author: JUSTICE MURRAY

text:
    WALTER W. DUDYCZ, Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—89—0318
    Opinion filed November 16, 1990.

      Asher, Gittler, Greenfield, Cohen & D’Alba, Ltd., of Chicago (Joel A. D’Alba and Anne Wells Clark, of counsel), for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

Walter Dudycz (plaintiff) appeals the dismissal of his third-amended complaint against the City of Chicago and a number of its officials. We affirm.

Plaintiff, a Chicago police officer, was elected to the Illinois State Senate in November 1984. After his election he maintained his position with the Chicago police department until February 1985, at which time he requested a leave of absence from active duty. He made the request allegedly because he was ordered to do so by his commanding officer since police department policy did not allow him to continue on active duty while serving as a State senator. After complying with this rule, plaintiff allegedly became aware of other employees of the City of Chicago who had been elected to the General Assembly, but who were allowed to maintain their city employment while serving their elected office. Plaintiff then asked to be reinstated to active duty with the police department but was advised by then Superintendent Fred Rice that he would not be allowed to return to active duty until he was no longer serving as a State senator.

On January 27, 1986, plaintiff submitted his resignation to the Chicago police department so that he could take advantage of certain newly enacted legislation which allowed him to transfer his municipal pension credits into the General Assembly Retirement System. Then, on May 22, 1986, plaintiff filed a complaint for injunctive and declaratory relief against the City of Chicago, Mayor Harold Washington, Superintendent Fred Rice, and legislative assistants Gappy Laing and Thomas Coffey, charging that he had been forced to leave his position with the Chicago police department because of his political activity, in violation of Public Act 84 — 1018 and the Illinois Constitution. Plaintiff amended his complaint on November 12, 1986, and again on May 1, 1987, adding additional claims. The city and other defendants moved to dismiss plaintiffs third-amended complaint as insufficient at law, pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615), and this motion was granted. Plaintiff’s complaint was dismissed with prejudice in an order dated January 18,1989, and he now brings this appeal.

The issues raised on appeal and properly before this court are: (1) whether the City of Chicago is subject to Public Act 84 — 1018 and, if so, whether requiring plaintiff to take a leave of absence from his position with the police department upon his election to the General Assembly violates the statute; (2) whether the facts of this case set forth a prima facie case for retaliatory discharge; and (3) whether plaintiff’s constitutional rights to equal protection and due process of law were violated under the facts presented.

Our consideration of this appeal must begin with a discussion of Public Act 84 — 1018 and the Illinois Supreme Court case, Dineen v. City of Chicago (1988), 125 Ill. 2d 248, 531 N.E.2d 347. In Dineen two Chicago police officers and Lodge 7 of the Fraternal Order of Police (the bargaining unit for Chicago police officers below the rank of sergeant) brought an action challenging the Chicago police department rule that its officers take unpaid leaves of absence upon becoming candidates for public office. It was contended that the leave-of-absence policy for police officers running for political office was invalidated by Public Act 84 — 1018.

As noted in Dineen, Public Act 84 — 1018, which took effect on October 30, 1985, amended article 10, divisions 1 and 2.1, of the Illinois Municipal Code (herein referred to as the Code) (see 111. Rev. Stat. 1985, ch. 24, pars. 10—1—27.1, 10—2.1—5.1) and the Fire Protection District Act (see Ill. Rev. Stat. 1985, ch. 127½, par. 37.16a) by adding provisions which prohibit the entities governed by those statutes from restricting the political activities of their employees. Public Act 84— 1018 also contained a preemption provision declaring that any existing laws or ordinances of home rule units of government "inconsistent with this Act are hereby superseded.”

In Dineen the theory set forth by the plaintiffs at trial was that the preemption provision of Public Act 84 — 1018 applied not only to those municipalities covered under article. 10, divisions 1 or 2.1, and the fire protection districts, but to all home rule units and, thus, to the City of Chicago. The appellate court reversed the trial court’s finding in favor of the plaintiffs, ruling that Public Act 84 — 1018 affected only municipalities covered under division 1 or division 2.1 of article 10 of the Code and that the City of Chicago did not operate under these provisions.

In their appeal to the Illinois Supreme Court plaintiffs, in addition to renewing their argument that the public act precluded all home rule units from restricting the political activities of their employees, advanced for the first time the position that the City of Chicago was a municipality covered under article 10, division 1, of the Code. The supreme court sustained the appellate court’s decision, affirming the ruling that Public Act 84 — 1018 applied only to those municipalities covered under division 1 or 2.1 of the Code. However, the court refused to consider whether the City of Chicago was such a municipality, finding that this issue had been waived by the plaintiffs because of their failure to raise it at the trial level or in their petition for leave to appeal to the supreme court.

It is important to note, however, that the court in Dineen specifically acknowledged the viability of the issue by its statement:

“Clearly, we have the authority to consider the plaintiffs’ new argument. But the resolution of the question is by no means clear, and we decline to consider here an argument that was not presented in the proceedings below and is raised here as an afterthought. We note, however, that our decision in this appeal is made without prejudice to the rights of persons who are not parties to the present action to raise the same argument in a future case, or to the rights of the present plaintiffs to raise the argument in a future case arising from a different cause of action.” 125 Ill. 2d at 266.

The plaintiff in the present case raised at trial the issue of whether the City of Chicago, at least with respect to its police department, is covered under division 1 of the Code and, as such, prohibited by Public Act 84 — 1018 from enforcing any rules or regulations, such as the leave-of-absence policy, that restrict the political activity of its employees. Consequently, this case goes beyond Dineen and the trial court erred when it held that Dineen was dispositive on the issue of whether a violation of the public act occurred. We, therefore, must now consider whether the City of Chicago is a municipality covered under article 10, division 1, of the Illinois Municipal Code and, if so, whether the leave-of-absence policy involved here violates Public Act 84-1018.

In 1976 the City of Chicago enacted a personnel ordinance, superseding the civil service system set forth in article 10, division 1, of the Illinois Municipal Code. (See Chicago Municipal Code §25.1 — 1 (1976).) However, two provisions of the Code, section 10 — 1—18.1 and section 10 — 1—45, were expressly retained. It is plaintiff’s position that the retention of these two provisions signified the City’s adoption of article 10, division 1, for the purposes of the its police employees and, therefore, the City must be subject to the prohibitions of section 10— 1 — 27.1 with regard to regulations affecting its police personnel. We disagree.

It has previously been held that the City of Chicago, by enacting a separate personnel ordinance to replace the civil service system set forth in the Illinois Municipal Code, was not a municipality pperating under article 10, division 1, of the Illinois Municipal Code. (Dineen v. City of Chicago (1987), 152 Ill. App. 3d 90, 93, 504 N.E.2d 144; Reaman v. Personnel Board (1981), 96 Ill. App. 3d 919, 422 N.E.2d 120.) In addition, the court in Resman stated:

“Section 25.1 — 13 [of the municipal code of Chicago] does not except police officers from the operation of chapter 15.1, and section 25.1 — 3 makes it clear that police officers are included within the city’s personnel scheme." (Emphasis added.) 96 Ill. App. 3d at 922.

We concur with the conclusions of these courts and find that the City of Chicago is a home rule unit which does not operate under article 10, division 1, of the Illinois Municipal Code. Article 10, division 1, of the Code is an optional provision. (Dineen, 152 Ill. App. 3d at 93; Ill. Rev. Stat. 1985, ch. 24, par. 10—1—43.) By enacting its own personnel code, the City of Chicago clearly exercised its power to remove itself from the operation of division 1.

Furthermore, we find no validity to plaintiff’s argument that the retention of the two State code provisions somehow exempts police officers from the public employment system established in the municipal code of Chicago or places the Chicago police department under the mandates of article 10, division 1, of the Code. The only significance we attach to the retention of the provisions of the Illinois Municipal Code is the city’s intention to maintain review of police board decisions under the Administrative Review Law. Consequently, we find that the City of Chicago is not subject to the prohibitions of section 10 — 1—27.1 of the State municipal code or the preemption provision of the amendatory act. It follows that the leave of absence complained of here does not violate the statutory provisions of Public Act 84 — 1018 and, therefore, is not unlawful or wrongful. The trial court’s dismissal of the cause of action was proper.

We now consider whether plaintiff set forth a prima facie case for the common-law tort of retaliatory discharge in his third-amended complaint. A valid claim for retaliatory discharge must contain allegations that (1) plaintiff was discharged, (2) the discharge was in retaliation for plaintiff’s activities, and (3) the discharge violates a clear mandate of public policy. (Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529, 519 N.E.2d 909.) In the present case plaintiff does not allege that he was discharged, but that he was “constructively discharged,” i.e., that he was compelled to relinquish his position as a police officer because of his political activity.

