Kaull v. Kaull

2014 IL App (2d) 130175

• Court: Appellate Court of Illinois
• Decided: December 22, 2014
• Docket: 2-13-0175
• Status: Unpublished

Opinion

2014 IL App (2d) 130175 No. 2-13-0175 Opinion filed December 22, 2014 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

MARY K. KAULL, as Trustee of the Barbara ) Appeal from the Circuit Court B. Kaull Trust u/a/d July 17, 2007, ) of Winnebago County. ) Petitioner-Appellee, ) ) v. ) No. 11-MR-594 ) SARAH KAULL, ) ) Respondent-Appellants ) ) (Mark James Kaull, Respondent-Appellant; ) Ryan Donald Schrader, a Minor, and ) Honorable Elida Ochoa, as Mother and Next Friend of ) Lisa R. Fabiano, Ryan Donald Schrader, Respondents). ) Judge, Presiding ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Spence concurred in the judgment and opinion.

OPINION

¶1 This action was brought by Mary K. Kaull (Mary), as the trustee of the Barbara B. Kaull

Trust, to identify beneficiaries of the trust. Respondent Mark James Kaull (Mark James) was

held in contempt of court for his refusal to submit a DNA sample, which the trial court ordered

pursuant to Illinois Supreme Court Rule 215 (eff. Mar. 28, 2011) in order to determine whether

respondent Ryan Donald Schrader (Ryan) and Mark James have the same biological father, Mark

Kaull. On appeal, Mark James argues that he acted in good faith in refusing to submit a DNA 2014 IL App (2d) 130175

sample on the grounds that: (1) Rule 215 is facially unconstitutional because it no longer requires

a showing of “good cause”; (2) section 9(a) of the Illinois Parentage Act of 1984 (Parentage Act)

(750 ILCS 45/9(a) (West 2010)) applies to this case to the exclusion of Rule 215; (3) inherited

characteristics are not “physical conditions” within the meaning of Rule 215; and (4) the motion

and the trial court’s order for DNA testing did not comply with Rule 215. For the following

reasons, we affirm.

¶2 I. BACKGROUND

¶3 The record reflects that Barbara B. Kaull passed away on March 16, 2011. Prior to her

death, Barbara established the Barbara B. Kaull Trust, which stipulated that after her death the

trust assets were to be divided “into separate shares equal in value, one for each then living child

of mine and one for the decedents, collectively, of each deceased child of mine.” Barbara had

three children: Mary, Sarah, and Mark Kaull. Mary became trustee of the trust on April 13,

2011. Mark Kaull predeceased Barbara. There is no dispute that Mark James is Mark Kaull’s

son. At issue in this case is whether Mark James is Mark Kaull’s only son.

¶4 This case began on September 29, 2011, when Mary, in her capacity as trustee, filed a

“Petition for Instructions” seeking a judicial determination as to the proper beneficiaries and

administration of the trust. In the petition Mary stated that there was a bona fide doubt as to

whether Mark James is Mark Kaull’s only child. Mary alleged that a bona fide doubt existed

because on March 4, 2010, the Texas Attorney General filed a “Petition to Establish the Parent-

Child Relationship” between Mark Kaull and Ryan. The Attorney General alleged that Mark

Kaull was Ryan’s father. A hearing on the petition was scheduled for August 6, 2010. However,

Mark Kaull died on April 3, 2010. On the date the petition was to be heard the Attorney General

dismissed the petition without prejudice.

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¶5 Elida Ochoa, Ryan’s mother, responded to the petition on behalf of her son. In the

response, Elida alleged that Ryan was Mark Kaull’s son and Mark James’ brother and therefore

an heir of Barbara and a beneficiary of the Barbara B. Kaull Trust. She admitted that she had

been married to Ralph Hans Schrader and that Ralph was listed as Ryan’s father on his birth

certificate. However, she stated that she and Ralph had been living separate and apart since June

2008 and were divorced on May 20, 2009. Ryan was born on August 19, 2009, in Texas.

¶6 Elida attached several exhibits to the response, including her affidavit in which she

alleged that Mark Kaull was Ryan’s biological father. Elida also stated that a DNA home

paternity test sent to the Identigene DNA Testing Center in Salt Lake City, Utah (Identigene),

excluded Ralph and confirmed Mark Kaull as Ryan’s biological father. A copy of the report was

attached to the response.

¶7 Also attached to the response was a handwritten notarized document entitled “Deposition

by Ralph Schrader,” which he signed. In the document, Ralph stated that he was married to

Elida when Ryan was conceived but had not been living with her since June 2008. Ralph stated

that he lived in Illinois and Elida lived in Texas. Ralph also stated that “on or about November

12, 2009” he participated in a DNA test with Ryan and Elida, that Mark Kaull was also present,

and that Mark also conducted a similar test. Ralph stated that the results of his DNA test

indicated that he could not be Ryan’s natural father. Ralph further stated that Mark Kaull told

him that he had a sexual relationship with Elida and that the DNA test indicated that he was

Ryan’s natural father. Ralph said that Mark Kaull told him that he was paying bi-weekly child

support for Ryan and intended to “fulfill all usual fatherly duties.”

¶8 The DNA report from Identigene stated that 99.9% of Caucasian men were excluded

from paternity and that Mark Kaull could not be excluded as Ryan’s father. The report also

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stated that the “transport and testing” were not performed in compliance with established chain-

of-custody guidelines.

¶9 Elida also attached a handwritten note to the response to the petition. The note was

purportedly signed by Mark Kaull and stated:

“I, Mark M. Kaull, am giving Elida Schrader $500 per month for the support of our son

Ryan D. Schrader. Sincerely, Mark Kaull.”

¶ 10 Mark James also filed a response to the petition. In his response, he denied that Ryan

was Mark Kaull’s child. He also alleged that he was Mark Kaull’s only child.

¶ 11 On February 24, 2012, Mark James filed a motion for judgment on the pleadings pursuant

to section 2-615(e) of the Code of Civil Procedure. 735 ILCS 5/2-615(e) (West 2010). In the

motion, Mark James argued that Mary’s petition put Ryan’s parentage at issue and therefore the

provisions of the Parentage Act applied. 750 ILCS 45/9(a) (West 2010). He argued that Mary

did not have standing under the Parentage Act, because she did not have custody of Ryan and

was not providing financial support to him. He also argued that he was entitled to judgment on

the pleadings because Elida had not rebutted the presumption of paternity by clear and

convincing evidence as required under the Parentage Act. 750 ILCS 45/5(b) (West 2010). He

requested that the trial court “instruct that petitioner, Mary K. Kaull, and respondents Sarah

Kaull and Mark James Kaull, are the only beneficiaries of the Barbara K. Kaull Trust, and

[direct] petitioner to distribute the trust estate according to the terms of the trust.”

¶ 12 Mary filed a response to Mark James’ motion for judgment on the pleadings. In her

response, she asserted that her petition was proper and that the Parentage Act did not apply to a

determination of heirship. Elida and Ryan also filed a response to Mark James’ motion as well

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as a counterpetition for declaratory judgment. On May 8, 2012, the trial court denied Mark

James’ motion and found that Mary had standing to bring her petition for instructions.

¶ 13 On November 30, 2012, Elida and Ryan filed a motion for a DNA test pursuant to Rule

215. In the motion, they stated that a bona fide doubt existed as to whether Mark Kaull was the

biological father. Elida and Ryan also alleged that sufficient facts existed to establish good cause

to order Mary and Mark James to submit to DNA testing. They further alleged that a positive

DNA test would be substantial proof that Mark James and Ryan were biological siblings. Mary

and Mark James were granted leave to file a response on or before January 11, 2013. Argument

on the motion was scheduled for January 25, 2013.

¶ 14 On January 23, 2013, Mark James filed an objection to Elida and Ryan’s motion for

DNA testing as well as a “Notice of Filing Rule 19 Notice of Claim of Unconstitutionality.” The

notice was sent to the attorneys for Mary, Mark James, and Ryan and the Illinois Attorney

General. Mark James objected to the motion on the following grounds:

1. The motion does not suggest the identity of the examiner, nor does it set forth

the examiner’s specialty or discipline;

2. The motion does not state that counsel have attempted to resolve this dispute

prior to court intervention as Illinois Supreme Court Rule 201(k) (eff. Jan. 1, 2013)

mandates;

3. Even if otherwise sufficient, the evidence in this matter is not persuasive and

credible enough to support it;

4. Rule 215 does not apply to paternity issues, because a familial relationship is

not a “physical condition”;

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5. Rule 215 is unconstitutional on its face because it no longer requires that

movants show even good cause.

¶ 15 On January 25, 2013, the trial court heard arguments on the motion for DNA testing.

Counsel for Ryan and Elida argued that the application of Rule 215 in paternity actions had been

approved by the appellate and supreme courts. Counsel also argued that the rule no longer set

out a requirement of good cause or a burden of proof and that it just gave the court discretion on

whether to order an examination. Counsel argued that it was unclear whether courts would still

require a “good cause” showing, but if there was such a requirement there was enough evidence

here to warrant compelling both Mary 1 and Mark James to submit to a DNA test.

