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Docket No. 90318-Agenda 23-May 2001.

PERVIS DANIELS, Appellant, v. THE INDUSTRIAL
COMMISSION et al. (Archibald Candy Company, Appellee).

Claimant, Pervis Daniels, filed an application for adjustmentof claim pursuant to the Workers' Compensation Act (Act) (820ILCS 305/1 et seq. (West 1992)), alleging that while in the employof respondent, Archibald Candy Company, he injured his backwhile lifting a kiln. An arbitrator awarded claimant $593.11 perweek in temporary total disability (TTD) benefits for a period of57 6/7 weeks (see 820 ILCS 305/8(b) (West 1992)), $7,828.25 inmedical expenses (see 820 ILCS 305/8(a) (West 1992)), andadditional compensation pursuant to sections 16, 19(k), and 19(l)of the Act (see 820 ILCS 305/16, 19(k), (l) (West 1992)). Onreview, the Industrial Commission (Commission) determined thatclaimant was entitled to TTD benefits for a period of only 14 5/7weeks. The Commission also vacated the awards of additionalcompensation and medical expenses. The circuit court of CookCounty confirmed the Commission's decision.

Daniels then appealed to the Industrial Commission divisionof the appellate court, contending that the Commission's decisionwas void because the panel that rendered it was illegallyconstituted. Daniels also argued, in the alternative, that theCommission's findings as to causal connection, TTD benefits,medical expenses and additional compensation were against themanifest weight of the evidence. The appellate court rejected bothof Daniels' arguments and affirmed the judgment of the circuitcourt over the dissent of two judges. 315 Ill. App. 3d 580. Threeof the five members of the appellate court panel which heard thecase subsequently certified that it involved a substantial questionwarranting review by this court. We then granted Daniels' petitionfor leave to appeal. See 177 Ill. 2d R. 315(a). For the reasons thatfollow, we now reverse and remand.

When Archibald Candy, Daniels' employer, sought review ofthe arbitrator's award by the Commission, the case was assignedto panel "B," consisting of Commissioners John Hallock, Jr.,Barry Ketter and Linzey Jones. Before the matter was heard anddecided, however, Commissioner Hallock was elevated to the postof acting Commission chairman, then Commission chairman, andCommissioner Jones resigned following a medical leave ofabsence.

The promotion of Hallock and the resignation of Jones lefttwo vacancies in the office of commissioner. Under section 13 ofthe Act (820 ILCS 305/13 (West 1992)), responsibility forappointing commissioners and for filling vacancies in the office ofcommissioner is vested in the Governor "by and with the consentof the Senate." Where the vacancy occurs while the Senate is inrecess, the Governor is empowered to make a temporaryappointment until the next meeting of the Senate, at which time heis to nominate some person to fill the position. 820 ILCS 305/13(West 1992).

Those procedures were not followed here. The Governorneither appointed nor nominated replacements for Hallock andJones as specified in the Act. Instead, Hallock, in his capacity asthe new Commission chairman, appointed a succession ofarbitrators to temporarily fill his old Commission post and to fillthe post formerly occupied by Jones. Arbitrator Kathleen Hagantook Hallock's post on panel "B," serving as acting commissionerduring the initial six-month period following his promotion.Arbitrator David Kane then succeeded her as acting commissionerduring the subsequent six-month period.

When Commissioner Jones first went on medical leave andthen resigned his office, the chairman designated arbitrator CalvinTansor to serve as acting commissioner on panel "B" in his place.Tansor served for six months and was then replaced by arbitratorJoseph Reichart, who was designated to serve as actingcommissioner for the following six-month period.

There is authority under section 13 of the Act (820 ILCS305/13 (West 1992)) for the chairman to designate an arbitrator toserve as an acting commissioner for up to six months, but thatauthority is reserved for situations where the sitting commissionerremains in office but "is or will be unavailable to fulfill [his orher] responsibilities." Accordingly, it was inapplicable to theappointments of Hagan and Kane, because Hallock, thecommissioner in whose stead they were appointed, was never"unable to fulfill the responsibilities of his *** office." He vacatedhis office completely upon being named acting chairman and thenchairman.