We note, however, that plaintiff’s complaint belies this charge. In paragraph 18 of count II of plaintiff’s third-amended complaint it states:

“On January 27, 1986, Plaintiff resigned from his position in the Department of Police in order to transfer pension credits to the General Assembly Retirement System because he could not receive a normal 20 year pension credit from the Department of Police since the superintendent of police had advised him he would have to resign from his position as State Senator in order to return to the Department of Police. Given the superintendent’s position regarding the leave of absence policy, the only way Plaintiff could receive pension credit for his past service as a police officer was to transfer the credits into the General Assembly Retirement System, which required Plaintiff’s resignation from the Department of Police.”

We conclude from these facts, as did the trial court, that plaintiff was not discharged, but rather, resigned voluntarily from his position with the Chicago police department in order to take advantage of certain benefits made available to him by newly enacted legislation.

We are mindful of plaintiff’s assertion that his resignation, although voluntary, was “compelled” by the leave-of-absence policy subscribed to by the police department, which prevented him from maintaining an active duty status with the police department concurrently with his term of office in the Illinois legislature. Plaintiff suggests that these conditions sufficiently allege a “constructive discharge,” which meets the requirements of discharge for the tort of retaliatory discharge. Plaintiff’s claim must fail for two reasons. First, the concept of constructive discharge has been rejected in the context of retaliatory discharge cases, having been found to be outside the narrow parameters of that cause of action. (Scheller v. Health Care Service Corp. (1985), 138 Ill. App. 3d 219, 223-25, 485 N.E.2d 26.) Secondly, even if the concept of constructive discharge were recognized in Illinois within the context of a common-law tort of retaliatory discharge, plaintiff failed to set forth facts to establish a constructive discharge.

In other causes of action where the concept of constructive discharge has been recognized (e.g., employment discrimination cases brought under State or Federal statutes), it has been construed as requiring a showing that the employer deliberately or intentionally made the employee’s working conditions so intolerable that a reasonable person would have felt compelled to resign to escape the intolerable conditions. (See Burnell v. General Telephone Co. of Illinois, Inc. (1989), 181 Ill. App. 3d 533, 537, 536 N.E.2d 1387; Steele v. Human Rights Comm’n (1987), 160 Ill. App. 3d 577, 581, 513 N.E.2d 1177.) In the present case plaintiff did not set forth any facts to indicate an intolerable working condition. While plaintiff’s decision to resign may have been motivated, wholly or in part, by the leave-of-absence policy practiced by the police department, there is no basis for finding that this regulation is unlawful or in any sense wrongful. Therefore, at best plaintiff showed that he made a reasoned decision to relinquish his position with the police department after weighing all his options. This does -not establish a constructive discharge. See the Burnell and Steele cases cited above.

Plaintiff next argues that his right to equal protection under the State and Federal Constitutions was violated, and as support for his claim he names a number, of legislators who have apparently continued their city employment while serving their terms of office. However, we find these facts wholly insufficient to set forth a claim that plaintiff’s right to equal protection of the law has been denied.

“ ‘The Due Process Clause *** is not a guarantee against incorrect or ill-advised personnel decisions’ *** [and even] ‘[t]he unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.’ ” (Fagiano v. Police Board (1983), 98 Ill. 2d 277, 291-92, 456 N.E.2d 27, 34, quoting Bishop v. Wood (1976), 426 U.S. 341, 350, 48 L. Ed. 2d 684, 693, 96 S. Ct. 2074, 2080, and Snowden v. Hughes (1944), 321 U.S. 1, 8, 88 L. Ed. 497, 503, 64 S. Ct. 397, 401.) In the present case plaintiff’s third-amended complaint only charged that certain other legislators were allowed to maintain their city employment while serving in their elected office, although he was, denied this opportunity. Plaintiff does not establish that he and these other legislators were, in fact, similarly situated so that he was entitled to be treated in the same manner. More importantly, the complaint contains no allegation of purposeful discrimination, i.e., the preferential and arbitrary denial of a right, benefit, or privilege to a person or class of persons without a reasonable basis. (See Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 428 N.E.2d 489.) For example, plaintiff does not allege that only Republicans were denied the right to serve in the legislature and continue in their city employment or other such invidious bias. Consequently, we find no basis for plaintiff’s equal protection claim.

Nor do we find that plaintiff’s due process rights were violated. It is true that a police officer, as a public employee, has a property right in his or her own continued employment that cannot be taken away without due process of law, i.e., upon written charges and after an opportunity to be heard. (See Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487; Chicago Municipal Code, §11—3 (1982).) However, as stated earlier, the facts alleged do not disclose that plaintiff was discharged or denied continued employment in the police department. Rather, he voluntarily resigned. Furthermore, the fact that plaintiff’s resignation may have been motivated by the leave-of-absence policy is of no consequence since the policy is not wrongful.

In summary, the allegations in plaintiff’s third-amended complaint failed to state a cause of action against the city or any of its defendant-officials and so we affirm the trial court’s dismissal of the complaint as to all the defendants.

Affirmed.

COCCIA, P.J., and GORDON, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    SAMUEL JOSEPH JONES, Plaintiff-Appellant, v. CHICAGO AND NORTHWESTERN TRANSPORTATION COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 1—90—0205
    Opinion filed November 16, 1990.
    Rehearing denied December 18, 1990.
    Law Offices of Michael James Frost, of Chicago (Michael J. Frost and Kenneth R. Klapacz, of counsel), for appellant.
    Daniel R. LaFave, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Samuel Joseph Jones (Jones), plaintiff, appeals from an order of the trial court striking one count of a three-count amended complaint with prejudice and striking the second and third counts without prejudice in a personal injury action.

The facts are as follows.

On April 16, 1986, Jones was injured, resulting in the loss of his right leg. Jones filed a two-count complaint naming the Chicago and Northwestern Transportation Company (CNW), charging that its negligence proximately caused his injuries. Jones was a monthly passenger on trains CNW operated between Chicago and Winfield. Jones charges that CNW’s conductor prohibited him from leaving the train at his intended destination of the Winfield stop. Further, the conductor did not tell him he could use his ticket to board a train from the next stop, West Chicago, to return to Winfield six minutes later. At West Chicago, Jones deboarded the train. Jones left the West Chicago station, proceeding to walk eastbound from the West Chicago stop along the north side of the rail bed toward Winfield. The complaint alleges that at a point identified as milepost 27.98, Jones was struck by a train or its appurtenances which caused his injuries, including the loss of his right leg.

The complaint was filed in two counts. Count I alleged that Jones was a passenger to whom CNW owed the highest degree of care in transporting him to his intended destination. Count II of the complaint alleged Jones was owed a duty of ordinary care and listed claimed negligent acts in the operation of CNW’s trains.

CNW filed a motion to strike count I of Jones’ complaint. The trial court struck count I but sustained count II. Jones moved to reconsider and vacate the order and for leave to file a three-count amended complaint. On December 13, 1989, the trial court made the following rulings:

1. Jones’ motion to reconsider and vacate that part of the court order entered October 17, 1989, granting defendant’s motion to dismiss count I of the complaint was denied.

2. Jones was denied leave to file count I of the first amended complaint and leave to amend count I was denied.

3. Jones was denied leave to file counts II and III of the first amended complaint at law without prejudice.

4. The order was made a final and appealable order. 107 Ill. 2d R. 304(a).

The sole issue on appeal is the duty owed by CNW to Jones. Count I of the amended complaint alleged that it was the duty of CNW to exercise the highest degree of care and caution in the operation of train No. 63 and in transporting Jones from Chicago to Winfield. Jones alleges that CNW violated this highest degree of care to transport him to his destination, and to provide him a reasonable opportunity to reach a place of safety, when it negligently failed to allow him to get off the train at his intended stop of Win-field, then let him off at the next stop, West Chicago, without providing him a reasonable opportunity to return to Winfield and reach a place of safety. CNW does not dispute the fact that it owes its passengers the highest duty of care but claims that Jones was not a passenger when he was seriously injured while walking along the rail bed from the West Chicago station to the Winfield station.

We agree with the defendant (CNW) and affirm the trial court’s dismissal of count I of the original complaint and its denial of leave to file count I of the amended complaint.