¶ 16 Counsel for Mark James acknowledged that “the court most likely is bound by rulings of

the supreme court that [Rule] 215 does authorize trial courts to order DNA tests.” However, he

maintained that Rule 215 was unconstitutional “under the Illinois Constitutional invasions of

privacy without any showing of cause whatsoever.” Counsel argued alternatively that the

standard that should be applied is “credible, persuasive evidence” pursuant to Jarke v. Mondry,

2011 IL App (4th) 110150. Counsel argued that the evidence was insufficient because in her

response to the petition Elida admitted facts that gave rise to a presumption that the “legally

presumed father here” was Ralph. Counsel added that the DNA test results submitted by Elida

were not admissible, because there was no chain of custody. The trial court commented that

Mark James’ argument would create a situation where a person had to prove that he was the

biological father before he could have a DNA test. Counsel argued that, as in Jarke, Elida and

Ryan were relying on Mark Kaull’s statements to others that he was Ryan’s father, which were

1 Mary is not the biological daughter of Mark Kaull. Despite that undisputed fact, she

agreed to submit a DNA sample.

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hearsay. The trial court ruled that the statements were admissible and that counsel could cross-

examine the witnesses on whether the statements were actually made.

¶ 17 The trial court asked Mark James’ counsel whether he was arguing that under Rule 215

the court had discretion to order a DNA test, and counsel replied in the affirmative. The trial

court, after conferring with counsel, stated that it would follow Jarke, as it was the only case

addressing the issue of what type of showing was required by Rule 215 for ordering a DNA test.

¶ 18 Counsel for Ryan and Elida argued that the evidence submitted in support of the motion

for DNA testing had not been rebutted and that it was ample to order the test. Counsel also

argued that Mark James’ fourth-amendment argument was not supported by case law other than

criminal cases. Counsel argued that it was a general rule that a DNA test performed by swabbing

a person’s mouth was not unreasonable. With respect to Mark James’ Rule 201(k) argument, the

trial court concluded that ordering the test would seem to be “just an exercise in futility” given

the fact that Mark James’ counsel had stated that he was going to appeal if the court ordered the

test. With respect to the technical requirements of Rule 215 (naming the examiner, etc.), counsel

for Ryan and Elida stated that there was no prejudice and that he would submit an order that

complied with Rule 215.

¶ 19 The trial court ruled that it had the discretion to order a DNA test in this situation. The

court summarized the evidence and found that it was ample to order the test despite the

discrepancies. The court directed Mary’s counsel to submit an order that fulfilled the

requirements of Rule 215. Counsel for Mark James stated, “I do expect we’ll refuse to take the

test, and I’ll ask you, you know, at our next hearing, to give us a good faith contempt and we’ll

appeal it.”

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¶ 20 On February 1, 2013, Mark James refused to comply with the court’s order that he submit

to the collection of a DNA sample. The court found him in indirect civil contempt and ordered a

penalty of $100 plus $1 per day until his compliance with the order. The court found that his

refusal to comply was made in good faith to pursue an appeal of the contempt order. Mark

James then filed a timely notice of appeal. On February 8, 2013, Mark James filed a notice to

the Illinois Attorney General pursuant to Illinois Supreme Court Rule 19 (eff. Sept. 1, 2006) that

he intended to challenge the constitutionality of Rule 215. We granted the Attorney General’s

motion to intervene on April 13, 2013.

¶ 21 II. ANALYSIS

¶ 22 We are called upon to determine whether Mark James was justified in refusing to obey

the trial court’s order requiring him to provide a DNA sample pursuant to Rule 215. Discovery

orders are not final orders and are not ordinarily appealable. However, the correctness of a

discovery order may be tested through contempt proceedings. Norskog v. Pfiel, 197 Ill. 2d 60,

69 (2001). We have jurisdiction over this appeal pursuant to Illinois Supreme Court Rule

304(b)(5) (eff. Feb. 26, 2010). Review of the trial court’s contempt finding requires our review

of the order on which it was based. Discovery orders are ordinarily reviewed for a manifest

abuse of discretion. Maxwell v. Hobart Corp., 216 Ill. App. 3d 108, 110 (1991). This appeal

involves a constitutional challenge to Rule 215 as well as issues of construction of the Parentage

Act. These are matters of law, which we review de novo. Clark v. Illinois State Board of

Elections, 2014 IL App (1st) 141937, ¶ 15 (constitutionality is a pure question of law, which we

review de novo); Nelson v. Kendall County, 2014 IL 116303, ¶ 22 (issues of statutory

construction are reviewed de novo).

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¶ 23 We are also called upon to decide whether, assuming we reject Mark James’

constitutional claim and determine that Rule 215 applies in this case, the trial court abused its

discretion in ordering a DNA test.

¶ 24 Before addressing the merits of this appeal, we note that Mark James failed to strictly

comply with Rule 19 in the trial court. That rule requires that in any cause challenging the

constitutionality of a statute, ordinance, administrative regulation, or other law affecting the

public interest, where the State or political subdivision, agency, or officer affected is not already

a party, the litigant raising the constitutional issue shall serve an appropriate notice on the

Attorney General. See Ill. S. Ct. R. 19(a) (eff. Sept. 1, 2006). The purpose of the notice is to

afford the Attorney General the opportunity, but not the obligation, to intervene for the purpose

of defending the constitutionality of the law that is being challenged.

¶ 25 Mark James’ purported notice pursuant to Rule 19 in the trial court was mailed to the

Attorney General on January 23, 2013, for a hearing that was scheduled for January 25, 2013.

Illinois Supreme Court Rule 12(c) (eff. Jan. 4, 2013) provides that “[s]ervice by mail is complete

four days after mailing.” Local rule 10.03 of the Seventeenth Judicial Circuit provides that

“service of notice of hearing must be perfected by 4:00 P.M. of the second court day preceding

the hearing of the motion.” 17th Judicial Cir. Ct. R. 10.03 (Oct. 1991). Strict compliance with

Rule 19 is generally required. Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 116 (2004). In

this case, it is clear that Mark James did not strictly comply with the rule, which may result in

forfeiture. Id. at 119. However, failure to comply with Rule 19 does not deprive this court of

jurisdiction to consider the constitutional issue. Id. In this case, although Mark James failed to

comply with Rule 19’s notice requirements for the January 25, 2013, hearing, he did serve an

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appropriate notice on the Attorney General for purposes of this appeal. Therefore, in the

exercise of our discretion we will consider the merits of this appeal.

¶ 26 A. Federal and State Constitutional Violations

¶ 27 Mark James argues that Rule 215 is unconstitutional under both the federal and Illinois

constitutions. The constitutionality of Rule 215 is an issue of first impression. In fact, our

research has not uncovered a single case from any jurisdiction holding that a state supreme court

discovery rule violates the fourth amendment. Here, Mark James claims that Rule 215 allows

the court to order searches, seizures, and (with respect to the Illinois Constitution) invasions of

privacy without a showing of any cause whatsoever. He argues that it would be improper for this

court to read into the rule a “good cause” or “persuasive and credible evidence” standard,

because its drafters clearly intended that no such showing is required.

¶ 28 Supreme court rules are adopted to facilitate the work of the courts and they have the

force of law. Harris v. Annunzio, 411 Ill. 124, 127 (1952). There is a presumption that the rules

will be obeyed and enforced as written. People v. Glasper, 234 Ill. 2d 173, 189 (2009). Toward

this end, we interpret supreme court rules in the same manner as statutes. See Ill. S. Ct. R. 2(a)

(eff. May 30, 2008); People v. Blair, 2011 IL App (2d) 070862, ¶ 33. In analyzing Rule 215, our

task is to ascertain and give effect to the intention of the drafters. People v. Thompson, 238 Ill.

2d 598, 606 (2010). The best indication of intent is the language of the rule, given its plain and

ordinary meaning. Id. (citing People v. Marker, 233 Ill. 2d 158, 165 (2009)). When a rule’s

language is clear and unambiguous, it will be applied as written without resort to aids of

construction. Id. (citing People v. Campbell, 224 Ill. 2d 80, 84 (2006)). Our interpretation is de

novo. Id. (citing People v. Suarez, 224 Ill. 2d 37, 41-42 (2007)).

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¶ 29 As with statutes, there is a strong presumption that a court rule is constitutional, and the

party challenging its constitutionality bears the burden of clearly establishing that the rule

violates the constitution. See People v. Kitch, 239 Ill. 2d 452, 466 (2011). We must construe the

challenged rule in a manner that upholds its constitutionality, if reasonably possible. See People

v. Hollins, 2012 IL 112754, ¶ 13. A facial challenge is the most difficult to make. Napleton v.

Village of Hinsdale, 229 Ill. 2d 296, 305 (2008). In a facial challenge, the party must establish

that no set of circumstances exists under which the rule would be valid. United States v. Stevens,

559 U.S. 460, 472 (2010). Illinois Supreme Court Rules 201 through 224, the rules of discovery,

are designed to be “flexible and adaptable to the infinite variety of cases and circumstances

appearing in the trial courts.” Monier v. Chamberlain, 35 Ill. 2d 351, 355 (1966). The objective

under the discovery rules is to obtain the “ ‘expeditious and final determination of controversies

in accordance with the substantive rights of the parties.’ ” Sarver v. Barrett Ace Hardware, Inc.,

63 Ill. 2d 454, 460 (1976) (quoting Monier, 35 Ill. 2d at 357).

¶ 30 Mark James advances the theory that the 1996 amendment to Rule 215, which eliminated

the “good cause” requirement for seeking a physical or mental examination of a party, is

unconstitutional because it intrudes without restriction on a fundamental right—the right to be

free from unreasonable searches and seizures under the fourth amendment to the federal

constitution and the right to privacy under article I, section 6, of the Illinois Constitution. U.S.

