¶1concurring:
¶2I concur with Mr. Justice Trapp that this case must be reversed and remanded to the trial court for further proceedings. My agreement with that disposition does not mean, however, that I am in agreement with the reasons he assigns. I reach the result that he reaches but for entirely different reasons relating to the procedures for termination of participation in the Dangerous Drug Abuse program.
¶3This case comes on appeal from a bench trial finding defendant guilty of burglary and unlawful use of weapons after his supervision under the Dangerous Drug Abuse Act was revoked. (Ill. Rev. Stat. 1973, ch. 91½, par. 120.9.) Defendant was sentenced to 4 to 12 years for burglary and 1 to 3 years for unlawful use of weapons.
¶4On August 18, 1975, defendant was placed in a program under the Dangerous Drug Abuse Act for two years. On November 19, 1975, the State filed a petition to revoke defendant’s participation in the program. At the hearing on the petition, the State’s Attorney informed the court that it was proceeding under section 9 of the Dangerous Drug Abuse Act which reads:
“If, before the supervisory period expires, the Department determines that the individual cannot be further treated as a medical problem, it shall so advise the court. The court shall thereupon terminate the supervision, and the pending criminal proceedings may be resumed.” (Emphasis added.) Ill. Rev. Stat. 1973, ch. 91½, par. 120.9.
¶5The trial court revoked defendant’s participation in the program based on the testimony of Arthur Kimbrough, the director of the Stonehedge Foundation. Kimbrough testified to certain details concerning defendant’s failure to follow the rules of the Foundation. I do not find, and the record does not show, that Kimbrough was authorized to determine that defendant could not be further treated as a medical problem, nor does the record show that the Department ever made such a determination. Kimbrough was not employed by the Department of Mental Health; however, Stonehedge apparently was approved by the Department as a place for treatment.
¶6On appeal, defendant argues that the termination procedure adopted by the trial court violated his due process rights of notice and an opportunity to be heard. I do not find that the defendant expressly or impliedly asserts that he is entitled to the “full panoply” of constitutional rights.
¶7Defendant asserts that he was given inadequate notice, that the charges against him were impermissibly vague, that he was wrongfully denied discovery, and that he was not given an opportunity to prepare defense. The petition to revoke summarily and by way of conclusions states that the defendant failed to observe the requirements of the Department of Mental Health. The hearing was held one week after the petition was filed. The defendant moved for a continuance and argued that he be supplied more information as to the basis of the charges. The trial court denied the continuance and did not require the State to produce the information. Apparently, defendant was allowed approximately 30 minutes just before the hearing to interview the State’s lone witness, Kimbrough. The State rested its case and the defendant was allowed to present his case three weeks later. At the conclusion of the hearing, defendant’s supervision was revoked and he was later found guilty of burglary and unlawful use of weapons.
¶8In the initial step of analyzing a due process question, it must be determined whether the litigant has a liberty or property interest. (Wisconsin v. Constantineau (1971), 400 U.S. 433, 27 L. Ed. 2d 515, 91 S. Ct. 507; Board of Regents v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701.) If there is no such interest, procedural due process does not apply. Whether any procedural protections are due depends on the extent to which an individual will be “condemned to suffer grievous loss.” (Joint Anti-Fascist Refugee Committee v. McGrath (1951), 341 U.S. 123, 95 L. Ed. 817, 71 S. Ct. 624 (Frankfurter, J., concurring).) Due process also requires a determination of the precise nature of the individual interest involved, as balanced against the governmental interest. Roth; Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208.
¶9In People v. Phillips (1977), 66 Ill. 2d 412, 362 N.E.2d 1037, the court held that a probation officer’s consent is necessary for a defendant on probation to be admitted to a drug supervision program. Phillips applies only to one who has been convicted. I note that a defendant’s participation in a drug treatment program is discretionary, but that fact alone does not bear on the revocation procedure. See generally Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439 (1968).
¶10Traditional due process safeguards are required by the fourteenth amendment before revocation of parole or probation. (Morrissey v. Brewer (1972), 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593; Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756.) Illinois incorporated these constitutional requirements into the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, pars. 1005—6—4, 1003—3—9).
