The opinion
PRESIDING JUSTICE BARRY, dissenting:
The majority acknowledges that factually this case is virtually identical to Visioni v. Industrial Comm’n (1942), 379 Ill. 608 , 42 N.E.2d 64 , but purports to give overriding significance to the fact that the statutory scheme then in effect is not what it now is. I respectfully disagree with the reasoning as well as the majority’s result. I would hold, consistent with Visioni and the modern trend to liberalize jurisdictional requirements (see, e.g., Barry v. Industrial Comm’n (1973), 55 Ill. 2d 274 , 302 N.E.2d 277 ; Chadwick v. Industrial Comm’n (1987), 154 Ill. App. 3d 859 , 507 N.E.2d 878 ; Sprinkman & Sons Corp. v. Industrial Comm’n (1987), 160 Ill. App. 3d 599 , 513 N.E.2d 1188 ; Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1) (as revised by Pub. Act 84— 981, effective Sept. 25, 1985, to allow for affidavit of attorney to substitute for a receipt proving payment of probable costs to Commission)), that petitioner’s bona fide efforts to comply-with the letter of the Workers’ Compensation Act constitute substantial compliance with sections 19 and 20 of the statute sufficient to confer jurisdiction on the circuit court.
Because this is a section 20 case and petitioner had to proceed pro se to pursue her appeal, she understandably relied upon the advice and judgment of whoever in the office of the Industrial Commission accepted her July 1 handwritten request for waiver of costs and completed her notice of motion setting the hearing for July 10. Since it is apparent from this record that no commissioner was available to hear her motion before the expiration of the 20-day period for commencing action to review the Commission’s decision (section 19(f)(1)), petitioner was referred to the office of the clerk of the Cook County circuit court, where she obtained a form entitled “Application to Sue or Defend as a Poor Person.”
Then, on July 3 (still within the 20-day period) and, apparently again on the advice of personnel in the Commission’s office, petitioner took her previously filed, handwritten request and notice of motion, together with the completed and notorized application form, to the office of the clerk of the Cook County circuit court. There, she refiled the documents, and Judge Lester Foreman granted the application the same day. Summons issued, and a certificate of mailing was filed by the clerk, and all of the documents filed that day in the circuit court were stamped “no fee” “pauper plaintiff.”
Given these unique circumstances, it is little wonder that the pro se petitioner failed to appear before the Commission on July 10 for a hearing on her section 20 motion. To all appearances, petitioner had satisfied the appropriate jurisdiction of her then financial situation based on her notorized affidavit timely filed and approved by the circuit court on July 3. There was absolutely no notice given at that point that petitioner would be required to present further proof of her status as a poor person in order to proceed with her request for review in the circuit court.
In my opinion, the pro se petitioner should not be faulted for proceeding as she did. Her good faith is further exemplified by her compliance with the Commission’s belated order denying the section 20 motion and requiring that probable costs be paid. The fact that petitioner produced the $35 on August 19 in no way detracts from her position that she qualified as a poor person for purposes of appealing her cause to the circuit court on July 1. Even poor persons are allowed to own or borrow $35 in cash.
An analogous situation was recently presented in Wilson v. Regional Board of School Trustees (1989), 179 Ill. App. 3d 485 , 534 N.E.2d 690 , in the context of an appeal from an administrative school district annexation/detachment order. Because the county clerk issued a summons specifying that the school defendants had only 30 days to answer, instead of the statutorily authorized 35 days, the school defendants moved to dismiss the plaintiff homeowners’ petition for administrative review. The circuit court granted the motion, and plaintiffs appealed. The appellate court reversed. Justice Goldenhersh, writing for the court, offered concise reasoning which, in my opinion, merits repeating herein:
“It is well established that courts will ‘ “liberally construe a right to appeal so as to permit a case to be considered on its merits.” ’ (Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 403 , 451 N.E.2d 842 , 844 quoting Glaseo Electric Co. v. Department of Revenue (1981), 86 Ill. 2d 346, 351-52 , 427 N.E.2d 90, 93 .) That ‘right to review a final administrative decision is limited and circumscribed by the statute or statutes authorizing such review,’ and as such, a party seeking such review must do it in a timely manner, acting promptly and within the time prescribed by statute. Board of Education of North Boone Community Unit School District No. 200 v. Regional Board of School Trustees (1987), 156 Ill. App. 3d 504, 506 , 509 N.E.2d 132,134 .
The court will relax a mandatory requirement:
‘[W]hen a party has done all that he can to meet the statutory requirements, but there is failure to comply with the statute because of the action or inaction of a third person outside his control, [and] to deny him the right to pursue his administrative remedy would constitute a deprivation of due process.’ (City National Bank & Trust Co. v. Property Tax Appeal Board (1983), 97 Ill. 2d 378, 380 , 454 N.E.2d 652, 654 , citing Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422 , 71 L. Ed. 2d 265 , 102 S. Ct. 1148 .)” (Wilson, 179 Ill. App. 3d at 486-87 , 534 N.E.2d at 691 .)
As previously noted in this case, petitioner’s July 1 request to proceed as a poor person was not set to be heard until July 10, a date outside the 20-day period for issuing summonses. Procedural due process demands that the opportunity for a party to be heard must be made available within the statutory limitation period.
The majority’s attempt to distinguish this case from Visioni by the fact that the Commission, as opposed to the circuit court, failed to enter an order waiving fees rings hollow when it is manifest that this petitioner was shuttled from the office of the Commission over to the office of the circuit clerk because no commissioner was available to hear her section 20 motion before the expiration of the 20-day period.
Moreover, I find nothing in section 20 requiring a full hearing on a motion to proceed as a poor person. In my opinion, the record establishes that the Commission erred in denying the section 20 motion. It should have been allowed on the basis of the affidavit petitioner filed with the circuit court on July 3. Petitioner therein states that she owns no real estate and the value of her personal property does not exceed $1,500. To all appearances, this document was never considered by the Commission.
The trial court’s dismissal of the appeal for lack of subject-matter jurisdiction merely compounded the comedy of administrative and judicial errors for which this petitioner must now pay. The majority approves. This is not justice. Based on the precedent of Visioni, the administrative rule of liberal construction as recently reiterated in Wilson and the principle of substantial compliance with the Workers’ Compensation Act, I would reverse.