Const., amend. IV; Ill. Const. 1970, art. I, § 6. The Attorney General argues that Mark James

cannot mount such a challenge, because the protections of the fourth amendment as well as the

right to privacy under the Illinois Constitution apply only to state action. People v. Phillips, 215

Ill. 2d 554, 566 (2005); People v. Clements, 80 Ill. App. 3d 821, 824 (1980). The Attorney

General relies on Union Oil Co. of California v. Hertel, 89 Ill. App. 3d 383 (1980), which held

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that the protections of the fourth amendment and the Illinois Constitution against unreasonable

searches and seizures did not apply to a civil discovery order in an action between private

parties. Id. at 386. The Attorney General also cites a number of cases from other jurisdictions in

which courts have declined to apply the protection of the fourth amendment to civil discovery.

For example, one federal court has observed that “[i]t strains common sense and constitutional

analysis to conclude that the fourth amendment was meant to protect against unreasonable

discovery demands made by a private litigant in the course of civil litigation.” United States v.

International Business Machines Corp., 83 F.R.D. 97, 102 (S.D.N.Y. 1979). The Attorney

General argues that applying the fourth amendment to civil discovery in private litigation “would

undermine the core principles of modern civil discovery.”

¶ 31 In response, Mark James argues that none of the cases that Elida, Ryan, and the Attorney

General rely on concern a power reserved to the court to order invasions into a fundamental

right. He contends that his focus is not on “depositions, interrogatories and requests-to-

produce,” which do not require court orders for their effect. Instead, he argues that “giving

courts the power to command people to submit to physical and mental examinations without a

good reason is state action at its worst.”

¶ 32 A state’s mere acquiescence to a private action does not convert it to a state action. In re

Marriage of Braundmeier, 201 Ill. App. 3d 14, 17 (1990). However, in his facial challenge,

Mark James is not contesting the trial court’s order itself. In fact, during the hearing on the Rule

215 motion he conceded that, under Rule 215 as presently written, the trial court had the

authority and the discretion to order the DNA test. Instead, his argument is that the Illinois

Supreme Court, by removing the “good cause” requirement, rendered the rule unconstitutional

on its face.

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¶ 33 There is no question that our supreme court is a state actor. The question before us is

whether the court’s action in amending Rule 215 was sufficiently significant so that Mark James

can invoke the protection afforded by the fourth amendment. See USA I Lehndorff

Vermoegensverwaltung GmbH & Cie v. Cousins Club, Inc., 64 Ill. 2d 11, 18 (1976). In Illinois,

“once a lawsuit has been filed, and all parties have appeared, the pretrial search for matters

relevant to the pending litigation is controlled by discovery rules promulgated” by our supreme

court. Bruske v. Arnold, 44 Ill. 2d 132, 135 (1969). Under the Illinois Constitution, the Illinois

Supreme Court “retains primary constitutional authority over court procedure.” Kunkel v.

Walton, 179 Ill. 2d 519, 528 (1998).

¶ 34 In Kunkel, the Illinois Supreme Court considered the constitutionality of section 2-

1003(a) of the Code of Civil Procedure (735 ILCS 5/2-1003(a) (West 1994)) as amended by the

Civil Justice Reform Amendment of 1995 (Pub. Act 89-7 (eff. Mar. 9, 1995)). Section 2-1003(a)

provided that any party who alleged a claim for bodily injury or disease shall be deemed to

waive any privilege of confidentiality with his or her health care provider. Kunkel, 179 Ill. 2d at

523. The section also provided that, upon request of the other party, the party claiming injury

shall sign and deliver consent forms authorizing health care providers to disclose records and to

engage in ex parte conferences with the requesting party’s attorneys. Id. at 523-24. In Kunkel,

the defendants argued that the provisions of section 2-1003(a) “[did] not run afoul of the

prohibition of unreasonable invasions of privacy because, according to defendants, that

prohibition ‘does not apply to actions between private parties.’ ” Id. at 539. The supreme court

rejected this argument, stating: “However, section 2-1003(a) provides for state action as the

means to compel the disclosure of constitutionally protected medical information: where a party

fails to tender a consent the trial court may either dismiss the lawsuit or enter an order

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authorizing disclosure of the requested medical information.” Id. The supreme court did not cite

any precedent for this holding. However, it is clear from the United States Supreme Court’s

decision in Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), that “[w]hile private misuse of a

state statute does not describe conduct that can be attributed to the State, the procedural scheme

created by the statute obviously is the product of state action.” (Emphasis added.) Id. at 941.

While the Lugar decision involved a “color of state law” issue in a civil rights case pursuant to

42 U.S.C. § 1983, the Court stated, “[i]f the challenged conduct of respondents constitutes state

action as delimited by our prior decisions, then that conduct was also action under color of state

law and will support a suit under § 1983.” Id. at 935. The Lugar Court stressed the important

role the “state action” requirement plays in preserving “an area of individual freedom by limiting

the reach of federal law and federal judicial power.” Id. at 936. Additionally, the “state action”

requirement “avoids imposing on the State, its agencies or officials, responsibility for conduct

for which they cannot fairly be blamed.” Id. The Court explained that its past cases had

“insisted that the conduct allegedly causing the deprivation of a federal right be fairly attributable

to the State.” Id. at 937. The Court outlined a two-part approach to the issue of fair attribution:

“First, the deprivation must be caused by the exercise of some right or privilege

created by the State or by a rule of conduct imposed by the State or by a person for whom

the State is responsible. *** Second, the party charged with the deprivation must be a

person who may fairly be said to be a state actor. This may be because he is a state

official, because he has acted together with or has obtained significant aid from state

officials, or because his conduct is otherwise chargeable to the State.” Id.

¶ 35 Mark James’ argument for this court to find state action barely survives forfeiture. He

cites no case law from any jurisdiction applying the fourth amendment to a discovery rule or a

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discovery order in a civil case between private parties. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6,

2013) (appellate brief shall contain the appellant’s argument with citation of the authorities relied

upon). Mark James’ argument is textual. He argues simply that, because Federal Rule of Civil

Procedure 35 and the rules in 44 states require “good cause” for a physical or mental

examination to be ordered, Illinois Rule 215 must be unconstitutional.

¶ 36 Elida, Ryan, and the Attorney General cite Hertel for the proposition that the fourth

amendment does not apply to discovery orders in civil actions between private parties. In reply,

Mark James argues that Hertel is “weak” because: (1) it has not been relied upon by any other

court; and (2) it involved an order for a “handwriting sample,” which is not a search under the

fourth amendment.

¶ 37 Our own research has discovered a number of Illinois cases where reviewing courts have

applied the fourth amendment to discovery orders in civil cases between private parties. Most of

those cases were decided before the modern rules of discovery were adopted in 1963. Monier v.

Chamberlain, 31 Ill. 2d 400, 403 (1964). Monier involved a direct appeal to the Illinois Supreme

Court from an order holding the defendants in contempt for their failure to produce documents

for inspection and copying. The appeal was taken directly to the Illinois Supreme Court on the

ground that the order violated due process and the state and federal constitutional guarantees

against unreasonable searches and seizures. Id. at 401. The defendants relied upon several cases

in which the Illinois Supreme Court had reviewed contempt orders on direct review under

“ ‘procedural doctrines which had exalted the role of a trial as a battle of wits and subordinated

its function as a means of ascertaining the truth.’ ” Id. (quoting Krupp v. Chicago Transit

Authority, 8 Ill. 2d 37, 41 (1956)). The court then stated, “whatever the judicial climate that

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prevailed when they were decided, the cases relied upon do not indicate the existence of a

substantial constitutional question in the present case.” Id.

¶ 38 The Monier court discussed a case from 1890, Lester v. People, 150 Ill. 408, 419 (1890),

which involved an order that was alleged to be unconstitutional because it required the surrender

of “books of a party” to a third person for an indefinite period of time. Next, the Monier court

discussed Denison Cotton Mill Co. v. Schermerhorn, 257 Ill. 128 (1912), which involved an

order that was allegedly too broad, in that it called for the production of books and records that

were not pertinent or material to the issues in that case. Monier, 31 Ill. 2d at 402. In 1928, the

supreme court set aside a contempt order because there was no showing of materiality and the

order left to the attorneys’ discretion what they would inspect and what was material or

immaterial to the issue. Carden v. Ensminger, 329 Ill. 612, 622 (1928).

¶ 39 In citing Carden, Lester, and Denison, the Monier court stated that “[t]hese cases

demonstrate that even before the adoption of the Civil Practice Act in 1933, the boundaries of the

area constitutionally protected against unreasonable search and seizure were fixed at the limits of

relevance.” Monier, 31 Ill. 2d at 402. The Monier court also explained that in Krupp “we

pointed out that discovery before trial ‘presupposes a range of relevance and materiality which

includes not only what is admissible at the trial, but also that which leads to what is admissible at

trial.’ ” Id. 403 (quoting Krupp, 8 Ill. 2d at 41). The court declined to consider the issue

concerning the scope of discovery in Monier because it did not present any debatable

constitutional issue, and it transferred the case to the appellate court. Id. at 404-05. The court

reiterated what it had previously held regarding discovery rules:

“[W]e said that the discovery rules ‘were adopted as procedural tools to effectuate the

prompt and just disposition of litigation, by educating the parties in advance of trial as to

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the real value of their claims and defenses. As noted by legal scholars, those rules will

suffice for present needs if lawyers and judges will use them with an understanding of

that purpose.’ ” Id. at 403 (quoting People ex rel. Terry v. Fisher, 12 Ill. 2d 231, 236

(1957)).