Section 13 did apply to the designation of Calvin Tansor toserve for Linzey Jones because Jones' initial absence from workwas due to a medical leave. Once Jones resigned, however, hispost became vacant too. Since he was now out of office, ratherthan being temporarily "unavailable" to work, his responsibilitiescould no longer be performed by an arbitrator acting in his place.Tansor's authority to serve as acting commissioner came to anend, and the chairman had no power to designate Reichart as asuccessor acting commissioner. Instead, it was up to the Governorto appoint a replacement for Jones by and with the consent of theSenate.

Such a conclusion is the only one consistent with the purposesof the Act. The law is carefully designed to insure that theIndustrial Commission represents a balance of interests. Under thelaw the Governor is required to make his appointments to theCommission in such a way that two members represent employers,two represent employees, and three are representative of citizens"not identified with either the employing or employee classes."820 ILCS 305/13 (West 1992). In addition, not more than four ofthe members may be of the same political party. Arbitratorsdesignated to serve as acting commissioners are not subject to thispartisanship restriction and are deemed to be representative ofcitizens "not identified with either the employing or employeeclasses." 820 ILCS 305/13 (West 1992). Accordingly, if arbitratorscould be designated as acting commissioners even after thecommissioners whose workload they were handling left office,there would be no mechanism to insure that the balance ofinterests contemplated by the Act would be preserved. Throughcontrived designations and inaction by the Governor, the departurefrom office of sitting commissioners could be exploited to packthe Commission with members of the Governor's political partyor representatives of whatever economic class the Governorfavored. Such a result would be directly contrary to the Act'sobjectives.

The present case was reviewed by the Commission during atime when arbitrators Reichart and Kane were both serving asacting commissioners on panel "B" through appointment by thechairman. Their votes were necessary to the decision in this case.The question we must therefore now address is what effect theabsence of statutory authority for Kane's and Reichart'sappointments had on the validity of their decision.

Central to resolution of that question is the IndustrialCommission's status as an administrative agency. Because it is anadministrative agency, the Commission has no general or commonlaw powers. The only powers it possesses are those granted to it bythe legislature. Any action it takes must be specifically authorizedby statute. Business & Professional People for the Public Interestv. Illinois Commerce Comm'n, 136 Ill. 2d 192, 243-44 (1989).

Where an administrative agency acts outside its specificstatutory authority, as the Commission did when it appointed Kaneand Reichart, it acts without jurisdiction. Its actions are void, anullity from their inception. See Siddens v. Industrial Comm'n,304 Ill. App. 3d 506, 510-11 (1999). The appointment of Kane andReichart therefore had no legal effect.

Our appellate court recently considered a similar situation inGilchrist v. Human Rights Comm'n, 312 Ill. App. 3d 597 (2000).In Gilchrist, the Commission rendered a decision based on therecommended order and decision of an administrative law judge.On reviewing the record, the appellate court discovered that theadministrative law judge who had authored the recommendedorder and decision had not presided over the public hearing, as theIllinois Human Rights Act required. Because that administrativelaw judge had not presided, the Commission had no statutoryauthority to assign him to the case. Because his assignmentexceeded the Commission's authority, the decision based on hisrecommended order and decision was likewise unauthorized. Thecourt therefore declared it to be void.

The qualifications of Kane and Reichart were not challengedprior to the appeal to the appellate court. That, however, is of noconsequence. Because agency action for which there is nostatutory authority is void, it is subject to attack at any time in anycourt, either directly or collaterally. Business & ProfessionalPeople, 136 Ill. 2d at 243-44. Even if the parties themselves do notraise the question, courts have an independent duty to vacate andexpunge void orders and thus may sua sponte declare an ordervoid. See Siddens, 304 Ill. App. 3d at 511. That is precisely whatoccurred in Gilchrist.

