specially concurring:
This case began when Daniels filed an application for adjustment 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 the Industrial Commission reduced the arbitrator’s award and Daniels sought 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 the appellate court. There, for the first time, Daniels argued that the decision of the Industrial Commission was void because two members of the panel which considered and decided his case (Kane and Reichart) were appointed acting commissioners in violation of the Workers’ Compensation Act. In support of this contention, 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. The Industrial Commission, in response, filed with the appellate court an affidavit by Kathryn A. Kelley, chief legal counsel for the Industrial Commission, verifying the history of the designation of acting commissioners.
Based on all of the information submitted, the appellate court considered and rejected Daniels’ claim that Kane and Reichart had been improperly appointed and then affirmed the judgment of the circuit court. Two justices dissented, agreeing with Daniels that the appointments of Kane and Reichart were not made in accordance with statutory procedures, their appointments were invalid, and, thus, the Industrial Commission’s decision was rendered void. Upon denying Daniels’ petition for rehearing, three of the five appellate justices certified that the case presented a “substantial question which warrants consideration by the supreme court.” We granted Daniels’ petition for leave to appeal.1
Justice Thomas’ dissent lodges criticisms against this court for the court’s consideration of the certified question. The dissent contends that this court should not address the issue of first impression presented in this case, i.e., whether section 13 of the Workers’ Compensation Act (820 ILCS 305/13 (West 1992)) authorizes the chairman to designate a certified arbitrator to serve as an acting commissioner when a permanent vacancy occurs in the office of the commissioner or whether that vacancy must be filled by the Governor. In the dissent’s view, this court need not examine the statutory provision to determine the proper method for appointing commissioners because the question of whether the panel of commissioners was validly constituted is not properly before this court. The dissent believes this issue is procedurally defaulted or “waived,” based on the fact that Daniels first challenged the Commission’s validity in the appellate court. The dissent states, “I am genuinely troubled by the fact that the court inflicts such a broadside in the obvious absence of jurisdiction over this case.” (Emphasis added.) 201 Ill. 2d at 181 (Thomas, J., dissenting, joined by Fitzgerald and Carman, JJ.). Thus, the dissenting justices believe that the alleged procedural default or “waiver” not only makes it unnecessary to consider the matter, it deprives this court of jurisdiction to consider whether the Industrial Commission was validly constituted. Further, Justice Thomas, citing to Newkirk v. Bigard, 109 Ill. 2d 28 (1985), contends that this court need not address Daniels’ claim that the illegal appointment of commissioners rendered their decision void. According to the dissent, pursuant to Newkirk, we can summarily reject Daniels’ voidness argument because the case at bar presents a collateral attack on the judgment and nothing on the face of the order indicates that the Commission lacked jurisdiction over the parties, jurisdiction over the subject matter, or the inherent power to make or enter the particular order involved. 201 Ill. 2d at 182-84 (Thomas, J., dissenting, joined by Fitzgerald and Carman, JJ.).
Newkirk, however, does not support Justice Thomas’ position. In Newkirk, plaintiffs never sought administrative review of the mining board order at issue. Instead, two years after the order was entered, plaintiffs brought a declaratory judgment action, seeking to have the mining board’s order declared void ab initio because it did not contain certain provisions. We first examined the statute, which provided that integration orders “shall” contain election provisions and equitable alternatives. Newkirk, 109 Ill. 2d at 32-33. Then, after discussing the distinction between an action for judicial review and a collateral attack, this court held that the mining board’s failure to include the provisions in its order was error which made the order voidable, but not void. The fact that the order contained errors did not cause the agency to lose jurisdiction. 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’s decision. Although Daniels did not question the validity of the panel of commissioners when he appeared before that tribunal, he did so when the case was in the appellate court. Thus, while Daniels may have been untimely in raising the issue, that fact does not convert this case into a collateral proceeding.
More importantly, I point out that, in Newkirk, this court did not summarily dispose of the voidness argument. We found it necessary to examine the pertinent statutory provision to determine whether the mining board’s order contained error before deciding whether the order was void. It was only after we had examined the statute and found that the order contained error— the failure to include certain provisions and equitable alternatives — that we were able to determine that, because of the nature of the error, jurisdiction was unaffected. Having made that assessment, we were able to conclude that the error did not render the order void. Further, in that case, because the order was being attacked collaterally, no remedy was available.