¶ 40 A few years after Monier, the supreme court again declined to consider a claim that

discovery orders violated the “constitutional rights against unreasonable searches and seizures,

because they deprived defendant of its property without due process of law, and because their

entry was attended by a lack of procedural due process with respect to notice and hearing.”

People ex rel. General Motors Corp. v. Bua, 37 Ill. 2d 180, 195 (1967). In Bua, the court said

that it would not consider the constitutional attack, noting that what it said in Monier applied. Id.

The Bua court, however, exercised its discretionary jurisdiction to consider the challenged

orders. Id. at 193. The court said that it hoped that by doing so the bench and bar would be

encouraged to “wisely use the tools of discovery to illuminate the actual issues in the case rather

than to harass and obstruct the opposing litigant.” Id.

¶ 41 It seems clear from a reading of Monier and Bua that the supreme court has repeatedly

held that questions regarding invasions of privacy, overbreadth, and relevancy with respect to

discovery orders are to be resolved by trial and reviewing courts without resorting to fourth

amendment analysis. The court’s reasoning in Monier and Bua is consistent with the well-

established rule that reviewing courts will not address constitutional issues that are unnecessary

for the disposition of the case. People v. Waid, 221 Ill. 2d 464, 473 (2006).

¶ 42 We recognize that on occasion appellate courts have considered constitutional challenges

to discovery orders. Our research has discovered two such cases since Monier and Bua. In

Dufour v. Mobil Oil Corp., 301 Ill. App. 3d 156 (1998), the plaintiff’s attorney was held in

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contempt for refusing to disclose his client’s bank account information. The appellate court

concluded that, “[e]ven with a right of privacy in bank records guaranteed by the Illinois

Constitution, the protection is only against unreasonable searches and seizures and not

reasonable ones.” Id. at 161. The appellate court affirmed the trial court’s discovery order

because the records sought were relevant and not excessive for the purpose of the relevant

inquiry. Id.

¶ 43 In In re Marriage of Puterbaugh, 327 Ill. App. 3d 792 (2002), the appellate court

considered a fourth amendment and Illinois constitutional right-of-privacy challenge to a

discovery order. Elizabeth Puterbaugh petitioned for an increase in child support from her ex-

husband David. During discovery, Elizabeth requested a copy of David’s antenuptial agreement

with his new wife, Katherine. David and Katherine claimed that the document was covered by

marital privilege and that disclosure would violate “their right to privacy in their marriage under

the constitutions of the United States and Illinois.” Id. at 795. The appellate court considered

the constitutional challenge and held that the financial information contained in David and

Katherine’s antenuptial agreement was not protected by the couple’s constitutional right to

privacy in their marriage. Id. at 796.

¶ 44 We can see from an examination of the decisions in Dufour and Puterbaugh that the

constitutional analysis was unnecessary to resolve the issues in those cases. Constitutional

principles should be addressed only when a case cannot be resolved in any other way. In re

Haley D., 2011 IL 110886, ¶ 54. Both the Illinois Supreme Court and the United States Supreme

Court have made it clear that the rules of discovery contemplate disclosure of information that

would otherwise be protected from disclosure. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 30

(1984); Kunkel, 179 Ill. 2d at 538. The rules of discovery require full disclosure of information

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that is not privileged and that is relevant to the issues in the lawsuit. Kunkel, 179 Ill. 2d at 533-

38. Additionally, the discovery rules provide for notice and opportunity to be heard before any

physical or mental examination, or for that matter any private information, can be compelled.

“Rule 201 and related rules governing specific discovery methods form a comprehensive scheme

for fair and efficient discovery with judicial oversight to protect litigants from harassment.” Id.

at 531. “The concept of relevance facilitates trial preparation while safeguarding against

improper and abusive discovery.” Id. In 2012, Rule 201(m) was amended to “minimize any

invasion of privacy that a litigant may have by filing discovery in a public court file.” Ill. S. Ct.

R. 201(m), Committee Comments (adopted Oct. 24, 2012).

¶ 45 The requirements of relevance and reasonableness together with judicial oversight

provided by the rules of discovery appear to more than satisfy any fourth amendment or Illinois

privacy concerns. See Oklahoma Press Publication Co. v. Walling, 327 U.S. 186, 196 (1946);

International Business Machines Corp., 83 F.R.D. at 103; Luminella v. Marcocci, 814 A.2d 711,

721 (Pa. Super. Ct. 2002).

¶ 46 Mark James also argues without any authority that the warrant clause of the fourth

amendment applies to Rule 215 requests for physical and mental examinations. Even in cases

where the government is seeking bodily samples via a grand jury subpoena, where there has been

judicial review of the validity of the subpoena, the witness’s fourth amendment rights are fully

protected. People v. Watson, 214 Ill. 2d 271, 286 (2005). The Supreme Court made clear in

Schlagenhauf v. Holder, 379 U.S. 104 (1964), that “the movant must produce sufficient

information, by whatever means, so that the district judge can fulfill his function mandated by

the Rule.” Id. at 119.

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¶ 47 We agree with Elida, Ryan, and the Attorney General that applying the fourth

amendment to requests for discovery in civil cases between private parties undermines the core

principles of modern discovery. As the United States Supreme Court said in Mapp v. Ohio, 367

U.S. 643 (1961), “[t]here is no war between the Constitution and common sense.” Id. at 657. It

is completely unnecessary to engage in fourth amendment or Illinois constitutional-privacy-

clause analysis of discovery orders because, if an order satisfies the requirements of our rules, it

would satisfy any constitutional concerns.

¶ 48 In Kunkel, the supreme court struck down an Illinois statute based in part on an Illinois

constitutional privacy challenge because the statute required disclosure of highly personal

medical information without any showing of relevance and without any form of judicial

oversight or discretion to prevent abusive use of the consent procedure. Kunkel, 179 Ill. 2d at

531, 535. It is clear from Illinois Supreme Court decisions that a discovery order issued pursuant

to a proper exercise of a procedural rule in a civil case does not infringe on any constitutional

rights. People ex rel. Terry v. Fisher, 12 Ill. 2d 231, 240 (1957). However, a rule that permits

compelled disclosure of private information without a constitutionally sufficient showing would

violate the privacy clause of the Illinois Constitution.

¶ 49 We note that in Kunkel the Illinois Supreme Court cited a case that predated our modern

rules of discovery—Firebaugh v. Traff, 353 Ill. 82 (1933), where the court applied Illinois

constitutional analysis to a discovery order. The Kunkel court cited this case, however, to

illustrate the point that, while full disclosure of medical information is required, the information

must be relevant to the issues in the lawsuit. Kunkel, 179 Ill. 2d at 538. We do not believe that

the court intended to open the floodgates to constitutional challenges to discovery orders. That

said, the only way to resolve the present case is to consider Mark James’ constitutional challenge

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to Rule 215. Mark James argues that “relevance under Rule 215 is broader than probable cause

under the fourth amendment. Rule 215 isn’t drafted narrowly enough to be constitutional.”

¶ 50 In order to analyze Mark James’ claim that Rule 215 is unconstitutional we must first

determine the nature of the right to be infringed by enforcement of that rule. Classification of the

right dictates the level of scrutiny to be employed in determining whether the rule in question

comports with the constitution. See Tully v. Edgar, 171 Ill. 2d 297, 304 (1996). Ordinarily

courts will uphold a statute if it bears a rational relationship to a legitimate legislative purpose

and is neither arbitrary nor unreasonable. Id. Where, however, a classification has been made on

the basis of, inter alia, race or national origin, or the constitutional right at issue is considered to

be “fundamental,” the presumption of constitutionality is weaker and the statute is subject to

strict scrutiny. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 307 (2008). To survive strict

scrutiny, “the measures employed by the government body must be necessary to serve a

compelling state interest, and must be narrowly tailored thereto, i.e., the government must use

the least restrictive means consistent with the attainment of its goal.” Id. (citing In re R.C., 195

Ill. 2d 291, 303 (2001)). Mark James argues that Rule 215 interferes with a fundamental right to

privacy and that therefore we should apply strict scrutiny to that rule. In support of his argument

that the right to privacy under the Illinois Constitution is infringed by Rule 215, he relies on In re

May 1991 Will County Grand Jury, 152 Ill. 2d 381 (1992). In that case, the Illinois Supreme

Court held that a person subpoenaed before the grand jury could not be compelled to submit a

blood standard, pubic hair standard, or head hair standard unless probable cause was shown. Id.

at 394-400. Mark James argues that physical and mental examinations are different from other

forms of discovery because they require intrusion into another’s body and therefore require a

greater showing than relevance. Id. at 391-92.

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¶ 51 Whether a person has a legitimate expectation of privacy varies with context, depending

upon: (1) whether the individual asserting the right is at home, at work, in a car, etc.; and (2) the

legal relationship involved. Vernonia School District 47J v. Acton, 515 U.S. 646, 654 (1995).

