dissenting.
Appellant was originally involuntarily committed to a state mental hospital in 1983. Since then, she has been recommitted, under ORS 426.301 to ORS 426.307, to successive 180-day terms. Before each recommitment, she has allegedly waived her rights to counsel and to a court hearing to contest the recommitment. I disagree with the majority’s conclusion that the recommitment procedures contained in ORS 426.301 to ORS 426.307 do not violate appellant’s due process rights under the United States Constitution. Accordingly, I dissent.
The majority correctly recognizes that appellant has a substantial liberty interest in obtaining a release from further confinement. In the light of that liberty interest, the constitutionality, under the Due Process Clause, of the recommitment procedure in ORS 426.301, must be determined by the balancing of a number of factors. In Mathews v. Eldridge, 424 US 319, 335, 96 S Ct 893, 47 L Ed 2d 18 (1976), the United States Supreme Court identified those factors:
“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
The majority purports to balance each of the Mathews v. Eldridge factors. My disagreement with the majority centers on its conclusion that the “several procedural mechanisms [in ORS 426.301 to ORS 426.307] that protect against the risk of erroneous [recommitment],” 125 *381Or App at 376, are sufficient under the Due Process Clause. In my view, those so-called “procedural mechanisms” are, for the most part, illusory and do not withstand constitutional scrutiny.
The recommitment procedure in ORS 426.301 is very much like the initial involuntary commitment procedure that was found constitutionally deficient by the Ninth Circuit Court of Appeals in Doe v. Gallinot, 657 F2d 1017 (9th Cir 1981). Gallinot involved a due process challenge to a. procedure that allowed for the emergency detention of a person in a mental hospital for up to 72 hours. At the end of the 72-hour detention, the person could be certified by the staff for up to 14 additional days of treatment. The certification notice had to be delivered personally to the patient. At that time, the person delivering the notice was required to inform the patient of her right to counsel and the right to obtain judicial review of the certification through habeas corpus. Judicial review occurred only if the patient requested a writ of habeas corpus or otherwise indicated to the person delivering the certification that she desired to be released. That person then informed the court of the requested release and the court scheduled a hearing within two days of the writ being filed.
In concluding that placing the burden on the protected person to initiate judicial review was not a sufficient protection from erroneous commitment under the Due Process Clause, the court stated:
“No matter how elaborate and accurate the habeas corpus proceedings available under the LPS Act may be once undertaken, their protection is illusory when a large segment of the protected class cannot realistically be expected to set the proceedings into motion in the first place. It is the state, after all, which must ultimately justify depriving a person of a protected liberty interest by determining that good cause exists for the deprivation. Suzuki v. Yuen, 617 F.2d 173, 175-78 (9th Cir. 1980). Indeed, the irony of the appellants’ argument is that the more accurate the determinations of the statutory habeas corpus proceedings may be, the more irrational it is to afford those proceedings only to those in a position to request them.” 657 F2d at 1023. (Footnote omitted.)
The majority attempts to distinguish Gallinot on three grounds. First it points out that, unlike Gallinot, appellant *382has offered “no evidence that certification decisions under the recommitment scheme [in ORS 426.301 to ORS 426.307] are in any way error prone.” 125 Or App at 375. The majority is correct that, in Gallinot, evidence in the record “ ‘showed that a substantial number of detainees who sought habeas corpus review under the existing procedures were discharged at or before the hearing.’ ” 125 Or App at 375; 657 F2d at 1023. However, a close reading of Gallinot reveals that that evidence, while supporting the court’s legal analysis, was not an indispensable part of its ultimate conclusion. Instead, central to the court’s conclusion that the procedure violated the Due Process Clause was its determination that procedures for judicial intervention are “illusory when a large segment of the protected class cannot realistically be expected to set the proceedings into motion in the first place.” 657 F2d at 1023.
That conclusion was based on a plain reading of the statutes involved and an acknowledgement by the court of the adverse setting in which the protected person was expected to initiate judicial review. In that regard, the court noted that in the mental facility setting, the protected person may be incapable of invoking her “procedural rights” and initiating judicial review, because she maybe under heavy sedation; she may be inhibited by her surroundings, intimidated by or distrustful of the staff, or may feel obliged to cooperate with the staff who control nearly every aspect of her life; she may be unaccustomed to or afraid of courts and attorneys and, therefore, reluctant to protest review; she may be afraid of even a relatively innocuous requirement such as signing the form requesting relief. Doe v. Gallinot, supra, 657 at 1023 n 7.