A common carrier owes its passengers the highest degree of care, and the passenger-carrier relationship does not terminate until the passenger has had a reasonable opportunity to reach a place of safety. (Pharr v. Chicago Transit Authority (1984), 123 Ill. App. 3d 205, 462 N.E.2d 753.) When a passenger on a common carrier ceases to be a passenger is not clearly defined in the law. It depends on varying circumstances such as the location of boarding or deboarding. Katamay v. Chicago Transit Authority (1972), 53 Ill. 2d 27, 289 N.E.2d 623.

However, it is well established that once a passenger has safely alighted from a train, the only duty a carrier owes a passenger that debarked from the train is the duty of ordinary care. (Garrett v. Grant School District No. 12 U (1985), 139 Ill. App. 3d 569, 487 N.E.2d 699; Sims v. Chicago Transit Authority (1954), 4 Ill. 2d 60, 122 N.E. 2d 221; Davis v. South Side Elevated R.R. Co. (1920), 292 Ill. 378, 127 N.E. 66.) In Rotheli v. Chicago Transit Authority (1955), 7 Ill. 2d 172, 130 N.E.2d 172, the Illinois Supreme Court examined the duty of care owed a passenger who, in possession of a transfer, was injured after exiting one bus while waiting to catch another one. The court examined the passenger-carrier relationship and held that even when the carrier discharges a passenger at an intermediate point of his journey, the duty to exercise the highest degree of care is suspended until the conveyance is resumed. (Rotheli, 7 Ill. 2d at 177, 130 N.E.2d at 175.) A passenger like Jones who is struck by a train after having safely debarked from another train might be considered in law a business invitee to whom the railroad owed an ordinary duty of care. Poltrock v. Chicago & North Western Transportation Co. (1986), 151 Ill. App. 3d 250, 502 N.E.2d 1200.

Before the issues of negligence and causation are addressed, a legally sufficient duty must first exist. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223.) To state an action in negligence, the complaint must allege facts which support the duty alleged. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387, cert. denied (1988), 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077.) The existence of a duty is a question of law to be determined by the court. (Fancil v. Q.S.E Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538.) Questions concerning a breach of that duty and proximate cause of the injury are questions for the trier of fact. Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 393, 493 N.E.2d 1022.

The sole inquiry before us is whether CNW owed Jones the highest duty of care based on an alleged passenger-carrier relationship when Jones was struck by a train. Nothing in the parties’ briefs or the record indicates that Jones did not alight the train safely at the West Chicago station. We must find that when Jones alighted the train without incident at the West Chicago station, Jones ceased to be a passenger to whom CNW owed the highest duty of care. Since Jones charged CNW with the duty to use the highest degree of care in both count I of his original complaint and count I of his amended complaint, the trial court properly struck the original count I, denied his motion to reconsider and his motion to file the amended count I making the same charge with prejudice.

Count II, alleging a duty of ordinary care, remains pending in the circuit court of Cook County. Since Jones’ request for leave to file amended counts II and III (which plead ordinary negligence) was denied without prejudice, nothing in the law precludes Jones from obtaining leave to refile counts II and III of his amended complaint.

For the foregoing reasons, the matter is remanded to the trial court for further proceedings consistent with this opinion.

Affirmed and remanded for further proceedings.

COCCIA, P.J., and GORDON, J., concur.


author: JUSTICE EGAN

text:
      In re F.B. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Gary T. Morgan et al., Respondents-Appellants).
    First District (6th Division)
    No. 1—89—3340
    Opinion filed November 16, 1990.

      Neil F. Hartigan, Attorney General, of Springfield, and Winston & Strawn, of Chicago (Cathy Ann Pilkington, Special Assistant Attorney General, of Chicago, Paul P. Biebel, Jr., and Stephen S. Morrill, of counsel), for appellants.
    Patrick T. Murphy, Public Guardian, of Chicago (Susan Tone Pierce, Mary Bird, and Kathleen Kennedy, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

This is an appeal from a contempt order against Gary Morgan and Ina Denton, both employees of the Illinois Department of Children and Family Services (the Department), for failure to provide information in a report to the presiding judge of the juvenile division of the circuit court of Cook County. The request for the report was made by the public guardian of Cook County (Public Guardian); and the contempt order was entered on the motion of the Public Guardian. The contempt order provided for a fíne of $100 for each week Morgan and Denton failed to comply with the order.

The Department is a State agency created by statute and charged with the responsibilities of providing social. services for children and their families, of operating children’s institutions and of providing, other rehabilitative and residential services. (Ill. Rev. Stat. 1989, ch. 23, par. 5001 et seq.) Patrick T. Murphy is the Public Guardian appointed by the chief judge of the circuit court of Cook County. (Ill. Rev. Stat. 1989, ch. 110½, par. 13—1.1.) He has also been appointed guardian ad litem and attorney for all abused, neglected and dependent children under the jurisdiction of the juvenile division of the Cook County circuit court.

The Department maintained three shelters for the benefit of abused, neglected and dependent children: Chicago Youth. Services (CYS), Herrick House (Herrick) and Dickens Shelter (Dickens). CYS and Dickens are located in the City of Chicago; and Herrick is located in Bartlett, Illinois.

This case, is the second appeal before us arising out of proceedings between the same parties. The first appeal centered on the extent of the authority- of the juvenile court to entertain actions for mandamus and injunction; this appeal centers on the propriety of the order entered by the juvenile court presiding judge pursuant to section 2—28 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, par.. 802—28(1)), which provides, in part, as -follows:

“The court may require any legal custodian or guardian of the person appointed under this Act to report periodically, to the court or may cite him into court and require him or his agency, to make a full and accurate report of his or its doings in behalf of the minor. The custodian or guardian, within 10 days after such citation, shall make the report, either in writing verified by affidavit or orally under oath in open court, or otherwise as the court directs. Upon the hearing of the report the court may remove the custodian or guardian and appoint another in his stead or restore the minor to the custody of his parents or former guardian or custodian.”

Because the proceedings in each appeal are interconnected, a recitation of their lengthy history is required.

On May 1, 1989, the Public Guardian filed a motion in the name of one minor, F.B., for a report from the Department to the court pursuant to section 2 — 28 of the Juvenile Court Act seeking the following information:

(a) the population of every Department shelter from April 14, 1989, to April 25, 1989, including Dickens, Herrick and CYS and the number of children each shelter is licensed to take;

(b) the sleeping arrangements for the children who are placed at each of these shelters after capacity is reached;

(c) a description of staffing patterns and monitoring procedures for the evening and night coverage of children’s sleeping quarters for each shelter;

(d) a description of staffing changes that have been made to accommodate excess capacity and the name of each additional staff person who has worked when capacity was exceeded;

(e) whether the Department had contacted its licensing division to request that the license capacity of the shelter be increased;

(f) the composition of the populations of every shelter including but not limited to assaultive children, sexually abused children, sexual offenders, suicidal children, children who are involved in gangs, developmentally disabled children, medically at risk children, delinquents, and fire setters; and

(g) the efforts the Department had made to develop placement resources for groups of children who constitute a large percentage of the population at the shelters, including babies born with cocaine in their systems..

In support of the motion the Public Guardian alleged that on April 14, 1989, various officials of the Department had instituted a procedure to deal with the overflow of children, who could not be placed at the Maryville Center; that the procedure included authorizing each of the shelters to take up to 15 children over capacity. CYS and Herrick were over capacity by five children; no additional staff had been hired to accommodate the increased number of children; the Department had placed children in the offices of the Emergency Service Center overnight because the population in Maryville Center , was at capacity; significant portions of the shelter population fall into groups for which the Department had failed to develop any program. For example, there were a significant number of babies on apnea monitors who had been at Maryville Center for weeks or even months. The Department had failed to develop foster care resources for babies requiring apnea monitors. The motion also alleged on information and belief that the increased numbers of children being placed in the shelters resulted from the Department’s closing intake at one of its major foster care agencies.

The Department filed a motion to dismiss the Public Guardian’s motion for a report, contending that the report requested did not come within the purview of section 2 — 28 of the Act, that the Department was making good-faith attempts to provide adequate care for the increasing number of children at the shelters and that the report was unnecessary because the Department would have given the Public Guardian the information sought by telephone or written communication. (The record does not contain any order on the Department’s motion to dismiss; we assume the motion to dismiss was denied since the Department filed a report on May 26. We assume also from other pleadings that the court ordered a report in conformance with the Public Guardian’s motion.)