Finally, we reject the Commission's claim that the decision inthis case can be validated on the grounds that Kane and Reichartwere de facto officers. The doctrine recognizing de facto publicofficers prevents third parties or members of the public fromraising collateral challenges to a public officer's qualifications tohold office if considerations of public policy require the officer'sacts to be considered valid. See People ex rel. Rusch v. Wortman,334 Ill. 298, 301-02 (1928). No considerations of public policymilitate in favor of preventing workers' compensation claimantsfrom challenging the legal status of the commissioners who passedon their claims where, as here, the challenge is raised on directreview of the workers' compensation award and thecommissioners were appointed in a manner that threatens theAct's basic objectives.

For the foregoing reasons, the decision of the Commission atissue in this case is vacated, the judgments of the appellate andcircuit courts are reversed, and the cause is remanded to theCommission for a decision by a legally constituted panel.

Reversed and remanded.

JUSTICE McMORROW, specially concurring:

This case began when Daniels filed an application foradjustment of claim pursuant to the Workers' Compensation Act.820 ILCS 305/19 (West 1992). An arbitrator issued a decision,awarding certain benefits to Daniels. A three-member panel of theIndustrial Commission reduced the arbitrator's award and Danielssought administrative review in the circuit court of Cook County.After the circuit court confirmed the Commission's decision,appeal was taken to the Industrial Commission division of theappellate court. There, for the first time, Daniels argued that thedecision of the Industrial Commission was void because twomembers of the panel which considered and decided his case(Kane and Reichart) were appointed acting commissioners inviolation of the Workers' Compensation Act. In support of thiscontention, Daniels submitted to the appellate court an affidavit,signed by his attorney, attesting to the composition of panel "B"of the Industrial Commission, which reviewed his case. TheIndustrial Commission, in response, filed with the appellate courtan affidavit by Kathryn A. Kelley, chief legal counsel for theIndustrial Commission, verifying the history of the designation ofacting commissioners.

Based on all of the information submitted, the appellate courtconsidered and rejected Daniels' claim that Kane and Reichart hadbeen improperly appointed and then affirmed the judgment of thecircuit court. Two justices dissented, agreeing with Daniels thatthe appointments of Kane and Reichart were not made inaccordance with statutory procedures, their appointments wereinvalid, and, thus, the Industrial Commission's decision wasrendered void. Upon denying Daniels' petition for rehearing, threeof the five appellate justices certified that the case presented a"substantial question which warrants consideration by the supremecourt." We granted Daniels' petition for leave to appeal.⁽¹⁾

Justice Thomas' dissent lodges criticisms against this courtfor the court's consideration of the certified question. The dissentcontends that this court should not address the issue of firstimpression presented in this case, i.e., whether section 13 of theWorkers' Compensation Act (820 ILCS 305/13 (West 1992))authorizes the chairman to designate a certified arbitrator to serveas an acting commissioner when a permanent vacancy occurs inthe office of the commissioner or whether that vacancy must befilled by the Governor. In the dissent's view, this court need notexamine the statutory provision to determine the proper methodfor appointing commissioners because the question of whether thepanel of commissioners was validly constituted is not properlybefore this court. The dissent believes this issue is procedurallydefaulted or "waived," based on the fact that Daniels firstchallenged the Commission's validity in the appellate court. Thedissent states, "I am genuinely troubled by the fact that the courtinflicts such a broadside in the obvious absence of jurisdictionover this case." (Emphasis added.) Slip op. at 16 (Thomas, J.,dissenting, joined by Fitzgerald and Garman, JJ.). Thus, thedissenting justices believe that the alleged procedural default or"waiver" not only makes it unnecessary to consider the matter, itdeprives this court of jurisdiction to consider whether theIndustrial Commission was validly constituted. Further, JusticeThomas, citing to Newkirk v. Bigard, 109 Ill. 2d 28 (1985),contends that this court need not address Daniels' claim that theillegal appointment of commissioners rendered their decision void.According to the dissent, pursuant to Newkirk, we can summarilyreject Daniels' voidness argument because the case at bar presents a collateral attack on the judgment and nothing on the face of theorder indicates that the Commission lacked jurisdiction over theparties, jurisdiction over the subject matter, or the inherent powerto make or enter the particular order involved. Slip op. at 18(Thomas, J., dissenting, joined by Fitzgerald and Garman, JJ.).