I believe that this court is similarly bound, in the present case, to examine the pertinent statutory provisions to determine whether, as Daniels contends, two of the commissioners on his panel were illegally appointed. The Industrial Commission is an administrative body created by legislative enactment, which can only enter such orders as are within its statutorily granted powers. See Michelson v. Industrial Comm’n, 375 Ill. 462 (1941); Central Illinois Public Service Co. v. Pollution Control Board, 36 Ill. App. 3d 397 (1976) (it is a commanding tenet of administrative law that an administrative agency and its officers may exercise only those powers conferred upon them by statute). Daniels is arguing that, because two of the commissioners who reviewed his claim were not appointed in conformity with the statute, the “Commission” which reviewed his claim did not legally exist and, therefore, it had no inherent power to act and could exercise no personal or subject matter jurisdiction over him. Lacking jurisdiction, the decisions rendered by the Commission would be void.
It is true that, as a general proposition, issues not raised before an administrative agency will be deemed “waived” for purposes of review. Voidness, however, is a fundamental defect that cannot be waived by a failure to object. Whether there is a lack of jurisdiction which renders a judgment void is a matter which can be raised at any time (City of Chicago v. Fair Employment Practices Comm’n, 65 Ill. 2d 108, 112 (1976)), either on direct review or collaterally, as in Newkirk. Thus, Daniels’ argument that the Industrial Commission’s decision is void must be addressed. Here, as in Newkirk, it is only after this court determines whether the appointments constituted error that this court can consider whether the error is serious enough to constitute a jurisdictional defect. In other words, this court can make no reasoned decision on Daniels’ voidness claim unless this court first determines whether there was error in the appointment procedures followed and whether the error was of such a nature that it affected the Commission’s jurisdiction.
Finally, even if there were a reasoned means to summarily dispose 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 his case was illegally constituted. The fact that Daniels’ attack on the validity of the commissioners’ appointments may have been untimely and, thus, subject to procedural default does not mean that this court is without jurisdiction to consider the matter. The general rule that issues or defenses not raised before an administrative agency will be deemed waived and will not be considered for the first time on administrative review is an admonition to the parties, not a limitation on the court’s jurisdiction. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 278-79 (1998). It has long been recognized that the waiver rule may be relaxed in order to maintain a uniform body of precedent or may be relaxed where the interests of justice so require. 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 rigid or inflexible one, and, where injustice might otherwise result, a reviewing court may consider questions of law not passed upon by an 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 the Commission’s ruling, Daniels called into question the legitimacy of the appointment procedures being followed by that administrative body. The matter presented a question of statutory construction — a legal question— which could readily be answered by a reviewing court. Moreover, a decision on whether the appointment procedures were in conformance with statutory requirements is a matter of significant importance. As Chief Justice Harrison notes in his plurality opinion, if commissioners are not appointed in conformity with the statute, there exists the potential for undermining “the balance of interests contemplated by the Act.” 201 Ill. 2d at 165. Under these circumstances, I believe the interests of justice require that the matter be addressed.
Turning now to the merits, I fully concur with Chief Justice Harrison’s interpretation of the Worker’s Compensation Act.2 I agree that the statute, properly construed, mandates a finding that two of the three commissioners who sat on the panel reviewing Daniels’ case (Kane and Reichart) were not appointed in conformity with statutory requirements. However, I do not agree with Chief Justice Harrison as to the consequences which must follow from this conclusion. Although the chairman of the Industrial Commission did not have the statutory authority to appoint Kane and Reichart to “permanent” vacancies on the Commission, Kane and Reichart were appointed to the office of commissioner and exercised the duties of the office under color of law. The decisions in which they participated are not void. The common law de facto officer doctrine operates to prevent invalidation of those decisions. See People ex rel. Hicks v. Lycan, 314 Ill. 590, 593 (1924) (“Whether the board of review was legally constituted or not, the persons acting as such board members were performing the duties of the board with apparent right under color of office, and their acts were valid as to the public and persons having an interest in them”). In this respect, I agree with Justice Fitzgerald’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 court in People ex rel. Rusch v. Wortman, 334 Ill. 298, 301 (1928), is as follows:
“An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised *** under color of a known election or appointment [which was] void because the officer was not eligible or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public.”