On May 26, the Public Guardian filed a supplemental petition for mandamus and injunctive relief in the name of a class consisting of F.B. and other abused, neglected or abandoned children who were placed in shelters by the Department. (We are informed that they number approximately 150.) The petition alleged, in substance, the following:

CYS is a shelter for male adolescents, ages 12 to 19 years. The capacity is 30. On one night as many as 14 children beyond capacity spent the night at CYS. To deal with the excessive number of children coming into the shelter, the Department obtained fold-away beds and cots for sleeping purposes. To provide adequate supervision in light of the excessive number of children, Department supervisors and administrators volunteered to work, and did work, overtime. A number of the wards at CYS were either mental or delinquency cases.

Herrick House is a temporary shelter for male and female wards from 13 to 20 years of age. The capacity is 40. Excessive numbers of wards had been coming into Herrick House. Ten wards over the capacity spent the night on May 19, 1989. Again to deal with excessive numbers of wards coming into Herrick House, the Department obtained fold-away beds or cots; and again, Department administrators and supervisors volunteered their overtime services. A number of the wards at Herrick House were gang members, mentally retarded or mentally ill.

Dickens Shelter is for teenage mothers and their babies and other boys and girls, with a capacity of 30. At times there have been 37 wards in Dickens. Some of the wards at Dickens either had serious mental problems or had a history of being a sexual abuser.

The complaint pleaded specific acts which allegedly disclosed that the Department was not performing its statutory and constitutional obligations. For example, many children slept on flimsy cots placed in a T.V. room; one of the children at one of the shelters was a young man who had a history of hospitalization for a mental disorder; 10 other children did not belong in a shelter environment under any circumstances; they required full-time supervision for their own safety and the safety of others, but the shelter could not provide adequate supervision; those children had been removed from their homes or previous placements because of abuse, neglect or dependency; they were required to live with other youths who were delinquents; as a result, the overextended staff was unable to monitor or supervise the children properly; and the overcrowding created a dangerous environment putting the children at immediate risk of physical and emotional harm. Another example was that many children, some of whom did not know how to swim, swam unsupervised at night in a lake on the premises of one of the shelters. In addition, some of the older boys at one of the shelters were gang members who intimidated younger boys who were not gang members. Many of the younger boys at one of the shelters were afraid to take showers or go to sleep for fear of sexual attacks or gang beatings.

The petition also alleged that at the time of the filing of the complaint the Department was attempting to hire additional staff at each of the shelters.

The petition prayed for an order mandating that:

(a) the Department refrain from placing any child at any Department shelter unless the placement complied with the licensing capacity of the shelter and unless the shelter, with its current population, met applicable fire and building code standards;

(b) the Department refrain from placing any child at any Department shelter unless the child had a minimum degree of privacy at the shelter and unless there was provided for each child adequate sleeping space, recreational facilities, supervision and counseling;

(c) the Department refrain from placing any child at any Department shelter unless the shelter was notified of the child’s history to the extent it was known to the Department, including whether the child had been the victim or perpetrator of sexual abuse, whether the child had been hospitalized for mental illness, whether the child had special medical needs, whether the child had a history of delinquency or violent behavior, and whether the child had a history of drug use.

(d) the Department refrain from placing any child at any Department shelter unless the shelter staff was able to segregate or otherwise protect that child based upon his history; and

(e) the Department place every child who would have been placed at a Department shelter but for the order in a safe, suitable environment.

On June 1, the Public Guardian filed an amended supplemental petition which in substance was the same as the supplemental petition. He also filed a request for a more definite statement in the report that had been filed by the Department on May 26. He alleged that the Department had not sufficiently complied with the judge’s order. Also on June 1, the Department moved the judge to transfer the class action and the mandamus and injunction action to the chancery division. (Although no order on this motion appears in the record, we assume that the motion to transfer to the chancery division was also denied.)

On June 5, 1989, the Department filed a motion to dismiss the amended supplemental petition. The Department contended that the Juvenile Court Act did not authorize an action for mandamus or injunction; alternatively, it contended that the complaint did not state a cause of action for mandamus or injunctive relief; more specifically, the Department contended that mandamus relief was barred because the suit sought to interfere with the Department’s exercise of discretion. The motion also contended that the prayer for relief was not sufficiently certain and definite. The judge denied the Department’s motion to dismiss, and the Department elected to stand on its motion. The judge made no express findings but entered a preliminary injunction in substantial accord with the prayers for relief in the petition.

The order was stayed until midnight June 9, 1989. On June 9, this court entered an order staying the effect of the trial court order and ordered an expedited briefing schedule. Oral argument was heard on August 14, 1989. The Department’s principal argument was that the circuit court exceeded its jurisdiction, contending that the Juvenile Court Act does not authorize the courts to prescribe a course of conduct for the discretionary acts of governmental officers.

Even while the appeal was pending in this court, the parties were active in the juvenile court. On June 19, 1989, the Public Guardian filed a motion for expedited discovery including a request to produce and interrogatories. The motion was based on allegations made by the Department in pleadings in this court filed on June 16, 1989. The motion asked that the Department respond by June 26, 1989. On June 30, the Department filed a motion for a protective order.

On July 17 the Public Guardian filed another motion for a report by the Department. That motion alleged, on information and belief, that the Department had “made plans to place wards of the court in hotels when the capacity at shelters is exceeded”; that “years ago, [the Department] used motels and hotels in the Chicago area to house abused and neglected children. At that time, it was widely reported that many of the children [the Department] placed in these hotels and motels were victims of drug usage, prostitution and assault”; and that “placing children in a motel does not satisfy the Juvenile Court Act, which provides that care be ‘as nearly as possible equivalent to that which should be given by his or her parents.’ ”

The Public Guardian asked that the Department produce two employees of the Department and any documents which would provide the following information:

(1) the names of all hotels or motels which were being considered or which were presently being used to house wards of the court;

(2) the names, positions, levels of training, and professional backgrounds of the individuals who would supervise and/or were supervising children in hotels or motels;

(3) the Department’s plans and procedures for determining the backgrounds of the children, including age, sex, psychiatric background, developmental delay, history of delinquency, history of violence, and history of sex abuse;

(4) the Department’s plans to supervise the children housed in hotels and motels, including how many supervisors would be on site, whether doors to rooms would remain open, what degree the children would be supervised when they were in the rooms;

(5) the Department’s plans to meet the educational and emotional needs of the children, including transportation to school and enrollment in school; and

(6) the Department’s plans to insure that a certain decree was complied with as to children housed in motels.

The motion also asked that the Department report the following information to the court and to the Public Guardian within 48 hours of the time any child was placed in any hotel or motel:

(a) the name, age, sex and birth date of the child;

(b) the number of years the child had been a ward of the Department and the reason the child entered the system originally;

(c) whether the child had any history of psychiatric problems, delinquency, or developmental delay;

(d) whether the child had been a victim of sexual abuse or had sexually abused another person, and if so, what counseling the child had received for such sexual abuse and what counseling the Department would provide for the child while the child was in the hotel or motel;

(e) if the child had a background of mental health or developmental delay, what treatment the Department would provide for the child while he was in the hotel or motel;

(f) educational plans for the child;

(g) recreational programs for the child, including where the recreational programs were located; and

(h) if the child was a mother, where her children were located.

On July 14, the Department filed a motion for a bill of particulars directed to the underlying petition for mandamus and injunction. The judge entered an agreed order that the Public Guardian answer the bill of particulars by July 27. On July 21, the Department filed a motion to dismiss the Public Guardian’s last motion for a report of the Department. The motion to dismiss alleged, in part, that section 2 — 28 was not applicable to the information sought by the Public Guardian and that the information sought as a report was, in fact, a discovery device in the underlying petition for mandamus and injunction and, as such, was an abuse of section 2 — 28. Alternatively, the Department asked that the judge postpone his ruling on the motion to dismiss until this court decided the pending appeal. On July 25, the judge denied the defendant’s motion to dismiss. The judge’s order granted all the information sought by the Public Guardian, including “the names of all hotels or motels which are being considered or which are presently being used to house wards of this court.”

On August 2, the Department filed a motion to reconsider, vacate or modify the order of July 25 on the ground that certain information was protected by executive privilege. Alternatively, the motion asked that the judge certify certain questions under Supreme Court Rule 308(a) (107 Ill. 2d R. 308(a)) for a possible permissible interlocutory appeal to this court. On August 3, the judge denied the motion to reconsider, but he did not require the Department to report which hotels or motels were being considered and he did not require reporting the names of the individuals who would supervise children in hotels or motels. The judge also denied the motion to certify questions under Supreme Court Rule 308(a). Subsequently, on a date not appearing in the record, the Department filed its report in which it stated that no children were then being housed in hotels or motels; that the Department’s intention was to utilize intake information disclosing the children’s backgrounds at the time each child arrived at a facility; and that the Department’s current intention was that minors would stay overnight in a hotel or motel only when shelters were at capacity “and all possible immediate placement resources [had] been exhausted.”