Mark James is not a suspect in a criminal case. He is a party to a civil action and is in possession

of material, his own DNA, that will likely determine whether Ryan is a beneficiary of the

Barbara B. Kaull Trust. We reject his contention that strict scrutiny applies. Rule 215 does not

“impose a direct impediment” to Mark James’ right to privacy under the fourth amendment or

article I, section 6, of the Illinois Constitution. U.S. Const., amend. IV; Ill. Const. 1970, art. I,

§ 6; see Boynton v. Kusper, 112 Ill. 2d 356, 369 (1986) (special tax on marriage license imposed

a direct impediment on the fundamental right to marry). It is beyond dispute that civil litigants

have a drastically reduced expectation of privacy. As the United States Supreme Court stated

about discovery rules in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984):

“The Rules do not differentiate between information that is private or intimate and

that to which no privacy interests attach. Under the Rules, the only express limitations

are that the information sought is not privileged, and is relevant to the subject matter of

the pending action. Thus, the Rules often allow extensive intrusion into the affairs of

both litigants and third parties.” (Emphases added.) Id. at 30.

¶ 52 Mark James relies on Seattle Times for the proposition that the government has a

substantial interest in preventing the abuse of discovery procedures because they “may seriously

implicate privacy interests of litigants and third parties.” Id. at 35-36. He takes this language

completely out of context. In Seattle Times, the Supreme Court upheld a protective order, issued

under Rule 26(c) of the Federal Rules of Civil Procedure, that “prohibited petitioners from

publishing, disseminating, or using the information in any way except where necessary to

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prepare for and try the case.” Id. at 27. As the Supreme Court noted, most states, including

Illinois and Washington, have adopted discovery rules modeled on federal Rules 26 through 37.

Like federal Rule 26(c), Illinois Supreme Court Rule 201 (eff. July 1, 2002), which is applicable

to all discovery, states that the trial court “may at any time on its own initiative, or on motion of

any party or witness, make a protective order as justice requires, denying, limiting, conditioning,

or regulating discovery to prevent unreasonable annoyance, expense, embarrassment,

disadvantage, or oppression.” As the Court explained, pretrial discovery procedures are in

general conducted in private as a matter of modern practice. Seattle Times, 467 U.S. at 33.

Protective orders afford private litigants like Mark James the opportunity to prevent public

disclosure of private information tendered in discovery that might be “damaging to reputation

and privacy.” (Emphasis added.) Id. at 35. Thus we agree with Elida, Ryan, and the Attorney

General that Rule 215 should be assessed under the reasonableness standard.

¶ 53 The Illinois Supreme Court possesses rulemaking authority to regulate the trial of cases.

People v. Cox, 82 Ill. 2d 268, 274 (1980). The supreme court is also free to modify and amend

any rule or doctrine that it creates. Larson v. Buschkamp, 105 Ill. App. 3d 965, 967 (1982). The

entire body of supreme court rules is periodically reviewed to “ensure that those rules continue to

facilitate the administration of justice.” Ill. S. Ct. R. 3(d) (eff. Mar. 22, 2010). The rules are

under constant review and are frequently amended and revised. In re Loss, 119 Ill. 2d 186, 195

(1987). Rules 201 through 219 cover discovery. The supreme court, in performing its rule

making function, is presumed to have acted in a constitutional manner and a rule may be

overturned only if it is conclusively established to be arbitrary and unreasonable. See, e.g.,

People v. Pollution Control Board, 129 Ill. App. 3d 958, 962 (1984) (General Assembly is

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presumed to have acted in a constitutional manner and its legislation may be overturned only if it

is conclusively established to be arbitrary and unreasonable).

¶ 54 Mark James must establish that Rule 215 would be invalid under any set of

circumstances. The constitution should, whenever possible, be construed to avoid irrational,

absurd, or unjust consequences. People ex rel. Giannis v. Carpentier, 30 Ill. 2d 24, 29 (1964).

Mark James argues that appellate courts that have interpreted the rule to require more than “in

controversy” and “relevance” were incorrect in doing so, because it is clear from the committee

comments on the rule that our supreme court intended to remove the “good cause” requirement

when it amended the rule. The committee stated, “[t]he new language was adopted to effectuate

the objectives of the rule with minimal judicial involvement. The requirement of ‘good cause’

was therefore eliminated as grounds for seeking an examination.” Ill. S. Ct. R. 215, Committee

Comments (revised June 1, 1995). 2 The changes to the rule appear to have had the intended

effect as “[m]ost examinations are performed pursuant to informal agreements between attorneys

for the parties involved rather than pursuant to S. Ct. Rule 215.” Joseph G. Feehan, Remedies for

Noncompliance, in Illinois Civil Discovery Practice § 10.39 (Ill. Inst. for Cont. Legal Educ.

2014).

¶ 55 We agree with Mark James that the supreme court intended to remove the “good cause”

requirement. “The cardinal rule of statutory construction, to which all other canons and rules are

subordinate, is to ascertain and give effect to the true intent and meaning of the legislature.”

Kunkel, 179 Ill. 2d at 533. Like statutes, rules must not be interpreted so as to defeat the intent of

the drafter. In re Estate of Rennick, 181 Ill. 2d 395, 404 (1998) (when interpreting a supreme

court rule, we apply the same principles of construction that apply to a statute). Trial and

2 Rule 215 was amended on June 1, 1995, and became effective on January 1, 1996.

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appellate courts are bound by the supreme court and have no authority to overrule the supreme

court or modify its decisions. Angelini v. Snow, 58 Ill. App. 3d 116, 119 (1978). Supreme court

rules have the force of law and must be applied as written. Rodriguez v. Sheriff’s Merit Comm’n,

218 Ill. 2d 342, 353 (2006).

¶ 56 Whenever we interpret or construe a statute or rule it is important to consider the history

of the legislation or rule and also to examine similar subjects though not strictly in pari materia.

See Walgreen Co. v. Industrial Comm’n, 323 Ill. 194, 198 (1926). Unfortunately, other than his

comparison of Rule 215 to federal Rule 35 and the rules in other states, Mark James fails to

furnish any history surrounding the development of discovery rules permitting physical and

mental examinations. The briefs filed by Elida, Ryan, and the Attorney General fare no better.

The parties and the Attorney General do discuss the United States Supreme Court decisions in

Sibbach v. Wilson & Co., 312 U.S. 1 (1941), and Schlagenhauf. However, those cases dealt with

fourth amendment challenges to federal Rule 35, which requires both that the “physical” or

“mental” condition be “in controversy” as well as a showing by the requesting party that there is

“good cause” for the examination.

¶ 57 The Attorney General points out that in Schlagenhauf the Supreme Court held that Rule

35 “could not be assailed on constitutional grounds.” See Schlagenhauf, 379 U.S. at 113. Mark

James responds by stating that in that case the Court held that the “good cause” requirement of

federal Rule 35 was not a mere formality but was a plainly expressed limitation on the use of that

rule. Id. at 118. Of course, Mark James is suggesting that the “good cause” limitation on the use

of the rule is grounded in the fourth amendment rather than a precaution to make sure that trial

courts carefully balance the interests of the parties before authorizing a surrender of personal

privacy thought to be greater than with other discovery methods. We have carefully examined

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the history of both Illinois Rule 215 (formerly Rule 17) as well as federal Rule 35, and we agree

with the Attorney General, Elida, and Ryan that a showing of “good cause” is not required by

either the fourth amendment or the Illinois Constitution’s privacy clause. See U.S. Const.,

amend. IV; Ill. Const. 1970, art. I, § 6. The 1996 amendment removing the “good cause”

requirement was not the only change to Rule 215. The rule was also amended to remove

reference to “physician,” “examining physician,” and “expert.” These terms were replaced with

the term “licensed professionals.” The committee recognized that requests for physical and

mental examinations may well include other licensed professionals besides physicians. Ill. S. Ct.

R. 215, Committee Comments (revised June 1, 1995). These changes, along with the removal of

the “good cause” requirement, are consistent with the principle that “[d]isclosure is the object of

all our discovery procedures” and that “trial courts should make disclosure a reality.” Buehler v.

Whalen, 70 Ill. 2d 51, 67 (1977). One commentator has suggested that the removal of the phrase

“good cause” was due to the fact that in the early 1990s “courts had rejected several requests for

examinations pursuant to Rule 215, so this amendment may reflect a desire on the part of the

Committee for 215 examinations to be readily available.” 10 Jeffrey S. Kinsler & Jay E. Grenig,

Illinois Practice Series, Civil Discovery § 15:2 (2d ed.).

¶ 58 Whatever the reasons for the changes in the rules, it is clear from the case precedent that

led to the adoption of both federal Rule 35 and Illinois Rule 215 (formerly Rule 17) that a

showing of “good cause” is not constitutionally required. In fact, the notes of the advisory

committee on Rule 35 (1937) state:

“The constitutionality of legislation providing for physical examination of parties

was sustained in Lyon v. Manhattan Railway Co., 142 N.Y. 298, 37 N.E. 113 (1894), and

McGovern v. Hope, 63 N.J.L. 76, 42 Atl. 830 (1899). In Union Pacific Ry. Co. v.

