Appeal from the Circuit Court of Cook County; the Hon. R.
Eugene Pincham, Judge, presiding.
JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Contempt proceedings were brought against Dr. Paul Schyve, Acting Director of the Illinois State Psychiatric Institute (ISPI), and ISPI for allowing Gary McConnell to escape from ISPI. McConnell had been involuntarily committed to the Illinois Department of Mental Health and Developmental Disabilities (DMHDD), after being found not guilty by reason of insanity (hereinafter NGRI). While the contempt hearing was going forward, the State subpoened Dr. Ivan Pavkovic, Director of the DMHDD, to testify regarding the contempt charge and also to testify regarding the escape of another NGRI. Dr. Pavkovic testified on June 24, 1982. On the same day, the trial court, in response to a petition by the State, issued the following order. The court found:
"That the Illinois Department of Mental Health has recklessly allowed numerous NGRI residents to escape from its custody over the past several months.
That the Illinois Department of Mental Health has violated the constitutional rights of numerous NGRI residents to adequate and humane care and treatment.
That the Illinois Department of Mental Health by and through its Director, Ivan Pavkovic has failed to comply with Illinois Revised Statute, 1981, ch. 38 Sec. 1005-2-4.
1. That the Director of the Illinois Department of Mental Health immediately identify those NGRI residents who are dangerous to others.
2. That the Director of the Illinois Department of Mental Health immediately separate such persons from the general population and place them in a secure area.
3. That the Illinois Department of Mental Health give ten days written notice to the Court from which an NGRI resident is committed and to the State's Attorney of Cook County in which the Court is located whenever it plans to transfer an NGRI resident to a less secure area. The notice shall include not only the fact that the resident is being transferred but also that he or she will be in a less secure area and the reasons for the intended action and the facts upon which those reasons are based."
The court characterized the above order as a temporary restraining order and issued it while the contempt proceedings were still pending.
On July 8, 1982, Dr. Schyve and several NGRI intervenors (the defendants) moved to vacate the order on the grounds that the court lacked the jurisdiction and authority to take such actions; that the TRO which the court issued did not meet the statutory requirements for such relief; and that the court's actions were an unconstitutional encroachment upon executive authority. Without discussion, the court denied the defendants' motion to vacate.
On appeal, the defendants challenge the court's jurisdiction to issue such a comprehensive order which allegedly involves an unconstitutional encroachment upon executive authority. The State defends the court's jurisdiction to issue such an order claiming that the court has general supervisory power over the defendants pursuant to statute, that the court has equity jurisdiction to issue such a comprehensive order and that the order is in fact a writ of mandamus.
• 1 The State's first defense of the court's jurisdiction to issue the order in the instant action rests upon its contention that the trial court has the authority to issue such an order pursuant to its general supervisory powers over "Proceedings after acquittal by reason of insanity." (Ill. Rev. Stat. 1981, ch. 38, par. 1005-2-4.) Under this section, the court is given the following supervisory powers relating to NGRI's and the DMHDD. The court can order the involuntary admission of NGRI's to the DMHDD; the court can require the Director of the DMHDD to create a treatment plan for each NGRI and file it with the court. The court can direct the DMHDD not to permit a NGRI to be at large in the community unless in accordance with the treatment plan; the court can order the DMHDD to discharge a NGRI. However, this statute does not empower the court with general supervisory powers over the DMHDD as the State claims. Neither does the statute specifically empower the court to require the DMHDD to identify those NGRI residents who are dangerous to others; to separate such persons from the general population and place them in a secure area; or to give 10 days written notice plus a reason to the court and to the State's Attorney whenever a NGRI is transferred to a less secure area. Therefore, we believe that the court overstepped its supervisory powers under this statute in issuing this comprehensive order. See also People v. Valdez (1980), 79 Ill.2d 74, 402 N.E.2d 187.
• 2 The State next contends that the court had jurisdiction to issue this order by virtue of the court's equity jurisdiction. We have addressed ourselves specifically to the limits of a court's equity jurisdiction in People v. Roush (1982), 111 Ill. App.3d 618. Roush is a case which we find to be indistinguishable from the instant cause. There the trial court issued an order mandating specific procedures to be followed in regard to NGRI's by the Director of the Manteno Health Center and Manteno. We held in Roush that the trial court had equity jurisdiction to enter the order but that it ought not to have exercised that jurisdiction. In Roush, we concluded that equity jurisdiction should only be assumed over the discretionary acts of public officials in the presence of fraud, corruption, oppression, gross injustice or gross abuse of power. Furthermore, quoting from Roush, "an institution which would allow NGRI's to escape and is alleged to be poorly administered does not equate with the kind of fraud, corruption, oppression, gross injustice or gross abuse of power which is necessary for equity jurisdiction." (111 Ill. App.3d 618, 622.) In Roush, no such factors were alleged. Therefore, we held that there was no reason for the court to exercise its equitable powers. Similarly in the instant case, no such factors were alleged. Therefore, we hold there was no reason for the court to issue ...