Although the common law de facto officer doctrine has its roots in antiquity, it has retained its vitality through the years because of its practicality. See In re Fichner, 144 N.J. 459, 677 A.2d 201 (1996); K. Clokey, Note, The De Facto Officer Doctrine: The Case for Continued Application, 85 Colum. L. Rev. 1121 (1985). The United States Supreme Court in Ryder v. United States, 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 § 578, at 1080-81 (1984), states:
“ ‘The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.’ ”
Pursuant to the de facto officer doctrine, a litigant may be prevented from contesting the legality of the acts of an officer by calling into question the validity of the officer’s title to office. This doctrine, however, like any other equitable doctrine, must not be applied mechanically. As noted in Glidden Co. v. Zdanok, 370 U.S. 530, 535-36, 8 L. Ed. 2d 671, 678-79, 82 S. Ct. 1459, 1465 (1962), “[t]he rule does not obtain, of course, when the alleged defect of authority operates also as a limitation on this Court’s appellate jurisdiction *** [or] when the statute claimed to restrict authority is not merely technical but embodies a strong policy concerning the proper administration of judicial business, [so that] this Court has treated the alleged defect as ‘jurisdictional’ and agreed to consider it on direct review even though not raised at the earliest practicable opportunity *** [or] when the challenge is based upon nonfrivolous constitutional grounds.” It also has been held that the de facto officer doctrine should not be invoked when an officer’s appointment is in violation of a statute and the officer lacks certain qualifications which were statutorily-required for the benefit and protection of the individual subject to the officer’s authority. See, e.g., United States v. Beltran, 306 F. Supp. 385 (N.D. Cal. 1969) (statutory requirement that draft status be determined by “neighbors” was held sufficiently important to allow draft resister to challenge qualifications of draft board members).
In the present case, the error in the composition of the panel of commissioners who reviewed Daniels’ claim stemmed from a statutory, not a constitutional, violation. Moreover, it has never been alleged that the commissioners who were not validly appointed were otherwise unqualified to hold their positions. Nor has it been claimed that these commissioners’ appointments were the result of malfeasance or a deliberate attempt to subvert the goals of the Act. Kane and Reichart exercised the duties of their office under color of lawful appointment, which only now has been found to be defective. For this reason, I would hold that the decisions rendered by Kane and Reichart may be afforded de facto validity. Applying the de facto officer doctrine to uphold the many decisions of the duly-appointed commissioners, despite defects in their appointments, serves the public’s interest in promoting the orderly functioning of the Commission. See Ryder v. United States, 515 U.S. 177, 180-81, 132 L. Ed. 2d 136, 142, 115 S. Ct. 2031, 2034 (1995).
Applying the de facto doctrine to the plaintiffs case at bar, however, would, in my view, run counter to a competing public interest — uncovering illegal appointment procedures, thereby ensuring that administrative agencies comply with the statutory mandates which govern them. Accordingly, I believe that the equities, on balance, militate against application of the de facto officer doctrine in the case at bar, to deny Daniels review by a properly constituted panel of commissioners.
If it were the established law of this state that the de facto officer doctrine always applied to validate all decisions of the Commission, there would be little or no incentive for claimants, such as Daniels, to bring illegalities in the appointment of commissioners before the judiciary for review. Claimants would have no reason to bring irregularities, such as those in the case- at bar, to the attention of the courts if it were the rule that they could never obtain relief. In my view, the de facto officer doctrine should not be employed in such a way that it forecloses judicial review of matters, such as irregularities in appointment procedures, when brought to the attention of the judiciary as a matter of first impression. The public clearly has an interest in having illegal actions uncovered, reported and addressed by the courts. Therefore, it is not in the public’s interest to implement a rule of equity so broadly that it eliminates the incentive to bring illegal actions to light.
