also dissenting:
While the plurality purports to invalidate only “the decision of the Commission at issue in this case” (201 Ill. 2d at 167), the plurality in fact invalidates this and every other decision of the Commission in which Commissioners Kane and Reichart participated. Indeed, if, as the plurality insists, Commissioners Kane and Reichart were not lawfully appointed, the consequence of their unlawful appointments cannot, on any principled basis, be confined to this case. As sobering as I find the catastrophic sweep of today’s decision, I am genuinely troubled by the fact that the court inflicts such a broadside in the obvious absence of jurisdiction over this case. Faced with such gratuitous overreaching, I have no choice but to dissent.
Understandably, the plurality’s discussion of the procedural posture of this case is incomplete. After reading the plurality opinion, the uninformed reader might justifiably assume that the issue addressed by the plurality (i.e., whether Commissioners Kane and Reichart were lawfully appointed) was litigated below and properly preserved for review. In fact, nothing could be further from the truth. Daniels did not contest the appointments of Kane and Reichart before the Commission, and he did not contest their appointments on administrative review. Instead, Daniels waited until he was before the appellate ■ court to first raise the issue addressed in the plurality opinion. Even worse, the factual basis for Daniels’ claim is found not in the record on appeal but in an affidavit from Daniels’ counsel that was attached without leave of court as an appendix to Daniels’ appellate court brief.
Of course, it is well established that, in reviewing a decision of the Commission, a court may consider only the record and arguments that were before the Commission. Fitts v. Industrial Comm’n, 172 Ill. 2d 303, 308 (1996). Arguments raised for the first time on appeal are waived. Thomas v. Industrial Comm’n, 78 Ill. 2d 327, 336 (1980). Here, neither the Commission nor even the circuit court considered the legality of the acting commissioners’ appointments, as Daniels raised this issue for the first time in the appellate court. And the factual basis for that claim was never litigated and is found nowhere in the record on appeal. The issue therefore is waived, plain and simple.
But no. Eager to dismantle countless Commission decisions, the plurality ignores the obvious waiver in this case and simply proclaims every action taken by Commissioners Kane and Reichart “void.” 201 Ill. 2d at 165. What the plurality must have in mind is that, if they call the panel’s decision “void,” then that decision is open to collateral attack. See, e.g., Weingart v. Department of Labor, 122 Ill. 2d 1, 17-18 (1988). But this cannot be, as “a party cannot collaterally attack an agency order *** unless the order is void on its face as being unauthorized by statute.” (Emphasis added.) Newkirk v. Bigard, 109 Ill. 2d 28, 39 (1985); John O. Schofield, Inc. v. Nikkel, 314 Ill. App. 3d 771, 779-80 (2000). And while Daniels’ attack is surely collateral, nothing on the face of the Commission’s order renders it void.
On the distinction between a direct and collateral attack, this court has explained:
“A direct attack may be based upon infirmities in the judgment which render the judgment void as well as those defects which make it merely voidable. On the other hand, a collateral attack is limited to those defects which are of a character to render the judgment void on jurisdictional grounds. A direct attack on a judgment is a proceeding instituted for the very purpose of avoiding or correcting a judgment in some particular and is brought in the same action and in the same court. *** ‘The judgment of a court is collaterally assailed when it is sought to be impeached in an action other than that in which it was rendered.’ [Citations.] A direct attack may be made by motion or petition *** filed in the same cause in which the original judgment was entered.” (Emphases added.) City of Des Plaines v. Boeckenhauer, 383 Ill. 475, 480-81 (1943).
Similarly, this court has explained the distinction between a direct and collateral attack as follows:
“An application to vacate a judgment or decree, made to the court that rendered it within thirty days after its entry, is a direct attack upon the judgment or decree, but if made after the expiration of thirty days it is a collateral attack.” (Emphases added.) Barnard v. Michael, 392 Ill. 130, 135 (1945).
See also People v. O’Keefe, 18 Ill. 2d 386, 391 (1960).
Thus, under this court’s established precedent, a direct attack on a judgment is one that is brought (1) by motion or petition, (2) in the same court that rendered the judgment, (3) in the same cause in which the judgment was rendered, and (4) within 30 days after the judgment’s entry. All other attacks (i.e., attempts to vacate a judgment as void) are collateral. Here, the Commission entered its order on June 25, 1997. Daniels first attacked that order 632 days later on March 19, 1999, and he did so not before the Commission, which rendered the order, but in the appellate court. Clearly, under Newkirk, Barnard, and O’Keefe, Daniels’ attack is collateral.