On September 1, 1989, in a Rule 23 order we remanded the cause to the circuit court. (In re F.B. (1st Dist. 1989), No. 89 — 1493 (unpublished order under Supreme Court Rule 23).) We based the remandment order on the fact that the parties had informed us in oral argument that conditions were “better,” but they were unable to say to what extent. The attorney for the Department had also informed us that overcrowding no longer existed. Both sides agreed that there were ongoing efforts on the part of the Department to respond to the problems. We concluded that, since there had been a change of conditions, but we were unable to determine to what extent, and since the trial court retained continuing jurisdiction to vacate or modify its order (see In re Overton (1974), 21 Ill. App. 3d 1014, 316 N.E.2d 201), it was appropriate to vacate the order and to remand the cause.

Statements of fact were made to us by the attorney for the Department, for example, that budgetary constraints hindered the Department and that the Department had acted in good faith. The Public Guardian could not agree that the statements of fact were accurate. We recognized that budgetary limitations and good faith could be relevant factors to be considered by the trial judge in the exercise of his discretion.

Both sides expressed recognition that remandment might be appropriate but asked us to decide the appeal on the merits because the problems might recur. The Department asked us to rule that the courts have no authority to interfere with the Department’s exercise of discretion. We refused to pass on the Department’s argument because the Department had elected to stand on its motion to dismiss and thereby admitted the factual allegations of the complaint. We concluded that we would not decide a question of such sensitivity and widespread importance, involving the separation-of-powers principle, on the basis of the record before us.

On September 8, one week after this court remanded the cause, the Department filed its report informing the trial judge that, in an attempt to prevent future overcrowding conditions in facilities, the Department had contracted with Thorek Hospital, a wing of which would be available for 14 children. The report explained the source of the staffing of the Thorek plan, of the food for the children, of the medical care and of the security arrangements. Thorek was available only for boys 8 to 13 years of age. The report also informed the judge that Uhlich Children’s Home in Chicago had made available to the Department five beds for overnight stays when necessary due to overcrowding at Department facilities.

On October 24 the Public Guardian filed a renewed motion for a report. The motion repeated the procedural history of the case, including the remandment action taken by this court. It alleged that after remand, “[t]he case was reset to October 19, 1989, and subsequently to October 24, 1989, for further proceedings before Chief Judge Hamilton.” It further alleged that since the appellate court remand, “the shelters have again become overcrowded, understaffed, and dangerous for the children.residing hr them.” The motion specifically referred to the overcrowded conditions at .Herrick, Dickens and CYS and alleged the following:

“23. Since Defendants’ representations to the appellate court in August that the overcrowding problems had been resolved, Defendants’ policies and placement practices have continued to create overcrowded and dangerous conditions for children in shelters.
24. Defendant’s report failed to set forth these or other overcrowding conditions at the shelters or the plans for the shelters’ increased populations.
25. Plaintiffs’ amended petition for injunctive relief is pending before this court. Due to the inadequacy of Defendants’ report, Plaintiffs are unable to ascertain the conditions of the shelters or Defendants’ plans for accommodating the recurring and predictable increases in population.” (Emphasis added.)

The motion asked for specific information. Since we will set out the information sought in another part of this opinion, we will not recite it here. Suffice it to say that the Public Guardian’s request for information was comprehensive.

On November 7, the Department filed a response to the renewed motion and maintained that the motion for report was a “transparent effort by [the Public Guardian] to secure [his] discovery more quickly, and without the same procedural protections available to [the Department], than is afforded under the Code of Civil Procedure.”

On November 14, the Department again moved to strike the amended supplemental petition for mandamus and injunctive relief on grounds other than those previously advanced. On the same day, the judge denied the Department’s motion to strike the amended supplemental petition and ordered the Department to file a report which would provide all information sought by the Public Guardian with some limited exceptions.

On December 1 the Public Guardian filed a petition for a rule to show cause against Gary Morgan, the Department’s Guardianship Administrator, and Ina Denton, the Department’s Deputy Director, for failing to comply with the order entered on November 14. On December 5, after a hearing, the judge declared Morgan and Denton in contempt of court and fined each $100 for every week they were not in compliance with his order. The following day the Department filed notice of appeal in the circuit court, and the notice of appeal was filed in this court on December 7.

The Public Guardian once again was not deterred by a notice of appeal. On January 3, 1990, he filed a petition for injunction and declaratory relief under the Federal Civil Rights Act (42 U.S.C. §1983 (1982)). That petition also was brought as a class action and sought an order enjoining the Department from denying the Public Guardian access to information about children who were placed in shelters operated by the Department. He also filed a motion for a preliminary injunction seeking to prevent the Department from moving children from Dickens until appropriate alternative placements had been located for them. We have been informed by the Public Guardian that the motion for preliminary injunction has been withdrawn. We assume, therefore, that the complaint under the Civil Rights Act for declaratory relief and a permanent injunction is still pending.

Once again the Department has seen fit to couch the issue in terms of the court’s authority. It maintains that the order was void for lack of subject matter or personal jurisdiction. What the Department really argues, however, is that the judge should not have entertained a motion for a report while the petition for mandamus and injunction was pending. In short, the Department says that the judge was in error. We agree that the order should be vacated but not on jurisdictional grounds. An order is not without a jurisdictional basis simply because it may be erroneous. (Faris v. Faris (1966), 35 Ill. 2d 305, 220 N.E.2d 210.) The case cited by the Department, In re A.M. (1984), 128 Ill. App. 3d 100, 470 N.E.2d 58, is not in point. In that case the court reversed a contempt citation on the ground that the alleged contemnor had not been properly served with summons. We hold that the trial judge had both subject matter and personal jurisdiction; the Department was a party before him; and the children were wards of the court.

The Department also contends that section 2 — 28 is applicable only to a request for a report on the care given to a particular minor. We do not agree. Acceptance of the Department’s argument would require that the Public Guardian file 150 separate requests for identical reports. The Act is sufficiently broad to encompass one report on a number of wards, assuming that they are factually similarly situated. There appears no reason why a report could not be made as to a properly constituted class.

Next the Department argues that the only recourse available to the judge for an unsatisfactory report of a guardian, or a refusal to report, is removal of the guardian and appointment of another guardian. Again, we do not agree. The Act provides that the judge may remove the guardian and appoint another. The Act also provides that the judge “may cite [the guardian] into court and require him” to make a full report. (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 28(1).) It is inconceivable that the legislature intended that the juvenile court would be powerless to enforce its orders against a guardian who willfully refused to obey them. Even if the legislature did so intend, that intention would be ignored. A court possesses inherent power to enforce its orders by way of contempt, and that power may not be restricted by the legislature. (In re G.B. (1981), 88 Ill. 2d 36, 430 N.E.2d 1096.) The principal cases relied on by the Department (In re Washington (1976), 65 Ill. 2d 391, 359 N.E.2d 133; In re Petition of Owen (1973), 54 Ill. 2d 104, 295 N.E.2d 455) are not contrary to our views. In both Washington and Owen the supreme court struck down the remedial steps taken by the juvenile court. The court did not question the juvenile court’s power to investigate and to seek a report.

The Department also argues that the report procedure under section 2 — 28 deprives it of the protection available under the discovery rules and thus constitutes a denial of the Department’s constitutional right to equal protection of the law. The Department points out that section 2 — 28 provides that a report shall be made within 10 days, unlike the more generous time provisions applicable to the discovery rules, and that section 2^28 does not have a provision comparable to Supreme Court Rule 201(k). (107 Ill. 2d R. 201(k).) The Department also argues that proceeding under section 2 — 28 precludes the Department from objecting to discovery requests that are privileged or constitute attorney work product or are irrelevant or will not lead to the discovery of relevant evidence or are unduly burdensome. The Department’s own actions in this case refute its argument. It sought and received extensions of time for filing a report, and it sought and received protective orders on the basis of privilege. We believe the Department may seek protective orders under section 2 — 28 on the same grounds it might seek a protective order under the discovery rules. We further believe that the court possesses inherent power to require the parties to seek to resolve any disputes over information sought under section 2 — 28 in a manner consistent with the provisions of Rule 201(k). Whether a party is entitled to discovery under the supreme court rules in proceedings in the juvenile court is subject to the discretion of the court. People ex rel. Hanrahan v. Felt (1971), 48 Ill. 2d 171, 269 N.E.2d 1.

