Dissenting Opinions Upon Denial of Rehearing
JUSTICE FITZGERALD,dissenting:
The Marion school district petitioned for rehearing in this case, arguing that, based on our decision in Daniels v. Industrial Comm’n, 201 Ill. 2d 160 (2002), it was entitled to a new Industrial Commission hearing because two of the commissioners that heard Baggett’s claim— Kane and Reichart — were unlawfully appointed. In Daniels, a plurality opinion rendered just six days after the opinion in this case, four members of this court agreed that the appointments of Commissioners Kane and Reichart did not comply with the provisions of the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 1992)), and remanded the matter for a new hearing before a properly constituted panel of commissioners.
In accordance with my dissent in Daniels, I remain firm in my belief that the de facto officer doctrine should apply to all of the decisions rendered by Commissioners Kane and Reichart, and should apply equally to the Daniels and Baggett cases. Under the de facto officer doctrine, the acts of Kane and Reichart as commissioners are valid. Daniels, 201 Ill. 2d at 179 (Fitzgerald, J., dissenting). However, based upon the fact that this court has chosen to give Daniels a new hearing due to the now-unlawful appointments of Kane and Reichart, I can see no reason why this court should not at least consider the argument of the Marion school district that it, too, is entitled to a new hearing on the same ground. Accordingly, like Justice Thomas, I would allow the Marion school district’s petition for rehearing.