¶11Under the present structure of chapter 91M, if one is convicted, section 10 provides for treatment as a condition of probation. (Ill. Rev. Stat. 1975, ch. 91½, par. 120.10.) Any failure to adhere to the treatment program is a breach of probation and any failure to observe any requirement set down by the Department shall be considered a probation violation. Section 11 similarly provides for treatment as a condition of parole.
¶12Section 9 (Ill. Rev. Stat. 1975, ch. 91½, par. 120.9) does not provide for a revocation hearing from the program when one is admitted before conviction. Therefore, Illinois law presents the anomalous situation of providing a hearing to revoke supervision for one who is convicted and placed on probation or parole, whereas one who is not on probation or parole, indeed not even convicted, and is placed in the program by the court is not expressly subject to statutory revocation procedures.
¶13I view defendant’s interest in the program to the same extent as those placed on parole or probation. (Morrissey; Gagnon.) On this point, the State argues that defendant has no liberty interest involved because unlike parole or probation revocation, defendant’s removal from the drug treatment program would not necessarily result in a prison sentence, since defendant had not yet been convicted. Yet, revocation does subject defendant to the criminal justice system again. Ill. Rev. Stat. 1975, ch. 91½, par. 120.9.
¶14The State concludes that the “remote chance” of defendant’s loss of liberty is the only possible basis for due process to apply to revocation proceedings. However, an individual has a legitimate claim to due process protection because of an interest created by state statute. (See Goss v. Lopez (1975), 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct. 729; Goldberg v. Kelly (1970), 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011; Connell v. Higginbotham (1971), 403 U.S. 207, 29 L. Ed. 2d 418, 91 S. Ct. 1772.) Defendant has a vital interest in continued participation in the program, not only for the betterment of his own health, but also because the court will dismiss the pending criminal charges against him if 4ie successfully completes the program. (Ill. Rev. Stat. 1975, ch. 91½, par. 120.9.) Therefore, defendant is entitled to uninterrupted treatment if he is, in fact, eligible. See Goldberg; but see Mathews v. Eldridge (1976), 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893.
¶15Also, weighing in my consideration is the fact that, as presently written, section 9 permits the arbitrary and capricious act of certifying the accused as no longer treatable as a medical problem without giving him a chance to be heard. Such is not even minimal due process.
¶16These factors must be balanced against the State’s interest of eliminating uncooperative persons from the program where they may hamper the efforts to rehabilitate others.
¶17I conclude that once an accused is admitted to a drug rehabilitation program under section 9, the burden on the State to conduct a hearing is slight, and the potential loss to the accused is enormous, so that the accused’s interest in continued participation in the program is within the protection of the fourteenth amendment. A similar interpretation has been given to 28 U.S.C.A. §2902(c) (1977 Supp.). (United States v. Taylor (D. N.Y. 1969), 305 F. Supp. 1150; United States v. Thornton (D. Del. 1972), 344 F. Supp. 249.) The remaining question is the extent of the procedural safeguards required by the concept of due process.
¶18Of course, due process is a flexible concept evolving over time. (E.g., Wolff v. McDonnell (1974), 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963.) One of the fundamental requisites of due process is timely notice with an opportunity to prepare (Boddie v. Connecticut (1971), 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780), and an opportunity to be heard (Grannis v. Ordean (1914), 234 U.S. 385, 58 L. Ed. 1363, 34 S. Ct. 779). The hearing must be “at a meaningful time in a meaningful manner.” Armstrong v. Manzo (1965), 380 U.S. 545, 14 L. Ed. 2d 62, 85 S. Ct. 1187.
¶19I would hold that a revocation hearing must be held for one under treatment under section 9. The hearing need not be conducted in the formal matter of a criminal trial, but it should accord the accused at least the following rights: (1) Written notice of the alleged violation; (2) an opportunity to be heard and present witnesses; (3) disclosure to the accused of the evidence against him; and (4) the right to confront and cross-examine adverse witnesses. (See Morrissey; Gagnon.) The reference is to minimal due process, not “full panoply.” The process should be flexible enough to admit evidence including letters, affidavits, and other material that might not be admissible in a trial. The State has the burden of proving that the defendant cannot be further treated as a medical problem as determined by the Department.
¶20Until these basic rights are fulfilled, defendant’s termination is a nullity.
¶21Mr. PRESIDING JUSTICE MILLS, dissenting:
¶22A paradox.
¶23Mr. Justice Trapp writes the opinion.