Newkirk, however, does not support Justice Thomas' position.In Newkirk, plaintiffs never sought administrative review of themining board order at issue. Instead, two years after the order wasentered, plaintiffs brought a declaratory judgment action, seekingto have the mining board's order declared void ab initio becauseit did not contain certain provisions. We first examined the statute,which provided that integration orders "shall" contain electionprovisions and equitable alternatives. Newkirk, 109 Ill. 2d at 32-33. Then, after discussing the distinction between an action forjudicial review and a collateral attack, this court held that themining board's failure to include the provisions in its order waserror which made the order voidable, but not void. The fact thatthe order contained errors did not cause the agency to losejurisdiction. Newkirk, 109 Ill. 2d at 37.

I note that, in the present case, unlike the situation in Newkirk,Daniels is seeking judicial review of an Industrial Commission'sdecision. Although Daniels did not question the validity of thepanel of commissioners when he appeared before that tribunal, hedid so when the case was in the appellate court. Thus, whileDaniels may have been untimely in raising the issue, that fact doesnot convert this case into a collateral proceeding.

More importantly, I point out that, in Newkirk, this court didnot summarily dispose of the voidness argument. We found itnecessary to examine the pertinent statutory provision to determinewhether the mining board's order contained error before decidingwhether the order was void. It was only after we had examined thestatute and found that the order contained error-the failure toinclude certain provisions and equitable alternatives-that we wereable to determine that, because of the nature of the error,jurisdiction was unaffected. Having made that assessment, wewere able to conclude that the error did not render the order void.Further, in that case, because the order was being attackedcollaterally, no remedy was available.

I believe that this court is similarly bound, in the present case,to examine the pertinent statutory provisions to determinewhether, as Daniels contends, two of the commissioners on hispanel were illegally appointed. The Industrial Commission is anadministrative body created by legislative enactment, which canonly enter such orders as are within its statutorily granted powers.See Michelson v. Industrial Comm'n, 375 Ill. 462 (1941); CentralIllinois Public Service Co. v. Pollution Control Board, 36 Ill. App.3d 397 (1976) (it is a commanding tenet of administrative law thatan administrative agency and its officers may exercise only thosepowers conferred upon them by statute). Daniels is arguing that,because two of the commissioners who reviewed his claim werenot appointed in conformity with the statute, the "Commission"which reviewed his claim did not legally exist and, therefore, ithad no inherent power to act and could exercise no personal orsubject matter jurisdiction over him. Lacking jurisdiction, thedecisions rendered by the Commission would be void.

It is true that, as a general proposition, issues not raised beforean administrative agency will be deemed "waived" for purposes ofreview. Voidness, however, is a fundamental defect that cannot bewaived by a failure to object. Whether there is a lack ofjurisdiction which renders a judgment void is a matter which canbe raised at any time (City of Chicago v. Fair EmploymentPractices Comm'n, 65 Ill. 2d 108, 112 (1976)), either on directreview or collaterally, as in Newkirk. Thus, Daniels' argument thatthe Industrial Commission's decision is void must be addressed.Here, as in Newkirk, it is only after this court determines whetherthe appointments constituted error that this court can considerwhether the error is serious enough to constitute a jurisdictionaldefect. In other words, this court can make no reasoned decisionon Daniels' voidness claim unless this court first determineswhether there was error in the appointment procedures followedand whether the error was of such a nature that it affected theCommission's jurisdiction.

