specially concurring in part and dissenting in part:
I agree that the complaint against Fred Haas, Sr., was properly dismissed by the trial court. However, I disagree with the majority holding that the Human Rights Commission exceeded the scope of its statutory authority rendering its order void as a matter of law and making it subject to collateral attack. Therefore, I respectfully dissent to that part of the majority’s opinion.
Subject matter jurisdiction refers to a tribunal’s authority to hear and determine causes of action of the general class to which the proceedings in question belong. See Ward, 395 Ill. at 360, 70 N.E.2d at 328. Pursuant to the Illinois Human Rights Act (775 ILCS 5/1— 101 et seq. (West 1996)), the Commission is authorized to hear and determine cases regarding alleged civil rights violations. It is a civil rights violation for an employer to discharge an employee on the basis of unlawful discrimination, which includes discrimination against an employee because of her marital status. 775 ILCS 5/2— 102(A), 1 — 103(J), (Q) (West 1996). Davis’ claim of employment discrimination based on marital status falls squarely within the general class of cases within the subject matter jurisdiction of the Commission. Applying the majority’s reasoning, subject matter jurisdiction would never be determinable at the outset of a case. Only after the Commission (or even the appellate court) hears the matter and concludes that the alleged civil rights violation falls within the purview of the Act would subject matter jurisdiction attach. Clearly, this result is not tenable.
The majority is incorrect when it states that Boaden “pronounced that the jurisdiction of the Commission does not encompass charges involving marital status discrimination based on the identity of one’s spouse.” 296 Ill. App. 3d at 374. The supreme court, in Boaden, did not hold that the Commission lacked subject matter jurisdiction and therefore rendered a void order. Rather, it found that the Commission interpreted the law erroneously and declined, on direct review, to defer to the Commission’s interpretation that the statutory definition of marital status encompasses policies based on the identity of one’s spouse. Boaden, 171 Ill. 2d at 239, 664 N.E.2d at 65.
The supreme court recently applied a similar line of reasoning to child support orders that express support payments as a percentage of income. The court held such orders to be voidable rather than void and that such orders cannot be challenged by collateral attack. In re Marriage of Mitchell, 181 Ill. 2d at 174. Although the court found that the judgment entered by the trial court was contrary to the plain language of the statute, it determined that the trial court possessed jurisdiction over the parties and the subject matter. A court may not lose jurisdiction merely because it makes a mistake in determining either the facts, the law or both. Mitchell, 181 Ill. 2d at 174-75. The same is true of the Commission. The supreme court, in Mitchell, noted the parties had the opportunity to fully litigate the issues when the original order was entered. Mitchell, 181 Ill. 2d at 175. Because Haas & Haas chose not to appeal the Commission’s order within the statutorily prescribed time period, it should not now be allowed to collaterally attack the Commission’s order at this late date.
Additionally, I believe the trial court exceeded its authority in considering the merit of the underlying claim. As noted by the majority, a petitioner cannot seek administrative review of a Commission order in the circuit court. See In re Schaefer, 173 Ill. App. 3d 862, 863, 527 N.E.2d 961, 963-64 (1988). The legislature specifically gave the power of judicial review of the Commission’s final orders to the appellate court (775 ILCS 5/8 — 111(A) (West 1996)) and merely vested the trial court with enforcement authority (775 ILCS 5/8 — 111(B) (West 1996)). In awarding summary judgment to Haas & Haas, the trial court improperly performed the function of judicial review.
For the foregoing reasons, I would find that the Commission’s order was not void. As such, the order should not be subject to collateral attack. I would also find that the trial court exceeded its statutory authority by improperly performing the function of judicial review in this case. Accordingly, I would reverse the circuit court’s entry of summary judgment.