson, 208 F.3d 282, 287-88 (1st Cir. 2000). Due process requires “ ‘[the person] be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own.’ ” Id. at 287 (alteration in original) (quoting Specht, 386 U.S. at 610). The Fourth Circuit has held a commitment hearing could be via videoconference because it did not “preclude the respondent from confronting . . . the witnesses.” United States v. Baker, 45 F.3d 837, 843 (4th Cir. 1995). The Fourth Circuit relied on Vitek and found “the right to confront” to be a minimum due process safeguard. Id. (“Vitek makes clear that due process entitles the respondent at a commitment hearing to some right to confront and cross-examine the witnesses against him . . . .”). Only when it discussed additional procedures, beyond the minimum requirements, did the Court employ Mathews. Id. at 844.
¶58 Stout may be imprisoned for life, but today the majority denies him his basic due process right to defend himself by confronting witnesses against him. Both the United States Supreme Court and the Washington State Supreme Court recognize fundamental due process protections for any involuntary commitment proceeding, whether *394civil or criminal. The right to confront adverse witnesses is a fundamental protection that must be enforced.
¶59 And I dissent.
Reconsideration denied March 14, 2007.
The majority quotes this language from Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). In Crawford, the Supreme Court gives a lengthy historical treatment of this indispensable right. Crawford v. Washington, 541 U.S. 36, 43, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); see also Pointer v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965) (“There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.”).
Both this court and the United States Supreme Court have dubbed SVP procedures as “civil.” Seling v. Young, 531 U.S. 250, 261, 121 S. Ct. 727, 148 L. Ed. 2d 734 (2001). The United States Supreme Court in Seling relied upon this court’s determination the procedure was civil and upon its determination that a similar Kansas civil statute still comported with substantive due process. Id. Confrontation was not before the Court in either case.
In the same footnote, the majority tries to distinguish Specht because it was pre-Mathews. That argument will he discussed, infra, part III.
The Court quoted from a Third Circuit case with approval:
“A defendant in such a proceeding is entitled to the full panoply of the relevant protections which due process guarantees in state criminal proceedings. He must be afforded all those safeguards which are fundamental rights and *389essential to a fair trial, including the right to confront and cross-examine the witnesses against him.”
Specht, 386 U.S. at 609-10 (quoting United States ex rel. Gerchman v. Maroney, 355 F.2d 302, 312 (3d Cir. 1966)).
The majority claims we should simply ignore this language because it appears in a footnote. Majority at 372 n.12. But no matter where it decided to say it, the Quesnell court clearly said confrontation is a fundamental due process right. Additionally, the majority claims Quesnell is immaterial because it cites Pointer v. Texas, a case that concerned a criminal trial. Id. (citing Pointer, 380 U.S. 400). But this is inconsequential because Quesnell itself dealt with civil commitment proceedings. Also, Quesnell relied on Specht as well as Pointer, where, as discussed above, the United States Supreme Court said both criminal and civil commitment proceedings are subject to the Due Process Clause. Specht, 386 U.S. at 608.
The court in Quesnell found:
“Measures which subject individuals to the substantial and involuntary deprivation of their liberty contain an inescapable punitive element, and this reality is not altered by the facts that the motivations that prompt incarceration are to provide therapy or otherwise contribute to the person’s well-being or reform.”
*390Quesnell, 83 Wn.2d at 231 n.6 (quoting Francis A. Allen, The Borderland op Criminal Justice 37 (1964)); see In re Det. of Brock, 126 Wn. App. 957, 963, 110 P.3d 791 (2005).
The majority repeatedly asserts due process is a flexible concept. This is true when administrative procedures are scrutinized:
[D]ue process is flexible and calls for such procedural protections as the particular situation demands. Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected.
Mathews, 424 U.S. at 334 (emphasis added) (citation and internal quotation marks omitted). A fundamental right is not as flexible.
In Addington, the Court reemphasized its holding in Specht: “This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). In Donaldson, the Court said: “There can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law.” O’Connor v. Donaldson, 422 U.S. 563, 580, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975) (Burger, C.J., concurring) (citing Specht, 386 U.S. at 608). Both cases are post -Mathews. Quesnell is also good law and has been cited, post -Mathews:
[Q]uite apart from any statutory requirement, it is a fundamental precept of our system that a deprivation of liberty can occur only after affording due process. The commitment of a criminally insane person is a deprivation of liberty and subject to this constitutional guaranty of due process.
State v. Wilcox, 92 Wn.2d 610, 612, 600 P.2d 561 (1979) (citing Quesnell, 83 Wn.2d at 229-30). The majority ignores these cases because they do not specifically deal with confrontation. But this misses the point. These cases show Specht is still good law, even post -Mathews. And Specht itself holds confrontation is one of several fundamental due process right owed to any defendant in a civil commitment proceeding. Specht, 386 U.S. at 610.
The Fourth Circuit summarized Vitek’s holding, finding the Supreme Court identified the following as minimum safeguards to which due process entitles a defendant in a commitment proceeding: “a hearing at which evidence is presented and the [patient] is provided a chance to be heard and to present documentary evidence as well as witnesses; the right to confront and to cross-examine government witnesses at the hearing, except upon a showing of good cause; an independent decisionmaker; a written, reasoned decision; the availability of an independent advisor, not necessarily an attorney; and effective and timely notice of the pendency of the hearing and of all these rights.” United States v. Baker, 45 F.3d 837, 843 (4th Cir. 1995) (footnote omitted) (citing Vitek, 445 U.S. at 494-96).