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Botsford, 141 U.S. 250 (1891), it was held that the court could not order the physical

examination of a party in the absence of statutory authority. But in Camden and

Suburban Ry. Co. v. Stetson, 177 U.S. 172 (1900) where there was no statutory authority

for such examination, derived from a state statute made operative by the conformity act,

the practice was sustained. Such authority is now found in the present rule made

operative by the Act of June 19, 1934, ch. 651, U.S.C., Title 28 §§ 723b [now § 2072]

(Rules in actions at law; Supreme Court authorized to make) and 723c [now § 2072]

(Union of equity and action at law rules; power of Supreme Court).” Fed. R. Civ. P. 35,

Advisory Committee Notes, 1937.

¶ 59 In Lyon, the statute at issue provided:

“In every action to recover damages for personal injuries, the court or judge, in

granting an order for the examination of the plaintiff before trial, may, if the defendant

apply therefor, direct that the plaintiff submit to a physical examination by one or more

physicians or surgeons to be designated by the court or judge, and such examination shall

be had and made under such restrictions and directions as to the court or judge shall seem

proper.” (Internal quotation marks omitted.) Lyon, 142 N.Y. at 303.

¶ 60 The New York Court of Appeals rejected the plaintiff’s argument that the “statute in

effect interferes with the sacredness and privacy of her own person, and deprives her of her

liberty and natural rights and the equal protection of the laws.” Id. at 302. In response, the court

stated:

“The argument, though perhaps novel, and subject to the objection that it seeks to push a

principle to extremes, is not without interest on account of the ideas advanced and the

manner of their presentation. In the view we take of the questions involved in the appeal,

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it will not be necessary to follow the discussion. The statute enacts a rule of procedure,

the purpose of which is the discovery of the truth in respect of certain allegations which

the plaintiff has presented for judicial investigation in the courts of justice. It prescribes a

method of aiding the court and jury in the correct determination of an issue of fact raised

by the pleadings, and, as it seems to me, does not violate any of the express or implied

restraints upon legislative power to be found in the fundamental law. But, in regard to

the meaning and construction of the statute, I think the court below was entirely correct.

The general purpose of the enactment was to change a rule of the common law which had

recently been asserted by the highest court and by this court. (The Union Pacific Ry. Co.

v. Botsford, 141 U. S. 250; McQuigan v. Delaware, Lackawanna & Western R. R. Co.,

129 N.Y. 50.)” Id.

¶ 61 The statute at issue in McGovern provided:

“On or before the trial of any action brought to recover damages for injury to the person,

the court before whom such action is pending may, from time to time, on application of

any party therein, order and direct an examination of the person injured as to the injury

complained of by a competent physician or physicians, surgeon or surgeons, in order to

qualify the person or persons making such examination to testify in the said cause as to

the nature, extent and probable duration of the injury complained of; and the court may in

such order direct and determine the time and place of such examination: provided, this

act shall not be construed to prevent any other person or physician from being called and

examined as a witness as heretofore.” (Internal quotation marks omitted.) McGovern v.

Hope, 42 A. 830, 831 (N.J. 1899).

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¶ 62 The plaintiff in McGovern argued that the statute was unconstitutional. In rejecting the

plaintiff’s argument, the Supreme Court of New Jersey echoed the holding in Lyon that the

statute did not “violate any of the express or implied restraints upon the legislative power to be

found in the fundamental law.” (Internal quotation marks omitted.) Id. at 832. The McGovern

court also noted that “[t]he plaintiff, having brought suit and made claim for damages on account

of personal injuries of that nature, cannot complain that the defendant resorts to legal methods to

ascertain the existence and extent of such injuries.” Id. at 833.

¶ 63 The United States Supreme Court, in Camden, considered the application of New

Jersey’s statute on physical examination to a diversity case tried in federal court. The plaintiff

was a citizen of Pennsylvania, and the railway company was a corporation of New Jersey. The

plaintiff’s alleged injury occurred in Camden, New Jersey. When the case was called for trial,

defense counsel requested that the plaintiff submit to an examination by a “competent surgeon.”

Camden, 177 U.S. at 173. The plaintiff refused and the trial court held that “it had no power to

order the plaintiff to subject himself to examination by physicians against his will.” Id. The jury

returned a verdict for the plaintiff. The circuit court of appeals certified three questions for the

Supreme Court to address. The first two questions dealt with the issue of whether the statute

applied to a case tried in federal court. The third question asked, “ ‘[h]ad the Circuit Court the

legal right or power to order a surgical examination of the plaintiff?’ ” Id. The Supreme Court

held that the statute did apply. The Court also stated, “[t]here is no claim made that the statute

violates the Federal Constitution, and we are of [the] opinion that such a claim would have no

foundation, if made.” Id. at 175. The Supreme Court went on to add that the validity of the

statute had been affirmed by the supreme court of New Jersey in McGovern. It went on to say,

“[t]he opinion of the court [in McGovern] *** held that the act was within the power of the

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legislature, and was not an infringement upon the constitutional rights of the party.” Id. at 176.

The Court also noted that the validity of this type of statute had also been upheld in Lyon, where

the New York statute was “declared not to be in violation of the constitutional rights of the

party.” Id.

¶ 64 Forty-one years after Camden, the Supreme Court addressed the validity of federal Rule

35 in Sibbach. In that case, Sibbach brought an action in the Northern District of Illinois for

damages for bodily injury inflicted in Indiana. The defendant moved for a physical examination,

which the court ordered. Sibbach refused and was held in contempt. The circuit court held that

the order for a physical examination was valid and affirmed the judgment. The Supreme Court

granted certiorari because of the importance of the question involved. Sibbach, 312 U.S. at 7.

Sibbach maintained that the rule, while procedural, affected his substantive rights and was

therefore not within the power delegated to the Court by Congress. Id. at 13. The Court noted

that the courts of Indiana held that orders requiring physical examinations were proper, whereas

the courts of Illinois held that such an order could not be made. Id. The Court held that Rule 35

was a rule of procedure and therefore controlling in all district courts. Id. at 13-14. The Court

also rejected the fourth amendment challenge, stating:

“The suggestion that the rule offends the important right to freedom from invasion of the

person ignores the fact that as we hold, no invasion of freedom from personal restraint

attaches to refusal so to comply with its provisions. If we were to adopt the suggested

criterion of the importance of the alleged right we should invite endless litigation and

confusion worse confounded. The test must be whether a rule really regulates

procedure,—the judicial process for enforcing rights and duties recognized by substantive

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law and for justly administering remedy and redress for disregard or infraction of them.

That the rules in question are such is admitted.” Id. at 14.

¶ 65 In Schlagenhauf, the Court again rejected a fourth amendment challenge to federal Rule

35, which provided:

“ ‘Physical and Mental Examination of Persons. (a) Order for Examination. In an action

in which the mental or physical condition of a party is in controversy, the court in which

the action is pending may order him to submit to a physical or mental examination by a

physician. The order may be made only on motion for good cause shown and upon

notice to the party to be examined and to all other parties and shall specify the time,

place, manner, conditions, and scope of the examination and the person or persons by

whom it is to be made.’ ” Schlagenhauf, 379 U.S. at 106 (quoting Fed. R. Civ. P. 35).

¶ 66 Schlagenhauf was a bus driver who was involved in a rear-end collision with a tractor-

trailer. The passenger sued the bus company, Greyhound, and the owner of the trailer, Contract

Carriers. Contract Carriers alleged that Schlagenhauf was not mentally or physically capable of

driving a bus at the time of the accident. The attorney for Contract Carriers filed an affidavit

stating that “Schlagenhauf had seen red lights 10 to 15 seconds before the accident, that another

witness had seen the rear lights of the trailer from a distance of three-quarters to one-half mile,

and that Schlagenhauf had been involved in a prior accident.” Id. at 108. On the basis of the

petition filed by Contract Carriers, over objection and without a hearing, the trial court ordered

Schlagenhauf to submit to nine examinations, despite the fact that the petition requested only

four examinations. Schlagenhauf applied in the court of appeals for a writ of mandamus against

the district court judge. The court of appeals denied the writ. The Supreme Court granted

certiorari “to review undecided questions concerning the validity and construction of Rule 35.”

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Id. at 109. Schlagenhauf argued that “the application of the Rule to a defendant would be an

unconstitutional invasion of his privacy, or, at the least, be a modification of substantive rights

existing prior to the adoption of the Federal Rules of Civil Procedure and thus beyond the

congressional mandate of the Rules Enabling Act.” Id. at 112-13. The Supreme Court noted that

these same contentions were raised in Sibbach, where the Court rejected a fourth amendment

challenge by a plaintiff. Schlagenhauf acknowledged the holding in Sibbach, but argued that

Rule 35 “should not be extended to defendants.” Id. at 113. The Supreme Court disagreed,

stating:

“We can see no basis under the Sibbach holding for such a distinction. Discovery ‘is not

a one-way proposition.’ Hickman v. Taylor, 329 U.S. 495, 507. Issues cannot be

resolved by a doctrine of favoring one class of litigants over another.” Id.

¶ 67 The Schlagenhauf Court held that “Rule 35, as applied to either plaintiffs or defendants to

an action, is free of constitutional difficulty and is within the scope of the Enabling Act.” Id. at

114. The Court also made clear that in Sibbach both the majority and dissenting opinions agreed

that Rule 35 “could not be assailed on constitutional grounds.” Id. at 113.

¶ 68 After rejecting the constitutional claim, the Court discussed the construction of the rule.

The Court noted that the scope of discovery with respect to all discovery rules, including

physical and mental examinations of parties, “is limited by Rule 26(b)’s provision that ‘the

deponent may be examined regarding any matter, not privileged, which is relevant to the subject

matter involved in the pending action.’ ” (Emphases added and in original and omitted.) Id. at

117.