The Department also maintains that information may never be sought by the Public Guardian, or the court, under section 2 — 28 whenever the Public Guardian also has pending some other proceedings that could be considered as embracing the same general subject matter as does the requested report. Although a set of circumstances does not come to mind that would justify the Public Guardian pursuing relief under section 2 — 28 and under the discovery rules, we need not and will not adopt so broad a rule as advanced by the Department.

We do believe, however, that the ordered report represented an abuse of discretion under the peculiar facts of this case. It is obvious, and the Public Guardian concedes, that he could have received, by use of the discovery available under his mandamus claim, the information he sought in the motion for a report. However, he advances a number of reasons why the Department should be required to provide the information under section 2 — 28 rather than the discovery rules. First, he says that the report is really to the judge rather than to him. Second, he maintains that the discovery rules place the “burden” on him and that section 2 — 28 places the “burden” on the Department. Third, he maintains that he can get the material more swiftly under section 2 — 28 than he can under the discovery rules.

Our answer to the first argument is that the fact that the report goes to the judge is an artificial distinction. The information also goes to the Public Guardian, and pertinent information acquired during the discovery procedures will also go to the judge when, and if, the Public Guardian seeks relief under the mandamus petition. Our answer to the second argument is that there is no difference between the “burden” imposed on the Public Guardian under the discovery rules than there is under section 2 — 28. It is the Public Guardian who must bring to the court’s attention those matters he wishes reported. Moreover, the motion for a report contained allegations of fact. If those allegations of fact are contested by the Department, the Public Guardian concedes, the court could permit discovery under the supreme court rules. For the same reason, we believe that the Public Guardian’s claim that the information would be necessarily acquired more quickly under section 2 — 28 is without merit. In this case, the judge did grant extensions of time to the Department and did recognize the Depart-merit’s claim of privilege.

In his brief, the Public Guardian tells us that he has never sought to use any information provided by the Department in its reports “in any contested hearing in this case.” That fact is of no consequence. We would be naive if we were to assume that the Public Guardian would never use information received in a report if he determined the information would assist him in his mandamus claim. In oral argument, the attorney for the Public Guardian conceded that the information acquired from the report might be used in the mandamus claim.

The Public Guardian’s answer to a question during oral argument illustrates his position. It was pointed out that the juvenile court judge could have transferred the mandamus and injunction action to the chancery division and have retained the section 2 — 28 motion. If that had happened, the Public Guardian maintained, he would still have the right to seek the same information in both actions, although he conceded that either court, in its discretion, might take steps to prevent “duplicative” efforts. We strongly disagree with his position that he would be able to maintain both actions; and we see no reason to conclude otherwise because both actions were before the same judge. We conclude that the trial judge should have exercised the same discretion the Public Guardian acknowledges he had and should have denied the Public Guardian’s motion brought under section 2— 28.

The Public Guardian first asked for a report; then he filed the mandamus action; then he filed another request for a report on possible uses of hotels and motels; and then he filed another request for a report. In the meantime he was also availing himself of his discovery rights under the mandamus action while the case was pending before us the first time. Even after the present appeal was filed, he brought another separate action under the Federal Civil Rights Act claiming that the Department was denying him access to information. In our judgment, to permit the Public Guardian to proceed at his discretion under both section 2 — 28 and the mandamus action (or the Civil Rights Act claim) would be an open invitation to harassment of the Department. In addition, it could lead to unnecessary duplication of discovery efforts and an attendant waste of judicial resources. The Public Guardian insists that he has no intention of voluntarily dismissing the petition for mandamus and injunction. That being so, it is our view that the Public Guardian cannot have it both ways. For these reasons, we hold that it was an abuse of discretion to order the requested report under section 2 — 28.

Under ordinary circumstances we might refrain from passing on the Department’s additional argument that the order requires disclosure of information beyond the scope of section 2 — 28. Under the unusual circumstances of this case, however, we have decided to address the Department’s argument. We have recited the seemingly labyrinthine procedural history of this case to illustrate the unfortunate impasse resulting from a dispute between two public agencies whose function it is to protect the welfare of unfortunate children. We regret to say that the hopes we felt, when remanding this cause, for an accommodation between these two public agencies, or at least for a resolution of the underlying dispute on the merits, have been dashed. Indeed, we see that even while the first dispute had been pending before us and while the second dispute has been pending, the agencies continued to skirmish.

We have been informed again in oral argument that the “situation is not as serious as it was” and that some good-faith efforts were being made by the Department to insure the safety of the children. Because of those facts, the Public Guardian informs us that the mandamus and injunction actions were “in abeyance.” Although our hopes again were raised that the problems could be resolved, we have concluded that this case presents a problem that will not go away. Therefore, we believe that the interests of the concerned children and the important and sensitive nature of this case dictate that we discuss the proper scope of section 2 — 28 and the delicate balance existing between the duties and powers of the Department, the Public Guardian and the court.

The purpose of section 2 — 28 is to enable the court, which has the ultimate responsibility for the children under its jurisdiction, to be apprised of the treatment accorded the children by their guardians. The Act provides that the court may require the guardian to report “periodically.” In addition, the Act has the following reporting requirement:

“A guardian or custodian appointed by the court pursuant to this Act shall file updated case plans with the court every 6 months. Every agency which has guardianship of a child shall file a supplemental petition for court review, or review by an administrative body appointed or approved by the court and further order within 18 months of an order for shelter care pursuant to Section 2 — 10 and each 18 months thereafter. Such petition shall state facts relative to the child’s present condition of physical, mental and emotional health as well as facts relative to his present custodial or foster care. The petition shall be set for hearing and the clerk shall mail 10 days notice of the hearing by certified mail return receipt requested to the person or agency having the physical custody of the child, the minor and other interested parties unless a written waiver of notice is filed with the petition.
Rights of wards of the court under this Act are enforceable against any public agency by complaints for relief by mandamus filed in any proceedings brought under this Act.” Ill. Rev. Stat. 1989, ch. 37, par. 802 — 28(2).

Under the Act, therefore, the court, after receiving a report, may retain or relieve the guardian, or it may compel a public agency to perform its official duty. In our judgment, it is implicit in the Act that a guardian may not be removed or a public agency compelled to perform an official duty unless the court is first satisfied by proof that the guardian has not performed its duty.

The Department, as a State agency, is invested by the legislature with a wide range of discretion in the exercise of its duties. That discretion, of course, is not unlimited and is- subject to review as evidenced by the express provision of section 2 — 28, which provides that an action for mandamus may lie against a public agency to enforce the rights of wards of the court. Contrary to the apparent argument of the Department, the writ of mandamus may be used to prevent an administrative agency from abusing its discretionary power when the abuse results in manifest injustice. (People ex rel. PPG Industries, Inc. v. Schneiderman (1980), 92 Ill. App. 3d 546, 414 N.E.2d 1059.) On the other hand, the Public Guardian is not the overseer or the ombudsman of the Department. He must establish a clear legal right to the writ of mandamus. (Walter v. Board of Education of Quincy School District No. 172 (1982), 93 Ill. 2d 101, 442 N.E.2d 870.) Mandamus will lie to compel the performance of a specific legal duty, but will not lie where the issuance of the writ would amount to an attempt by the court to prescribe a general course of official conduct. Put another way, mandamus will not lie where a court would be regulating a general course of. official conduct or enforcing performance of official duties generally. People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 332 N.E.2d 649.

Similarly, the power of the court over the Department is not unlimited. In In re Washington (1976), 65 Ill. 2d 391, 359 N.E.2d 133, and In re Petition of Owen (1973), 54 Ill. 2d 104, 295 N.E.2d 455, the supreme court reversed orders of the juvenile court on the ground that the orders represented unjustified interference in the internal administrative procedures of administrative agencies. We not not read the case cited by the Public Guardian, In re Claudia K. (1982), 91 Ill. 2d 469, 440 N.E.2d 78, as any weakening of the holdings of Washington and Owen.

