dissenting:
I respectfully dissent. The majority’s disposition minimizes issues legitimately raised by claimant concerning the ability of Commissioner Madigan to serve. It characterizes the challenge to Commissioner Madigan as merely an argument that there was no “discussion” of the commissioner’s labor relations experience in the Senate or in Governor Ryan’s documents of appointment. However, the majority also granted claimant’s motion for leave to supplement the record on appeal and denied the motion to strike Madigan’s affidavit and the supplement filed by the employer. The majority claims that there is nothing in the record that suggests Madigan was not qualified to serve as a commissioner, but that claim ignores the supplemental filings granted in the same disposition. The majority disposition also represents the claimant’s argument as one of the procedures for appointment, noting that the power of appointment rests with the Governor. This is a distinction without a difference, since the real question is the qualification of Commissioner Madigan to serve. Since we are dealing with a creature of statute with limited authority, the ultimate question is whether its decision in this case was void.
Our supreme court addressed the appropriateness of raising such an issue, whether a Commissioner is qualified to serve, in Daniels v. Industrial Comm’n, 201 Ill. 2d 160, 775 N.E.2d 936 (2002). In Daniels, the circuit court confirmed the Commission’s reduction of an award. The first time claimant contended that the panel that rendered the Commission’s decision was illegally constituted was in the appellate court. The appellate court certified that the question warranted further review. Daniels, 201 Ill. 2d at 162, 775 N.E.2d at 938; 177 Ill. 2d R. 315(a). The supreme court reversed and remanded.
In Daniels, the panel that was eventually assigned the case had two vacancies due to commissioners leaving their posts; one to become the new chairman of the Commission and the other after a medical leave. The new chairman of the Commission appointed a succession of arbitrators to temporarily fill the positions. The court pointed put that the responsibility for appointing commissioners is vested in the Governor. Daniels, 201 Ill. 2d at 163, 775 N.E.2d at 938; 820 ILCS 305/13 (West 1994). The Governor may make appointments with the consent of the Senate and, if the Senate is in recess, the Governor is allowed to make temporary appointments until the Senate reconvenes. The court noted that the chairman has the authority to appoint arbitrators to serve as commissioners on a temporary basis, but that this is reserved for situations where the sitting commissioner remains in office but “ ‘is or will be unavailable to fulfill [his or her] responsibilities.’ ” Daniels, 201 Ill. 2d at 164, 775 N.E.2d at 939, quoting 820 ILCS 305/13 (West 1992). The positions were vacant not because the previous commissioners had become temporarily unavailable, but because they had permanently left the position. The court found that allowing the chairman to appoint new commissioners in such situations would invalidate the requirements of the Act and allow the chairman to pack the Commission with representatives favorable to his political interests. Daniels, 201 Ill. 2d at 164-65, 775 N.E.2d at 939.
The court stated that the Commission’s status as an administrative agency was central to the ability to review the case. Daniels, 201 Ill. 2d at 165, 775 N.E.2d at 939. The court noted that the Commission has no general or common law powers. The Commission is an administrative agency whose powers are only those conferred by the legislature. Daniels, 201 Ill. 2d at 165, 775 N.E.2d at 940. When an administrative agency acts outside its specific statutory authority, it acts without jurisdiction.
The court also found that the lack of power of the Commission to render a decision could be raised at any point:
“The qualifications of Kane and Reichart were not challenged prior to the appeal to the appellate court. That, however, is of no consequence. Because agency action for which there is no statutory authority is void, it is subject to attack at any time in any court, either directly or collaterally. Business & Professional People [for the Public Interest v. Illinois Commerce Comm’n], 136 Ill. 2d [192,] 243-44[, 555 N.E.2d 693, 716 (1989)]. Even if the parties themselves do not raise the question, courts have an independent duty to vacate and expunge void orders and thus may sua sponte declare an order void.” Daniels, 201 Ill. 2d at 165, 775 N.E.2d at 940, citing Siddens v. Industrial Comm’n, 304 Ill. App. 3d 506, 511, 711 N.E.2d 18, 21-22 (1999).
The Commission’s decision in this case may similarly be void. The resolution of this issue raises a question of fact. There appears to be no dispute that Madigan did not meet either of the first two possible criteria — he was neither a lawyer nor had he previously served as an arbitrator. The parties dispute whether Madigan had four years of professional labor relations experience. In his motion to supplement the record, claimant presents Madigan’s Senate resume and an Illinois Blue Book entry. Employer moved to strike the motion to supplement and, in the alternative, submitted an affidavit from Madigan.
The supplements raise a reasonable possibility that the order was void; however, the record on this issue does not appear to be fully developed. The supplemental motion reveals that claimant has a meritorious claim, but employer’s response indicates a material evidentiary conflict warranting an evidentiary hearing. See Tomm’s Redemption, Inc. v. Park, 333 Ill. App. 3d 1003, 1010, 777 N.E.2d 522, 528 (2002). There has been no evidentiary hearing on the issue. Similar to other instances in which jurisdiction is at issue, resolution of this matter requires an evidentiary hearing that can best be handled by the circuit court. See Viktron Ltd. Partnership v. Program Data, Inc., 326 Ill. App. 3d 111, 116, 759 N.E.2d 186, 192 (2001) (remand for evidentiary hearing needed to evaluate basis for personal jurisdiction over a nonresidential defendant); Gassman v. RGB Riverboat, 329 Ill. App. 3d 224, 227, 768 N.E.2d 831, 832 (2002) (remand for evidentiary hearing needed to determine whether party was a “seaman”). Therefore, this matter should be remanded to the circuit court for a factual determination of this issue. See Zeigler v. Industrial Comm’n, 51 Ill. 2d 137, 141-42, 281 N.E.2d 342, 344-45 (1972) (circuit court may consider evidence additional to what was presented to the Commission when determining whether the conduct of the action of the Commission was valid).
The remand of this case on this issue would preclude as premature a discussion of the other issues raised by claimant. This cause should be remanded to the circuit court for further proceedings on the issues related to Commissioner Madigan.
HOLDRIDGE, J., joins this dissent.