The special concurrence posits that “while Daniels may have been untimely in raising the issue, that fact does not convert this case into a collateral proceeding.” 201 Ill. 2d at 170 (McMorrow, J., specially concurring, joined by Freeman, J.) No, it does not. This undeniably remains a direct appeal. But such untimeliness does render collateral Daniels’ attack on the judgment. What the special concurrence misses is that whether the Commission’s order is on direct review has nothing to do with whether an attack leveled against that judgment is direct or collateral. Again, a direct attack on a judgment is one that is brought (1) by motion or petition, (2) in the same court that rendered the judgment, (3) in the same cause in which the judgment was rendered, and (4) within 30 days after the judgment’s entry. All other attacks (i.e., attempts to vacate a judgment as void) are collateral. Thus, as this court defines it, a direct attack may be brought only before a direct appeal is taken. Once a direct appeal is taken, any new attack is, by definition, collateral. Admittedly, some confusion is bound to creep in whenever the same adjective precedes two distinct legal concepts. Nevertheless, “direct appeal” and “direct attack” remain distinct.3
Given that Daniels’ attack is collateral, that attack is permissible only if the Commission’s order is void on its face. Newkirk, 109 Ill. 2d at 39. An agency’s order is void if the agency lacks (1) jurisdiction over the parties, (2) jurisdiction over the subject matter, or (3) the inherent power to make or enter the particular order involved. Newkirk, 109 Ill. 2d at 36. Here, nothing on the face of the order renders the Commission’s decision void. On its face, the order poses no problems concerning personal jurisdiction, as both Daniels and Archibald participated freely and fully throughout the Commission proceedings. Likewise, on its face, the order poses no problems concerning subject matter jurisdiction, which this court defines as an agency’s power to “hear and determine causes of the general class of cases to which the particular case belongs.” Newkirk, 109 Ill. 2d at 36. The Commission’s subject matter jurisdiction includes the power to hear and determine all disputed questions arising under the Act (820 ILCS 305/18 (West 1998)), and the order is confined to such questions. Finally, on its face, the order is one that the Commission possesses the inherent power to enter. Indeed, the Commission’s order is confined to settling disputed questions specifically arising under the Act, including Daniels’ claims for temporary total disability benefits (820 ILCS 305/8(b) (West 1998)), medical expenses (820 ILCS 305/8(a) (West 1998)), attorney fees (820 ILCS 305/16 (West 1998)), penalties (820 ILCS 305/ 19(k) (West 1998)), and additional compensation (820 ILCS 305/19(1) (West 1998)). The Commission’s decision therefore is neither void on its face nor subject to collateral attack.
This conclusion is confirmed by the fact that the factual basis for Daniels’ collateral attack — i.e., the manner in which acting Commissioners Kane and Reichart were appointed — appears nowhere in the record on appeal, least of all on the face of the contested order. Again, Daniels’ entire argument before this court is based upon two affidavits, one from Daniels’ attorney that was attached to Daniels’ appellate court brief and one from the Commission’s attorney that was attached to the Commission’s appellate court brief. Yet Daniels concedes that neither he nor the Commission sought or received leave from the appellate court to supplement the record on appeal with these affidavits, and this court likewise extended no such leave. Given that Newkirk authorizes a collateral attack only where an agency order is void on its face, an obvious question arises: How can an order be void on its face where the “facts” that allegedly render the order void appear nowhere on the face of the order but only in unauthorized affidavits wholly outside the record? The answer — like the question — is obvious: such an order cannot be void on its face and therefore, under Newkirk, cannot be collaterally attacked.4
In conclusion, I note only that, unlike the appellate court, this court cannot issue nonprecedential orders under Supreme Court Rule 23 (166 Ill. 2d R. 23). On the contrary, every decision of this court establishes law for the State of Illinois. The tragedy of today’s decision is that, in an effort to do justice in this particular case, the plurality not only upsets countless decisions of the Industrial Commission but also turns appellate procedure on its head for all future cases.
I dissent.
JUSTICES FITZGERALD and GARMAN join in this dissent.
To its credit, the special concurrence draws the line at arguing that Daniels’ attack — which was raised for the first time in the appellate court some 632 days after entry of the Commission’s order — was in fact raised for the first time before the Commission and within 30 days of the order’s entry.
While the special concurrence insists that this court has the power — indeed, the duty — to consider whether Commissioners Kane and Reichart were properly appointed (201 Ill. 2d at 170-72 (McMorrow, J., specially concurring, joined by Freeman, J.)), the special concurrence nowhere explains how, on direct appeal, this court can consider factual matters that are wholly outside the record. Of course, the simple explanation for this oversight is that we can’t.