¶ 69 Mark James is correct that the Court discussed at length the application of Rule 35’s “in

controversy” and “good cause” requirements. However, it did so without ever discussing the

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fourth amendment. The Court made clear that mental and physical examinations should not be

ordered automatically, but only “upon a discriminating application by the district judge of the

limitations prescribed by the Rule.” Id. at 121. Had the Court been of the opinion that the fourth

amendment required a greater showing than relevance it would have said so and it would have

overruled its decision in Camden.

¶ 70 We now turn our attention back to Illinois, which was one of the last states to adopt a rule

providing for physical and mental examinations of parties. Even before the adoption of a

supreme court rule governing physical and mental examinations, the Illinois Supreme Court held

that trial courts in our state have inherent power to order physical examinations in appropriate

cases. People ex rel. Noren v. Dempsey, 10 Ill. 2d 288, 294-95 (1957). 3 That case was an

original action in mandamus challenging a trial court’s order requiring the plaintiff in a personal

injury action to submit to an examination by physicians. Id. at 288-89. The challenge to the

order was based upon the court’s alleged lack of power to enter it. Id. at 288. The supreme court

noted that it would consider pertinent cases that held the view that the courts lacked the power to

order physical examinations. Id. at 289-91. The court then commented, “[b]ut what is most

striking about [those cases] is that no reason for the asserted want of power has ever been stated,

nor has the problem ever been analyzed. It has been ipse dixit from the outset.” Id. at 292. The

court noted that it was clear that from the earliest times the common law “permitted and required

physical examinations where they were necessary. And other courts have recognized an inherent

power to require them when the ends of justice require.” Id. The court discussed possible

reasons for the prior Illinois opinions:

3 We are perplexed by the failure of the parties and the Attorney General to discuss this

important case in their briefs.

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“Two possible explanations of this treatment of the problem occur to us. Strong

feelings as to the ‘inviolability of the person’ (see the majority opinion in Union Pacific

Railway Co. v. Botsford, 141 U.S. 250 (1891),) may have been tacitly responsible. But

when one seeks to recover damages on the basis of his physical injuries he puts his

physical condition in issue. It becomes a fact to be proved, as much as the physical

conduct that gave rise to his injury, or the documents on which a right to recover is

asserted in a contract action. The basic principle that animates our law of evidence is that

what is relevant is admissible. Exceptions to that principle must justify themselves. If

there is to be exception here, it must be because a privilege exists. And a privilege in the

law of evidence, to be soundly based, must rest on considerations that make it more

desirable to risk concealment of the truth than to disrupt the values that the privilege

supports. No such considerations are involved in the ordinary physical examination in a

personal injury case.” Id. at 292-93.

The court continued that the other explanation was the doctrine of “ ‘lack of power,’ ” under

which courts felt that it was appropriate for the legislature and not the courts to decide whether

such examinations should be permitted. Id. at 293 (citing People ex rel. Wayman v. Steward,

249 Ill. 311, 316 (1911)). This view ignored common-law precedents and it “overlook[ed] the

power of our courts to regulate judicial procedure.” Id. “By decision, by rule of court, and by

statute, physical examination is almost everywhere permitted in appropriate cases.” Id. at 294.

Our supreme court could not have been more clear in Kunkel when it explained that, while a

person has a reasonable expectation of privacy in his personal characteristics, our constitution

“does not accord absolute protection against invasions of privacy. Rather, it is unreasonable

invasions of privacy that are forbidden.” (Emphasis omitted.) Kunkel, 179 Ill. 2d at 538. The

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court said that “[i]n the context of civil discovery, reasonableness is a function of relevance.” Id.

While the supreme court’s focus in Kunkel was the Civil Justice Reform Amendments of 1995,

the court’s analysis applies with equal force to Mark James’ Rule 215 challenge. The court

commented that “confidentiality of personal medical information is, without question, at the core

of what society regards as a fundamental component of individual privacy.” (Emphasis added.)

Id. at 537. However, “[i]t is reasonable to require full disclosure of medical information that is

relevant to the issues in the lawsuit.” Id. at 538.

¶ 71 We recognize that since 1995 two panels of our appellate court have indicated that a

showing of “good cause” is still required under Rule 215. See Fosse v. Pensabene, 362 Ill. App.

3d 172, 189-90 (2005); Copeland v. McLean, 327 Ill. App. 3d 855, 862 (2002). In both of those

cases, however, the courts accurately quoted the amended Rule 215 language, but cited and

relied upon cases interpreting the pre-1996 version of the rule.

¶ 72 In Jarke, 2011 IL App (4th) 110150, ¶ 29, the appellate court said that, where there was a

presumption of paternity and one sibling was attempting to disinherit another sibling, a trial court

should not order a DNA test unless there was a showing of “persuasive and credible” evidence

that would lead the court to believe that the DNA test would result in disinheritance. In the

instant case the trial court followed Jarke and found that Ryan had presented “ample evidence”

to meet that standard.

¶ 73 Rule 215 still requires that the movant produce sufficient information to meet the “in

controversy” and “relevance” requirements so that the trial judge can fulfill his function

mandated by the rule. An evidentiary hearing is not necessarily required, though a hearing may

be required in some cases. The showing “could be made by affidavits or other usual methods

short of a hearing.” Schlagenhauf, 379 U.S. at 119. Discovery should be denied when

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insufficient evidence suggests that the requested exam is relevant or will lead to relevant

evidence. See Manns v. Briell, 349 Ill. App. 3d 358 (2004). For all of these reasons, then, we

hold that Rule 215 does not violate the fourth amendment to the United States Constitution or the

privacy clause of the Illinois Constitution. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6.

¶ 74 B. Illinois Parentage Act

¶ 75 Mark James argues that the Parentage Act applies to this case because section 9(a) of the

Parentage Act provides that “[i]n any civil action not brought under this Act, the provisions of

this Act shall apply if parentage is at issue.” 750 ILCS 45/9(a) (West 2010). Mary argues that

this court does not have jurisdiction to consider Mark James’ claim that the Parentage Act

controls, because the appeal in this case is pursuant to Illinois Supreme Court Rule 304(b)(5)

(eff. Feb. 26, 2010), an appeal from an order holding Mark James in contempt. Additionally,

Mark James raised the applicability of the Parentage Act in his motion for judgment on the

pleadings, which was denied. “A ruling denying a motion for judgment on the pleadings is not

an appealable order.” Fabian v. Norman, 138 Ill. App. 3d 507, 509 (1985). In his reply brief,

Mark James claims that his assertion that the Parentage Act applies in this case relates to the trial

court’s subject matter jurisdiction. He argues that “[a]n action taken by a court that is without

subject matter jurisdiction is void and may be attacked at any time.”

¶ 76 We agree with Mary. “ ‘[S]ubject matter jurisdiction’ refers to the power of a court to

hear and determine cases of the general class to which the proceeding in question belongs.”

Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 334 (2002). Here, the

trial court clearly had subject matter jurisdiction.

“It is a well-settled right of a trustee that ‘[w]herever there is any bona fide doubt

as to the true meaning and intent of the provisions of the instrument creating the trust or

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as to the particular course which he ought to pursue, the trustee is always entitled to

maintain a suit in equity at the expense of the trust estate and obtain a judicial

construction of the instrument and directions as to his own conduct.’ ” (Internal

quotation marks omitted.) Bangert v. Northern Trust Co., 362 Ill. App. 3d 402, 408-09

(2005) (quoting Warner v. Mettler, 260 Ill. 416, 420 (1913)).

Mary was clearly entitled to bring this action in order to seek proper instruction from the court as

to who were the beneficiaries of the trust. Mark James argues that, under section 11(a) of the

Parentage Act, DNA tests requested by a party are limited to the DNA of the mother, the child,

and the alleged father. 750 ILCS 45/11(a) (West 2010). Mark James did not rely on the

Parentage Act as grounds for refusing to submit a DNA sample; therefore, he has forfeited

review of this issue. Forfeiture aside, this claim is meritless. To the degree that the Parentage

Act conflicts with Rule 215 regarding who may request or who may be ordered to submit to a

DNA test, the supreme court rule controls. People ex rel. Aldworth v. Dutkanych, 112 Ill. 2d

505, 510-11 (1986) (blood tests as a matter of discovery under Rule 215); People ex rel.

Coleman v. Ely, 71 Ill. App. 3d 701, 704 (1979) (blood tests).

¶ 77 C. Physical Condition

¶ 78 Mark James argues that his “inherited characteristics,” i.e., his alleged biological

relationship to Ryan, is not a physical condition within the meaning of Rule 215. He

acknowledges, however, that a long line of Illinois precedent dictates the opposite result.

Aldworth, 112 Ill. 2d at 511; Jarke, 2011 IL App (4th) 110150, ¶ 8; Zavaleta v. Zavaleta, 43 Ill.

App. 3d 1017, 1021 (1976).

¶ 79 We have no authority to overrule our supreme court. People v. Gersch, 135 Ill. 2d 384,

396 (1990). In Aldworth, the court unequivocally stated that Rule 215 “authorizes the tests as a

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matter of discovery.” Aldworth, 112 Ill. 2d at 510-11 (blood tests to determine paternity). Even

if the supreme court had not ruled on this issue, we would not agree with Mark James’ argument.