We turn now to the report which the Department was ordered to provide. The motion asked for the following information: the names of Department personnel responsible for monitoring the shelters’ compliance with licensing standards or other safety guidelines, including fire and building codes; the licensing capacities for CYS, Herrick and Dickens; the populations at CYS, Herrick and Dickens; the names of any additional facilities utilized to accommodate increases in the shelter population; whether children were moved among facilities during normal sleeping hours for minors; whether additional staff had been secured to accommodate any increases in the shelter population and, if so, a description of the staffing pattern; the number of staff at each level at CYS, Herrick and Dickens, the current number of staff for each position, and a description of plans and time frames for further hiring of the staff at those facilities; whether any additional staff were hired to accommodate children sent to facilities other than CYS, Dickens or Herrick, and, if so, a description of the hiring practice; whether existing staff from CYS, Herrick and Dickens worked overtime to accommodate any increases in population, and, if so, the work schedule for each of those staff members; the names of the individuals within the Department responsible for developing or implementing a plan to alleviate shelter overcrowding; whether there were any current or long term plans for alleviating the recurring problem of overcrowding at CYS, Dickens and Herrick and, if so, the components of those plans and the time frames for their implementation, including whether that plan provides for increases in January, May or December or other predictable times of shelter population increases; a list of children residing at shelters who have not attended school for reasons other than illness; a list of all counseling services or other such support services available to children placed at CYS, Dickens and Herrick; a list of all recreational activities and programs provided for children at CYS, Dickens and Herrick; and a list of all Department placement resources and a description of Department plans for addressing the long-term placement needs of hard-to-place children who remain in shelters for extended periods or threaten the safety of other children in shelters, including, but not limited to, young mothers and pregnant teens, developmentally delayed youth, and sexual offenders; and the name, address, and phone number of the individual responsible for the development of placement resources for those populations.

The judge ordered the Department to file a report which would provide all information sought by the Public Guardian except the following: the persons within the Department responsible for monitoring the shelters’ compliance with licensing standards or other safety guidelines; whether any additional staff were hired to accommodate children sent to facilities other than CYS, Dickens or Herrick; the identity of the persons in the Department responsible for developing or implementing a plan to alleviate shelter overcrowding and the name, address and phone number of the individual responsible for the development of placement resources for hard-to-place populations who remain at shelters for extended periods or threaten the safety of other children at shelters.

Still left ordered, therefore, is much information not directly related to the immediate care of the children. For example, the Department is ordered to report the following:

(1) “a description of plans and time frames for the hiring of additional staff for CYS”;

(2) “whether any additional staff *** will be hired [at Herrick House] *** and a description of plans and time frames for additional hiring”;

(3) “whether any additional staff *** will be hired [at Dickens] *** and a description of plans and time frames for additional hiring”;

(4) “a description of the hiring practice [which may have resulted from certain nonshelter placements]”;

(5) “whether there are any current or long-term plans for alleviating the recurring problem of overcrowding at CYS, Dickens and Herrick, and, if so, the components of those plans and the time frames for their implementation”; and

(6) “a list of all DCFS placement resources and a description of DCFS plans for addressing the long-term placement needs of hard-to-place population.”

The factual bases for the motion for a report were the allegations of specific acts of overcrowding at CYS, Herrick and Dickens. For example, the Public Guardian alleged that Herrick was overpopulated on 10 days in September and October of 1989. He also alleged, among other things, that one Department employee had written a letter to the Department’s Director requesting permission to increase the capacity of Herrick from 40 to 55 without expanding the physical plant and without installing additional bedroom facilities. The employee also recommended that at least eight additional staff be hired at Herrick to accommodate the increase. Despite the increased population of Herrick the Department had failed to increase the staff at Herrick.

There are other specific examples of what the Public Guardian deemed to be overcrowding without an increase in staff. Those factual allegations led to the conclusional allegations of the Public Guardian that the shelters had again become overcrowded, understaffed and dangerous for the children residing in them.

We cannot turn a blind eye to the allegations of the first request for a report in which the Public Guardian admitted that Depart-. ment personnel were working overtime in an attempt to resolve the problem of overcrowding. Nor can we ignore the representations made to us on two occasions by the Public Guardian that the Department was making good-faith efforts to correct the situation. The record shows also that the Department had contracted with two other facilities, Thorek Hospital and Uhlich Children’s Home, to ease overcrowding. It is our judgment that the allegations of the motion, if true, would not justify the drastic relief sought by the Public Guardian and that the information ordered by the judge, without any proof of mismanagement on the part Of the Department other than that alleged in the motion, constituted an unjustified rummaging through the records of the Department contrary to the purpose intended by section 2 — 28.

Although the propriety of another report is not directly before us on this appeal, for illustrative purposes, we believe it appropriate to discuss the report the court ordered concerning possible use of hotels by the Department. The Public Guardian alleged, on information and belief that the Department had made plans to place children in hotels when the capacity at shelters would be exceeded and that placing children in a hotel did not satisfy the Juvenile Court Act. The Public Guardian did not simply seek to stop what he deemed to be an improper practice, if it were to occur. He also asked for a report which would include the Department’s plans for determining the backgrounds of the children; its plans to supervise the children housed in hotels; its plans to meet the educational and emotional needs of the children and the Department’s plans to insure that a particular decree was complied with as to children housed in hotels. It is our judgment that that order also was unjustified under the circumstances. Although the issue is moot since the Department filed a report, we cite it to illustrate, for future guidance, what we perceive to be a misconception on the part of the Public Guardian as to the proper scope of section 2 — 28. For future guidance of the Department, we express the view that the interest of all parties and the trial court and any reviewing court would be better served if the Department would file responses to factual allegations.

Nothing in this opinion should be construed as a holding that the court might never be entitled to the information sought. Nor do we mean to express approval of any general policy of the Department to put its hand in the face of the Public Guardian when he is seeking reasonable access to information in the performance of his duties in representing the children.

For these reasons, the orders of contempt are reversed.

Orders reversed.

LaPORTA, P.J., and RAKOWSKI, J., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICARDO NUNO, Defendant-Appellant.
    First District (4th Division)
    Nos. 1—87—2088, 1—88—2933 cons.
    Opinion filed November 21, 1990.

      Randolph N. Stone, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Paul Carstensen, and Thomas O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Following a jury trial, defendant, Ricardo Nuno, was found guilty of attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8—4, 9—1) and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12—2). He was sentenced to an extended term of 45 years in the Illinois Department of Corrections.

On appeal, the following issues are presented for review: (1) whether the trial court committed harmless error by giving the jury ambiguous instructions concerning the element of intent required for attempted murder; (2) whether the trial court correctly found that the State met its burden of proving beyond a reasonable doubt that defendant intended to kill the victim, Eric Mendoza; (3) whether the trial court properly sentenced defendant to 45 years’ imprisonment pursuant to the extended-term provisions of the statute (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3.2(b)(2)); and (4) whether the trial court properly considered a victim impact statement in sentencing defendant.

We reverse and remand.

Background

Evidence produced at trial established that on May 23, 1986, Eric Mendoza saw a white Cadillac automobile parked on the street. Mr. Mendoza walked to a house with one of the neighborhood children to inquire about who owned the car. After the inquiry, Mr. Mendoza approached the automobile and opened the hood to examine the engine.

Three men, including defendant, approached Mr. Mendoza while he was looking at the car. Defendant confronted Mr. Mendoza and accused him of trying to steal parts of the automobile.- Witnesses testified that Mr. Mendoza talked to the three men about purchasing the automobile. Shortly after the conversation commenced, defendant pushed Mr. Mendoza; he responded by saying that he did not want any trouble. Whenever Mr. Mendoza attempted to leave, defendant stopped him. Defendant gave Mr. Mendoza “the finger.” Then, the two men began to fight. Again, Mr. Mendoza tried to leave. Defendant continued to strike Mr. Mendoza while he was trying to escape. Then, a screwdriver fell out of Mr. Mendoza’s pocket.

Witnesses maintain that while Mr. Mendoza was pinned to the ground, defendant picked up the screwdriver and stabbed him in the head twice. After defendant stabbed the victim once, defendant asked the victim whether he had “had enough.” Defendant stabbed the victim a second time and thereafter fled the scene. The stabbing took place at 5:30 p.m. on March 23, 1986. Later, witnesses identified defendant and the weapon.

The victim was taken to the hospital by his cousin, Arlette Mendoza, and her husband, Teddy Diaz. He was treated at the hospital by Dr. Jafar J. Jafar, a board-certified neurosurgeon. Dr. Jafar testified that Mr. Mendoza’s skull was fractured on the left side, the saggital sinus area was punctured, and the front of his brain was lacerated. Dr. Jafar performed a craniotomy. During the surgery, Dr. Jafar removed a subdural hematoma on top of the brain and debrided (removal of unhealthy tissue) the area of the wound. Dr. Jafar testified that the victim was struck with a pointed instrument such as an ice pick or a screwdriver. He also testified that a neurosurgeon must use power tools to open the skull and that the assailant must have struck the victim with a great deal of force in order to have penetrated the skull. After the initial surgery, Dr. Jafar performed three additional operations on Mr. Mendoza.