Finally, even if there were a reasoned means to summarilydispose of Daniels' voidness argument, procedural default or"waiver" would pose no barrier to our consideration of Daniels'claim that the Industrial Commission panel which reviewed hiscase was illegally constituted. The fact that Daniels' attack on thevalidity of the commissioners' appointments may have beenuntimely and, thus, subject to procedural default does not meanthat this court is without jurisdiction to consider the matter. Thegeneral rule that issues or defenses not raised before anadministrative agency will be deemed waived and will not beconsidered for the first time on administrative review is anadmonition to the parties, not a limitation on the court'sjurisdiction. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill.2d 262, 278-79 (1998). It has long been recognized that the waiverrule may be relaxed in order to maintain a uniform body ofprecedent or may be relaxed where the interests of justice sorequire. Hux v. Raben, 38 Ill. 2d 223 (1967); Caterpillar, Inc. v.Doherty, 299 Ill. App. 3d 338 (1998). As stated in Wadlington v.Mindes, 45 Ill. 2d 447, 453 (1970), the waiver rule "is not a rigidor inflexible one, and, where injustice might otherwise result, areviewing court may consider questions of law not passed upon byan administrative agency." See also American Federation of State,County & Municipal Employees, Council 31 v. County of Cook,145 Ill. 2d 475, 480 (1991).

Here, in the course of seeking judicial review of theCommission's ruling, Daniels called into question the legitimacyof the appointment procedures being followed by thatadministrative body. The matter presented a question of statutoryconstruction-a legal question-which could readily be answered bya reviewing court. Moreover, a decision on whether theappointment procedures were in conformance with statutoryrequirements is a matter of significant importance. As ChiefJustice Harrison notes in his plurality opinion, if commissionersare not appointed in conformity with the statute, there exists thepotential for undermining "the balance of interests contemplatedby the Act." See slip op. at 3. Under these circumstances, I believethe interests of justice require that the matter be addressed.

Turning now to the merits, I fully concur with Chief JusticeHarrison's interpretation of the Worker's Compensation Act.⁽²⁾ Iagree that the statute, properly construed, mandates a finding thattwo of the three commissioners who sat on the panel reviewingDaniels' case (Kane and Reichart) were not appointed inconformity with statutory requirements. However, I do not agreewith Chief Justice Harrison as to the consequences which mustfollow from this conclusion. Although the chairman of theIndustrial Commission did not have the statutory authority toappoint Kane and Reichart to "permanent" vacancies on theCommission, Kane and Reichart were appointed to the office ofcommissioner and exercised the duties of the office under color oflaw. The decisions in which they participated are not void. Thecommon law de facto officer doctrine operates to preventinvalidation of those decisions. See People ex rel. Hicks v. Lycan,314 Ill. 590, 593 (1924) ("Whether the board of review was legallyconstituted or not, the persons acting as such board members wereperforming the duties of the board with apparent right under colorof office, and their acts were valid as to the public and personshaving an interest in them"). In this respect, I agree with JusticeFitzgerald's separate dissent.

The definition of a de facto officer, set forth in State v.Carroll, 38 Conn. 449, 471-72 (1871), and adopted by this courtin People ex rel. Rusch v. Wortman, 334 Ill. 298, 301 (1928), is asfollows:

"An officer de facto is one whose acts, though not thoseof a lawful officer, the law, upon principles of policy andjustice, will hold valid so far as they involve the interestsof the public and third persons, where the duties of theoffice were exercised *** under color of a known electionor appointment [which was] void because the officer wasnot eligible or because there was a want of power in theelecting or appointing body, or by reason of some defector irregularity in its exercise, such ineligibility, want ofpower or defect being unknown to the public."

Although the common law de facto officer doctrine has itsroots in antiquity, it has retained its vitality through the yearsbecause of its practicality. See In re Fichner, 144 N.J. 459, 677A.2d 201 (1996); K. Clokey, Note, The De Facto OfficerDoctrine: The Case for Continued Application, 85 Colum. L. Rev.1121 (1985). The United States Supreme Court in Ryder v. UnitedStates, 515 U.S. 177, 180-81, 132 L. Ed. 2d 136, 142, 115 S. Ct.2031, 2034 (1995), quoting 63A. Am. Jur. 2d Public Officers &Employees