also dissenting:
Less than three months ago, this court awarded employee Pervis Daniels a new Industrial commission hearing because two of the commissioners who heard his claim were appointed unlawfully. Daniels v. Industrial Comm’n, 201 Ill. 2d 160 (2002). As the Daniels plurality explained:
“Where an administrative agency acts outside its specific statutory authority, as the Commission did when it appointed Kane and Reichart, it acts without jurisdiction. Its actions are void, a nullity from their inception. [Citation.] The appointment of Kane and Reichart therefore had no legal effect.” Daniels, 201 Ill. 2d at 165.1
As it turns out, those same two commissioners also sat on the panel that rendered the decision in today’s case. In its petition for rehearing, the employer in this case— Marion Community School District No. 2 — brings this fact to our attention and requests the identical relief that this court awarded employee Daniels — namely, an invalidation of the Commission’s decision and a new hearing before a lawfully constituted panel. This should not have been a controversial request, for our entire common law system is premised on the irreducible principle that identically situated litigants must be treated alike. Remarkably, however, the same court that awarded Daniels a new hearing has rejected the District’s request without comment.
What could possibly explain this court’s disparate treatment of identically situated litigants? The answer is found in Justice McMorrow’s special concurrence in Daniels. In that special concurrence, Justice McMorrow asserts that, although she agrees with the plurality’s conclusion Kane and Reichart were appointed unlawfully, “[t]he decisions in which they participated are not void.” Daniels, 201 Ill. 2d at 173 (McMorrow, J., specially concurring, joined by Freeman, J.) (modified upon denial of rehearing). Rather, because Kane and Reichart exercised the duties of office under the color of lawful appointment, “[t]he common law de facto officer doctrine operates to prevent invalidation of [their] decisions.” Daniels, 201 Ill. 2d at 173 (McMorrow, J., specially concurring, joined by Freeman, J.) (modified upon denial of rehearing). To this extent, the special concurrence echoes Justice Fitzgerald’s dissent. See Daniels, 201 Ill. 2d at 178-81 (Fitzgerald, J., dissenting). Unlike Justice Fitzgerald, however, the special concurrence then insists upon having it both ways. Indeed, after explaining why “the decisions rendered by Kane and Reichart may be afforded de facto validity,” the special concurrence U-turns and declares 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.” Daniels, 201 Ill. 2d at 175-76 (McMorrow, J., specially concurring, joined by Freeman, J.) (modified upon denial of rehearing).
So what, exactly, are the “equities” that compel vacating a perfectly valid order of the Illinois Industrial Commission in Daniels’ — and only Daniels’ — case? The special concurrence explains:
“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.” Daniels, 201 Ill. 2d at 176-77 (McMorrow, J., specially concurring, joined by Freeman, J.) (modified upon denial of rehearing).
Thus, despite concluding that the decisions rendered by Kane and Reichart are perfectly valid under the de facto officer doctrine, Justice McMorrow ultimately concludes that “[alpplying the de facto doctrine to the plaintiffs case at bar *** would *** run counter to a competing public interest — uncovering illegal appointment procedures, thereby ensuring that administrative agencies comply with the statutory mandates which govern them.” Daniels, 201 Ill. 2d at 175 (McMorrow, J., specially concurring, joined by Freeman, J.) (modified upon denial of rehearing).
This analysis is flawed in several respects. To begin with, according to the special concurrence, the interest that is served by “permitting Daniels, but no others, to have a new hearing” is the public’s interest in “having illegal actions uncovered, reported and addressed by the courts.” Daniels, 201 Ill. 2d at 176 (McMorrow, J., specially concurring, joined by Freeman, J.) (modified upon denial of rehearing). But how is the public served by an arbitrary suspension of the de facto officer doctrine in a single case? To be sure, in Daniels, this court “uncovered” and “reported” the illegality of Kane and Reichart’s appointments, but this court by no means “addressed” that illegality. Indeed, the denial of rehearing in today’s case confirms that this court emphatically refuses to address it. Other than Pervis Daniels, no member of the public will benefit from this court’s determination that Kane and Reichart were appointed unlawfully. From the public’s perspective, Kane and Reichart might as well have been appointed lawfully, because all of their decisions but one are valid and enforceable. Just ask the District.