As a result of the stabbing, Mr. Mendoza is unable to walk without the aid of a cane and leg braces. He cannot carry on a normal conversation or control his facial muscles. He can no longer feed himself or fasten his own clothes. Before the attack, he could do everything for himself. He was a healthy, able-bodied young man, and a student of automobile mechanics at the Allied Institute of Technology.

Opinion

The trial court instructed the jury that defendant could be found guilty of attempted murder if it found defendant intended to kill or cause great bodily harm. The specific instructions were as follows:

“THE COURT: A person commits the offense of murder when he kills an individual without lawful justification, if in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual, or he knows that such acts will cause death to that individual, or he knows that such acts create a strong probability of death or great bodily harm to that individual. *** A person commits the crime of attempt when he, with intent to commit the offense of murder, does any act which constitutes a substantial step toward the commission of murder.” (Emphasis added.)

Defendant contends that the trial court committed plain error by giving the jury incorrect instructions concerning the requisite element of intent. Defendant alleges that this error violated his rights under the due process clause and that this holding must be reversed even though defense counsel failed to object. The State maintains that defendant waived his right to challenge the jury instructions on appeal and that any error in the jury instructions was harmless error.

Initially, the People maintain that defendant waived the right to raise the issue of improper jury instructions on appeal because defendant failed to object to the jury instructions during the trial or the instruction conference. In general, a party who fails to object to instructional error, or fails to raise the issue in a post-trial motion, waives the right to contest the error on appeal. (People v. Reddick (1988), 123 Ill. 2d 184; People v. Lyles (1985), 106 Ill. 2d 373; People v. Edwards (1978), 74 Ill. 2d 1; People v. Precup (1978), 73 Ill. 2d 7; People v. Cregar (1988), 172 Ill. App. 3d 807.) However, we hold that defendant has not waived appellate review of the jury instructions.

The controlling case on this issue is People v. Gentry (1987), 157 Ill. App. 3d 899. In Gentry, we held that a party may raise the issue of improper attempted murder instructions on appeal even if he failed to raise the issue at trial. Justice Linn wrote the following: “The record evinces the fact that Gentry did indeed fail to object at trial to the instructions in question. However, the specific intent to kill is an essential element of the crime of attempted murder. [Citation.] Accordingly, *** we will review this issue ***.” (Gentry, 157 Ill. App. 3d at 902.) We must apply the precedent set forth in Gentry to the case at bar. Accordingly, we find that defendant did not waive his right to appellate review of the jury instructions. Therefore, this court will review the instructions.

• 2 The State also maintains that any error in the jury instructions constituted harmless error because the jury could not have found defendant not guilty of attempted murder even if it had been properly instructed. We disagree. We hold that the jury instructions constituted reversible error because they failed to include the required element of specific intent.

Section 9 — 1 of the Criminal Code of 1961 defines murder as follows:

“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual ***.” Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(a)(1), (a)(2).

A person commits “attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 8—4(a).

The Illinois Supreme Court has held that the specific intent to kill is a requisite element of attempted murder. “Attempted murder requires a specific intent to commit murder ***.” People v. Trinkle (1977), 68 Ill. 2d 198, 202.

Furthermore, this court has previously held that “a discrepancy exists between the culpable mental state for attempt, which requires an intent to commit the offense, and the alternative culpable mental states for murder, which include not only intent to kill another, but also intent to do great bodily harm [citation], or knowledge that one’s acts create a strong probability of death or great bodily harm [citation].” (People v. Kraft (1985), 133 Ill. App. 3d 294, 299.) This court has also held that “a trial court instructing a jury on the crime of attempted murder must make it clear that specific intent to kill is the pivotal element of the offense, and that intent to do bodily harm, or knowledge that the consequences of defendant’s act may result in death or great bodily harm, is not enough.” (Emphasis added.) People v. Gentry (1987), 157 Ill. App. 3d 899, 903; see also People v. Kraft, 133 Ill. App. 3d at 298, citing People v. Harris (1978), 72 Ill. 2d 16, 27.

It has long been established that “an instruction to a jury that it may find a defendant guilty of attempted murder upon its finding that the defendant intended to do great bodily harm is erroneous reversible error.” (People v. Okundaye (1989), 189 Ill. App. 3d 601, 607; see People v. Harris, 72 Ill. 2d at 24, 26-27; People v. Trinkle (1977), 68 Ill. 2d 198, 201, 204; People v. Gentry, 157 Ill. App. 3d at 903-04, 905-06; People v. Cantu (1987), 157 Ill. App. 3d 934, 937-38.) “Reversible error” is a substantial error which prejudices the complaining party. Reversible error warrants a reversal of the lower court’s judgment upon appeal. (Black’s Law Dictionary 487 (5th ed. 1979); see also People v. Whitlow (1982), 89 Ill. 2d 322, 341.) The instructions do not constitute harmless error because the error was prejudicial to defendant.

In the case at bar the instructions given to the jury for attempted murder were erroneous. The jury was instructed that it could find defendant guilty of attempted murder if defendant intended to kill or cause great bodily harm. These instructions enabled the jury to convict defendant of attempted murder if it was merely convinced that defendant intended to cause great bodily harm. Intent to cause great bodily harm is not an element of attempted murder. Therefore, the instructions enabled the jury to convict defendant of attempted murder without finding that he specifically intended to kill Mr. Mendoza.

Initially, the jury was confused by the court’s instructions. The jury’s confusion was manifested in a question it addressed to the court during its deliberation. The jury’s question read as follows:

“We would like a clarification if possible, of a statement in the attempted murder propositions. In attempt, the second proposition states ‘defendant did so with intent to commit the offense of murder.’ Does ‘commit the offense of murder’ refer to the propositions in the ‘murder’ definition[?]” (Does the intention to cause great bodily harm also mean the intention to commit murder?)

The jury was confused by the error raised in this appeal, and it went on to find defendant guilty of attempted murder.

In previous appeals of attempted murder cases involving jury instructions similar to the instructions given in the case at bar, we reversed defendants’ convictions and remanded the causes for a new trial. For example, in People v. Kraft (1985), 133 Ill. App. 3d 294, this court reversed an attempted murder conviction because “[t]he instructions given * * * would have permitted a conviction upon a finding that defendant acted with knowledge that his actions created a strong probability of death even if the jury believed defendant did not intend to kill anyone.” (Kraft, 133 Ill. App. 3d at 302.) Similarly, in People v. Cantu (1987), 157 Ill. App. 3d 934, we reversed defendant’s conviction because the instructions were “defective” with respect to the intent element of attempted murder. (Cantu, 157 Ill. App. 3d at 935.) Finally, in People v. Okundaye (1989), 189 Ill. App 3d 601, we reversed defendant’s attempted • murder conviction because the jury instructions were erroneous. We held that “[defendant had an absolute right to have the jury determine by accurate governing instructions whether he acted with or was guilty of the specific intent to kill [the victim].” Okundaye, 189 Ill. App. 3d at 607.

We find that the erroneous ■ instructions given in the case at bar encroached upon defendant’s right to a fair trial. For the aforementioned reasons, we must reverse defendant’s conviction and remand the cause for a new trial.

Defendant next contends that the evidence failed to establish' his guilt beyond a reasonable doubt. When an appellate court reverses a criminal conviction and remands the cause for a new trial, the appellate court should address defendant’s contention that the evidence at trial was insufficient in order to avoid the risk of subjecting the defendant.to double jeopardy. (People v. Taylor (1979), 76 Ill. 2d 289, 309.) We find that there was sufficient evidence in the record to establish defendant’s guilt beyond a reasonable doubt. Several eyewitnesses testified that defendant insisted upon fighting Mr. Mendoza, who attempted to leave and avoid an altercation. Witnesses also maintained that defendant pinned Mr. Mendoza to the ground and stabbed him in the skull twice. We find that the evidence of defendant’s guilt of attempted murder was not improbable or unsatisfactory. (See People v. Cantu (1987), 157 Ill. App. 3d 934, 939.) However, our holding here as to the sufficiency of the evidence is not binding on the court on retrial. Taylor, 76 Ill. 2d at 310.

.Finally, defendant alleges that the trial court improperly imposed an extended-term sentence and that the trial court improperly considered victim impact evidence in sentencing him. We will not address these issues because defendant’s guilt depends upon the People proving that defendant had the requisite intent for the crime of attempted murder, which was erroneously defined in the trial court’s instruction to the jury. Therefore, because we find this instruction to be reversible error, it is not necessary for us to continue any further.

For the foregoing reasons, we reverse defendant’s conviction and remand this cause for a new trial before a properly instructed jury

Reversed and remanded.

JIGANTI and LINN, JJ, concur.