He claims that, because rules in 42 states and federal Rule 35 have been amended to specifically

include tests for inherited characteristics, and because Illinois Rule 215 has not been so amended,

“the authority to order tests to determine inherited characteristics is outside the scope of the

rule.” This argument has no merit whatsoever. Our discovery rules “were designed to be

flexible and adaptable to the infinite variety of cases and circumstances appearing in the trial

court.” Atwood v. Warner Electric Brake & Clutch Co., 239 Ill. App. 3d 81, 88 (1992). Rule

215 operates at the intersection of justice and science. The rules committee and the supreme

court were wise not to amend the rule. Had they done so we would no doubt see more arguments

like Mark James’ based on the rule of construction expressio unius est exclusio alterius (the

mention of one thing implies exclusion of another). Parties in civil litigation “may obtain by

discovery full disclosure regarding any matter relevant to the subject matter involved.” Ill. S. Ct.

R. 201(b)(1) (eff. July 1, 2002). In this case, as in many cases, the parties have taken advantage

of the rules to discover information that would be otherwise highly personal and confidential.

Mark James, for example, took full advantage in his Illinois Supreme Court Rule 213 (eff. Jan. 1,

2007) interrogatories of Elida to learn the intimate details of her relationship with Mark Kaull.

Mark James relies upon some of these answers in his brief before this court. It would be

manifestly unfair to Ryan to allow Mark James to use liberal discovery as a sword on the one

hand and on the other hand shield private, yet relevant, information of his own. The purpose of

full discovery is not only to level the playing field but also to seek the truth so that cases are

decided based on the facts revealed, not on what information is concealed. People v. Tally, 2014

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IL App (5th) 120349, ¶ 27 (the purpose of discovery rules is to prevent unfair surprise or

advantage and to aid in the search for the truth).

¶ 80 D. Compliance With Rule 215

¶ 81 In the alternative, Mark James argues that, assuming Rule 215 is constitutionally sound,

the trial court abused its discretion in ordering DNA testing, because Elida and Ryan’s motion

“neither strictly nor substantially” complied with Rule 215’s requirements. He also argues,

relying on Jarke, that there was no “clear and persuasive evidence” to support the trial court’s

order. Finally, he argues that Elida and Ryan’s motion did not include a statement of compliance

with Illinois Supreme Court Rule 201(k) (eff. July 1, 2002) (statement that reasonable attempts

to resolve differences have been made). Each of these claims is without merit.

¶ 82 Although a “good cause” requirement has been eliminated from Rule 215, physical and

mental examinations, like all of our discovery devices, require that trial courts carefully exercise

their discretion. Trial courts must balance the relevance of and need for the requested disclosure

against any excessive burden or hardship. A trial court’s ruling on the grant or denial of a Rule

215 request is reviewed for an abuse of discretion. J.S.A. v. M.H., 384 Ill. App. 3d 998, 1006

(2008).

¶ 83 The record demonstrates that, well before the hearing on Elida and Ryan’s motion, Mark

James made it clear to opposing counsel and to the trial court that he would object to an order

requiring him to submit to DNA testing, based upon his constitutional argument. Mark James

informed the trial court, “I do want to let you know, Your Honor, that Mr. Meyer and I have

been talking. He has been great to work with. The professional courtesy and all that, that’s the

way lawyers should behave.” Regarding compliance with the specific requirements of Rule 215,

the trial court directed counsel to include the name of the testing agency and other information in

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the proposed order. Counsel for Ryan submitted an order that complied with Rule 215’s

requirements, which was entered over Mark James’ objection. In any event, failure to follow the

specific requirements of Rule 215 may be corrected on remand with a specific order. Harris v.

Mercy Hospital, 231 Ill. App. 3d 105, 109 (1992).

¶ 84 Mark James argues that the evidence presented for the Rule 215 order was insufficient as

a matter of law because Elida “judicially admitted” facts that gave rise to the presumption that

Ralph is Ryan’s father. He argues that there is no chain of custody for the 2009 home DNA tests

and that the hearsay affidavits are unreliable under Jarke. We reject these arguments. The

Parentage Act provides that the marital presumptions of paternity are rebuttable. People ex rel.

the Department of Public Aid v. Smith, 212 Ill. 2d 389, 404 (2004). The affidavits of Elida and

Ralph rebut the presumption that Ralph is Ryan’s father. Tersavich v. First National Bank &

Trust Co., 143 Ill. 2d 74, 80-81 (1991); People ex rel. Davis v. Clark, 99 Ill. App. 3d 979, 980-81

(1981). The presumption’s having been rebutted leaves the issue of whether Mark is Ryan’s

father.

¶ 85 As we have stated, the trial court has broad discretion under Rule 215 in determining

whether a sufficient showing of relevance has been made. Mark James’ argument that the

evidentiary standards for chain of custody must be met before a trial court can consider a DNA

lab report would defeat the purpose of the rule. We find no abuse of discretion by the trial court

in considering the report as part of Elida and Ryan’s showing of relevance.

¶ 86 Mark James relies on Jarke for the proposition that the hearsay affidavits in this case are

unreliable. Jarke is inapposite. In Jarke, the movant presented two hearsay affidavits, one from

the movant herself, and the other from a 17-year-old who lived with the movant. The appellate

court determined that these affidavits constituted an insufficient showing under Rule 215 to order

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DNA testing, especially in light of the presumption of paternity that “has deep roots in the

common law.” Jarke, 2011 IL App (4th) 110150, ¶ 25. This was especially true in light of the

evidence presented by the respondent to the motion, which included the deposition of the

children’s mother, which corroborated the presumption of paternity. Id. ¶ 32.

¶ 87 Unlike the affidavits in Jarke, the evidence submitted by Elida and Ryan was very

reliable. We note that, although a movant’s relevancy showing need not be based upon evidence

that would be admissible at trial, the statements attributed to Mark Kaull, as well as his note to

the Texas Department of Human Services wherein he claimed to be Ryan’s father, fell under

Illinois Rule of Evidence 804(b)(4) (eff. Jan. 1, 2011). That rule provides, in relevant part:

“(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if

the declarant is unavailable as a witness:

***

(4) Statement of Personal or Family History.

(A) A statement concerning the declarant’s own birth, adoption,

marriage, divorce, legitimacy, relationship by blood, adoption, or

marriage, ancestry, or other similar fact of personal or family history, even

though declarant had no means of acquiring personal knowledge of the

matter stated.” (Emphasis added.) Ill. R. Evid. 804(b)(4)(A) (eff. Jan. 1,

2011).

The trial court properly relied on this information in granting Ryan’s Rule 215 motion.

¶ 88 Finally, we reject Mark James’ argument that there must be a showing of strict

compliance with Rule 201(k) in order for the trial court to order an examination pursuant to Rule

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215. Mark James cites Williams v. A.E. Staley Manufacturing Co., 83 Ill. 2d 559 (1981), in

support of this argument. In Williams, our supreme court stated:

“In proper circumstances Rule 201(k) might be satisfied by a showing of active, but

unsuccessful, efforts to contact, and proof of telephone calls unreturned or letters

unanswered might, in some instances, suffice. There is, however, nothing of that type in

this case.” Id. at 566.

¶ 89 It is clear from the record that counsel for Elida and Ryan and Mark James had been in

regular contact during the three months between the filing of Elida and Ryan’s motion pursuant

to Rule 215 and Mark James’ objections, which were filed late. Counsel for Mark James

actually praised Mr. Meyer for his professionalism. The trial court found that requiring a

statement pursuant to Rule 201(k) in submitted by Elida and Ryan’s motion would be “an

exercise in futility.” See Hartnett v. Stack, 241 Ill. App. 3d 157, 174 (1993). Like in Hartnett,

the record shows “an adamant refusal to budge” by Mark James. Id. During argument on the

Rule 201(k) issue, the court commented to counsel for Mark James, “and you told me you were

going to take it up on appeal if I ordered this.”

¶ 90 We agree with the trial court that compliance with Rule 201(k) was unnecessary given

the record in this case. That being said, we remind trial counsel that, except in unique

circumstances, compliance is required.

¶ 91 E. Contempt Finding

¶ 92 Based on the above rationale we uphold the trial court’s Rule 215 order requiring Mark

James to submit a DNA sample. However, in light of the trial court’s finding that Mark James’

refusal to comply with the Rule 215 order was made in good faith to challenge the

constitutionality of the rule, we vacate the contempt order. Dufour, 301 Ill. App. 3d at 162-63.

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¶ 93 III. CONCLUSION

¶ 94 For the foregoing reasons, we hold that Rule 215 is constitutional under the fourth

amendment to the United States Constitution as well as under the Illinois Constitution’s privacy

clause. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. We also hold that the requirements

of Rule 215 apply to a request for DNA testing in a trust case to determine beneficiaries and that

inherited characteristics are considered a “physical condition” under that rule. Further, the trial

court did not abuse its discretion in ordering a DNA test in this case. The record demonstrates

compliance with both Rules 201(k) and 215. Finally, based upon the trial court’s finding of

“good faith,” we vacate the contempt ruling. Accordingly, the trial court’s judgment is affirmed

in part and vacated in part, and this cause is remanded for further proceedings consistent with

this opinion.

¶ 95 The judgment of the circuit court of Winnebago County is affirmed in part and vacated in

part, and this cause is remanded.

¶ 96 Affirmed in part and vacated in part; cause remanded.

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