It is beyond dispute that the same adverse setting exists here and can properly be considered by us in the facial challenge brought by appellant in this case. In summary, the majority’s concern that the record contains no empirical data about erroneous recommitments has very little impact on the legal analysis necessary to determine whether there is a significant risk of an erroneous recommitment under the procedure in ORS 426.301.
Second, the majority attempts to distinguish Gallinot on the ground that it involved an initial confinement procedure, not “an extension of an existing confinement,” or *383“[a] patient * * * ‘certified’ for recommitment [that] has already had an adversarial proceeding before a circuit court that had declared the patient mentally ill and in need of treatment.” 125 Or App at 375. That distinction might be meaningful if appellant’s last judicial hearing had occurred only 180 days earlier. Unfortunately, that is not the case here. Appellant’s last judicial hearing, in which a neutral factfinder made a determination about the necessity of appellant’s confinement, occurred more than 10 years ago. Since then, appellant has borne the heavy burden of initiating judicial review. Viewed in that light, it is difficult to conclude, as does the majority, that recommitment, under the procedures in ORS 426.201, does not involve the same risk of error present in an involuntary commitment proceeding that places the burden on the protected person to initiate a request for judicial review.
Finally, the majority attempts to distinguish Gallinot on the ground that the habeas corpus method used for seeking judicial review in that case “is difficult to understand,” while here, “the patient may obtain judicial review simply by voicing an objection to the certification or signing the protest form; she is not required to initiate a complex collateral proceeding to challenge the certification.” 125 Or App at 376. That distinction is meaningless. A plain reading of ORS 426.301 reveals that, although the protected person must be given a copy of the certification, which lists her right to counsel, a hearing, etc., and must be read to her, there is no requirement that anyone ascertain whether, at that moment, she is capable of understanding the rights listed in the certification. The Due Process Clause requires that meaningful notice be given and that the waiver of such fundamental rights as that of counsel and a judicial hearing must be done sentiently. See Armstrong v. Manza, 380 US 545, 552, 85 S Ct 1187, 14 L Ed 2d 62 (1965); Honor v. Yamuchi, 307 Ark 324, 329, 820 SW2d 267 (1991)(due process requires that person subject to involuntary commitment proceeding make intelligent waiver of right to counsel). In other words, the relative simplicity of voicing an objection or signing a protest form has little to do with the question of whether that procedure assures notice and a conscious and knowing waiver of the right to initiate judicial review of the recommitment decision. The simple truth here is that ORS 426.301 provides no *384assurance that the protected person has any understanding of her right to initiate judicial review at the moment she is advised of that right.
Given the adverse setting in which the protected person is advised of her right to initiate judicial review and the failure of ORS 426.301 to require anyone to determine and represent to the court that the protected person was capable of understanding her right to judicial review and consciously chose not to do so, I would hold that the risk of erroneous confinement is significant and that the procedure in ORS 426.301 to ORS 426.307 violates the Due Process Clause.
Having satisfied itself that there is no significant risk of erroneous confinement under the procedures in ORS 426.301, the majority also appears to conclude that the state’s interest in providing care to its citizens and protecting the community from “the dangerous proclivities of some who are mentally ill,” 125 Or App at 378, means that the work of mental health specialists in state mental facilities should be unburdened by the need to participate in formal court hearings “for every patient in connection with a certification [recommitment] decision.” 125 Or App at 379.
I am not unmindful of the soundness of the argument that mental health specialists are better used in the treatment of patients rather than in participating in court hearings. However, the majority’s concern in that regard is misplaced. ORS 426.301 already provides for judicial review. What is missing from the procedure in ORS 426.301 is the assurance that the protection of judicial review is not illusory. In my view, that problem can be satisfied by a procedure within the institution that requires a finding that, at the time the protected person was served with a copy of the certification and informed of her rights under ORS 426.301, she was capable of fully understanding those rights and consciously waived them. In the absence of that finding appearing in the protected person’s record, a judicial hearing should be mandatory.