¶25 (dissenting) — Due process requires that, at a minimum, anyone deprived of a liberty interest must be provided with notice and an opportunity to be heard. Soundgarden v. Eikenberry, 123 Wn.2d 750, 768, 871 P.2d 1050 (1994). The majority correctly finds that due process rights attach to the revocation of Jayson Bush’s commutation but then holds that failure to provide process *708was not prejudicial. Majority at 700. I cannot agree. Bush was not deprived of some process. Bush received no meaningful process at all. Separation of powers demands that the governor be given great discretion on how to provide meaningful notice and an opportunity to be heard. However, I would hold that a complete failure to provide the petitioner with even a bare minimum of constitutionally required procedural due process is per se prejudicial. Under these circumstances, the petitioner should be relieved of his general burden to make a prima facie showing of prejudice.
¶26 The majority rests its holding on In re Personal Restraint of Reismiller, 101 Wn.2d 291, 297, 678 P.2d 323 (1984) (quoting In re Pers. Restraint of Hagler, 97 Wn.2d 818, 825-26, 650 P.2d 1103 (1982)), where we said that on collateral review a petitioner is required to show that an error of constitutional magnitude is prejudicial. This shifts the burden from the State, who on direct appeal is required to “establish beyond a reasonable doubt that any error of constitutional dimensions is harmless.” Hagler, 97 Wn.2d at 825 (citing Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). However, where a petitioner has not had a prior opportunity for judicial review, we do not apply the heightened threshold requirements generally necessary on collateral review. In re Pers. Restraint oflsadore, 151 Wn.2d 294, 299, 88 P.3d 390 (2004). In those instances, the petitioner need show only that he is unlawfully restrained under RAP 16.4. Id. This personal restraint petition is Bush’s only opportunity to have a court review the governor’s decision to revoke his commutation, and a heightened standard is not appropriate.
¶27 Even if Bush had had a prior opportunity for judicial review, he still should not have been required to meet the heightened collateral review standard. Similar to our harmless error analysis, requiring a petitioner to make a prima facie showing of prejudice allows a reviewing court to uphold a decision despite the occurrence of a constitutional error during the process. It is applied based on practical considerations, ensuring that not every case in which small *709errors occur must be retried. See Dennis J. Sweeney, An Analysis of Harmless Error in Washington: A Principled Process, 31 Gonz. L. Rev. 277, 278 (1995). But even within the confines of harmless error analysis, the focus should be on the fairness of whatever process was received. Id. at 281. When the error at issue has deprived the petitioner of what we have declared is a minimum level of process, it cannot be said that despite that error the process was fair. In this case, instead of reviewing the facts and determining what the governor could have fairly found in the course of a hearing, the majority has determined what the governor would have found in the event a hearing had been held at all.
¶28 While we have rejected the contention that all errors deemed per se prejudicial on direct review are equally so on collateral review, we still recognize that some constitutional violations will always be prejudicial. In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 328-29, 823 P.2d 492 (1992) (declining to adopt a rule expressed in dicta that would have made the per se prejudicial standard the same for direct and collateral review (citing In re Pers. Restraint of Boone, 103 Wn.2d 224, 233, 691 P.2d 964 (1984))). We require a hearing before the deprivation of a liberty interest to assure that revocation is based on verified facts and informed by accurate knowledge of the petitioner’s behavior. See Morrissey v. Brewer, 408 U.S. 471, 484, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). In this case, the required hearing acts as a check on the unfettered discretion of the current governor in revoking a commutation that was granted by a previous governor. In my view, the right to a predeprivation hearing is so fundamental that the failure to provide one falls easily within those constitutional rights we recognized in St. Pierre. Failure to provide a hearing when one is required is always prejudicial.
¶29 I would hold that the governor must hold a hearing before revoking Bush’s commutation. I would further hold that when a predeprivation hearing is constitutionally required, failure to provide that hearing is per se prejudi*710cial. Bush’s case should be remanded to the governor so that she may make her decision on revocation based on facts presented during the course of a fair hearing.
¶30 I dissent.
Sanders, J., concurs with Chambers, J.