That said, the empty appeal to the “public interest” is by no means the only flaw in the special concurrence’s analysis. Borrowing from the vocabulary of microeconomics, the special concurrence asserts that, by arbitrarily singling out Daniels for undeserved appellate relief, “the incentive to discover and pursue [unlawful office holding] is maintained.” Daniels, 201 Ill. 2d at 176 (McMorrow, J., specially concurring, joined by Freeman, J.) (modified upon denial of rehearing). But is it? The District, of course, endeavored to pursue unlawful office holding and had the door slammed in its face. And this reveals the flaw in the special concurrence’s theory of incentives. By dangling the prospect of undeserved appellate relief before the public, this court is inviting an indeterminate number of future litigants to pursue what, for all but one of them, will be an empty exercise. Consider the following hypothetical. The Chicago Tribune runs a story bearing the headline, “Governor’s appointment procedures called into question.” The very next day, and in direct response to the special concurrence’s invitation, 100 lawsuits are filed challenging the validity of the decisions rendered by the officers in question. Assuming the challenged decisions are de facto valid, only one of those litigants will receive undeserved relief. This means that 99 other litigants, all of whom invested a great deal of time, grief, and expense at the invitation of this court, will have done so in vain. Given this reality, the rational litigant would not file suit because, while bearing one hundred percent of the litigation’s costs, he or she would stand only a one percent chance of reaping the litigation’s benefit. Litigation is not a raffle, and appellate relief should not be a door prize.
For that matter, under the hypothetical facts set forth above, how will this court decide who the lucky recipient of undeserved appellate relief will be? Again, 100 lawsuits are filed on the same day. Presumably, those cases will take varying amounts of time to work their ways through the system. Will the door prize go to the first to have his or her challenge adjudicated by the trial court? Surely not, for this would punish litigants whose arguments are more complex or whose cases are assigned to backlogged courtrooms. The first case to be decided by appellate court? This presents the same inequities that arise in the trial court. The first petition for leave to appeal filed in this court? This is a possibility, but this court often passes on an issue several times before finally granting leave to appeal. The first petition for leave to appeal allowed by this court? Maybe, but again, what if the first petition allowed is not the first one filed? The answer, of course, is that there is no answer, because courts should not be in the business of singling out and conferring upon isolated litigants relief that the law clearly prohibits.
Finally, consider the additional incentives inspired by singling out Daniels for undeserved appellate relief. As the special concurrence concedes, Daniels’ challenge to Kane and Reichart’s authority was procedurally defaulted “because Daniels failed to challenge the validity of the appointments before the Board.” Daniels, 201 Ill. 2d at 177 (McMorrow, J., specially concurring, joined by Freeman, J.) (modified upon denial of rehearing). Even worse, as I pointed out in my Daniels dissent, Daniels also failed to challenge the validity of the appointments before the circuit court on administrative review. Daniels, 201 Ill. 2d at 182 (Thomas, J., dissenting, joined by Fitzgerald and Garman, JJ.). And if that were not enough, by the time Daniels got around to raising the issue in the appellate court, the factual basis for his claim arose not from the record on appeal but from an affidavit from Daniels’ counsel that was attached without leave of court as an appendix to Daniels’ appellate court brief. Daniels, 201 Ill. 2d at 182 (Thomas, J, dissenting, joined by Fitzgerald and Garman, JJ.). Thus, in singling out Daniels for unwarranted appellate relief, this court is rewarding Daniels not only for advancing a losing argument on appeal but also for procedurally defaulting that issue before two separate tribunals and for injecting into his case matters wholly outside the record. What type of incentive does this create?
The bottom line is that there are only two legitimate means of addressing the issue raised both by Daniels’ appeal and the District’s petition for rehearing. Either the decisions rendered by Kane and Reichart are de facto valid, in which case no one gets a new hearing, or those decisions are void, in which case everyone gets a new hearing. There is no middle ground, and in attempting to forge one, this court breaches its fundamental duty to ensure that the law is administered fairly and equally.
I would grant the District’s petition for rehearing.
JUSTICES FITZGERALD and GASMAN join in this dissent.
dissented in Daniels because I believed — and continue to believe — that Daniels waived consideration of whether Commissioners Kane and Reichart were lawfully appointed. See Daniels, 201 Ill. 2d at 182-86 (Thomas, J., dissenting, joined by Fitzgerald and Carman, JJ.).