The position I take in this opinion — permitting Daniels, but no others, to have a new hearing — strikes an equitable balance between the identified competing interests. By permitting the claimant who brought the illegal appointments to light to receive a new hearing, the incentive to discover and pursue such illegality is maintained. Once the matter has been litigated and decided by the courts, however, the public interest in uncovering and addressing illegality is served. At that juncture, the public interest in preserving the validity of a large multitude of commission decisions takes precedence. Public policy and competing public interests often require courts to draw equitable lines. That line is best drawn in this case by permitting Daniels a new hearing, but by applying the de facto officer doctrine to maintain the validity of the decisions rendered by the illegally composed commission in other cases. This is precisely the result that was reached by the New Jersey Supreme Court in In re Fichner, 144 N.J. 459, 677 A.2d 201 (1996).
In Fichner, the respondent appealed after he was sanctioned by the Board of Examiners of Master Plumbers. Eighteen months after the appeal was filed, respondent moved to amend the appeal to add a claim that the board was illegally constituted because three members of the seven-member board, though duly appointed, lacked certain qualifications. The appellate court refused to apply the de facto officer doctrine and examined the qualifications of the board members. Finding that three members were ineligible, the appellate court remanded for a new hearing. The New Jersey Supreme Court, however, concluded that the board’s decisions were valid by application of the de facto officer doctrine, yet “was satisfied” to let the appellate court’s disposition stand. In re Fichner, 144 N.J. at 471, 677 A.2d at 207. The supreme court stated:
“We believe that a remand for reconsideration of the matter by a properly composed board will serve the interests of the public and the licensee in this case.” In re Fichner, 144 N.J. at 471, 677 A.2d at 207.
Here, too, I am persuaded that, under the particular circumstances of this case, Daniels should be granted a remand so that a properly constituted panel of commissioners can review the arbitrator’s award on his workers’ compensation claim.
In sum, I find that Daniels’ claim that the improper appointment of Commissioners Kane and Reichart rendered the Commission’s decision void in this case is a matter properly addressed by this court. Although there was a procedural default because Daniels failed to challenge the validity of the appointments before the Board, the claim of voidness, like a claim of plain error, had to be examined substantively before it could be disposed of. Having examined the statute, I find, like Chief Justice Harrison, that the Chairman of the Industrial Commission did not have the authority to appoint commissioners to fill “permanent” vacancies. For this reason, the appointments of Kane and Reichart were not valid.
Nevertheless, faced with the possibility of upheaval — of invalidating the hundreds of decisions rendered by the illegally constituted panel — I would opt to preserve the integrity of those decisions. The invalid appointments of Kane and Reichart did not render void every decision of the Commission in which Kane and Reichart participated. Kane and Reichart were appointed under color of law and, according to the common law de facto officer doctrine, their decisions are given de facto validity.
At the same time, I believe providing Daniels with an opportunity to have his worker’s compensation award reviewed by a properly constituted panel of commissioners promotes the public’s interest in having illegalities brought to the court’s attention for review. This court would not be ruling favorably or unfavorably on the merits of Daniels’ claim, but merely be providing him with a hearing on his substantive claim. Again, I emphasize that I reach this conclusion, not for the court to show favoritism to Daniels, but because granting him a hearing before a duly constituted panel best serves the public interests. For this reason, I join Chief Justice Harrison in concluding that this matter should be reversed and remanded for further proceedings.
JUSTICE FREEMAN joins in this special concurrence.
In a brief submitted to this court, the Industrial Commission sets forth a detailed factual statement concerning the composition of the Industrial Commission and appointment procedures followed. The Industrial Commission does not contest in this court the propriety of considering the supplemental evidence submitted by affidavit. Rather, citing to this court’s decision in Ziegler v. Industrial Comm’n, 51 Ill. 2d 137, 142 (1972), the Commission states in its brief that the affidavits “were presented to the appellate court *** on the grounds that additional information may be provided to the court to aid in determining whether or not the acts of the Commission and Chairman were authorized.”
It should be emphasized that four members of this court, Chief Justice Harrison, Justice Freeman, Justice Kilbride and I, agree with the Chief Justice’s interpretation of the Workers’ Compensation Act. Thus, there is a binding opinion of the court on this issue.