                                  Illinois Official Reports

                                          Appellate Court



                               Kaull v. Kaull, 2014 IL App (2d) 130175



Appellate Court              MARY K. KAULL, as Trustee of the Barbara B. Kaull Trust u/a/d
Caption                      July 17, 2007, Petitioner-Appellee, v. SARAH KAULL,
                             Respondent-Appellant (Mark James Kaull, Respondent-Appellant;
                             Ryan Donald Schrader, a Minor, and Elida Ochoa, as Mother and Next
                             Friend of Ryan Donald Schrader, Respondents).



District & No.               Second District
                             Docket No. 2-13-0175


Filed                        December 22, 2014
Modified upon denial
of rehearing                 January 27, 2015



Held                         In an action by the trustee of decedent’s trust seeking to determine the
(Note: This syllabus         beneficiaries of the trust, respondent was properly held in contempt
constitutes no part of the   for refusing to submit a DNA sample pursuant to Supreme Court Rule
opinion of the court but     215 for testing to determine whether he was decedent’s grandson and a
has been prepared by the     beneficiary of her trust, but based on the finding that respondent acted
Reporter of Decisions        in good faith in appealing the trial court’s decision, the order finding
for the convenience of       respondent in contempt was vacated.
the reader.)



Decision Under               Appeal from the Circuit Court of Winnebago County, No.
Review                       11-MR-594; the Hon. Lisa R. Fabiano, Judge, presiding.



Judgment                     Affirmed in part and vacated in part; cause remanded.
     Counsel on              Richard B. Kirk and Michael J. Schirger, both of Schirger Law
     Appeal                  Offices, LLC, of Rockford, for appellant.

                             Laura D. Mruk, of WilliamsMcCarthy LLP, of Rockford, for appellee
                             Mary K. Kaull.

                             Nicholas O. Meyer, of Meyer & Horning, P.C., of Rockford, for
                             appellees Elida Ochoa and Ryan Donald Schrader.

                             Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                             Solicitor General, and Clifford W. Berlow, Assistant Attorney
                             General, of counsel), for appellee Illinois Attorney General.



     Panel                   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 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 descendents, 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



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       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.
¶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
       biweekly 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
       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.



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¶ 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 B.
       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 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”; and
                   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


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       courts would still require a “good cause” showing, but if there was such a requirement there
       was enough evidence here to warrant compelling both Mary1 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 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 the parties 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.”
¶ 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

          1
            Although Mary and Mark Kaull have the same biological mother, Barbara Kaull, they do not share
       the same biological father. Despite that undisputed fact, she agreed to submit a DNA sample.

                                                    -5-
       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).
¶ 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 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.



                                                    -6-
¶ 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)).
¶ 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

                                                   -7-
       (1980), which held 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.
¶ 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

                                                  -8-
       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 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 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

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       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 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. at 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 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

                                                   - 10 -
       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
       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 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).


                                                 - 11 -
¶ 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.
¶ 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 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

                                                  - 12 -
       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.
¶ 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 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

                                                   - 13 -
       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 rulemaking 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 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 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

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

                                                    - 14 -
       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 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 principles 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 § 15:2, at 431 (2d ed. 2008).
¶ 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.
                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


                                                  - 15 -
               [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, 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 Railway Co. v. Botsford, 141 U.S. 250;
               McQuigan v. D., L.&W. 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).
¶ 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

                                                  - 16 -
       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 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 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:

                                                   - 17 -
               “ ‘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.” 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
       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

                                                  - 18 -
       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:
                    “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

           3
            We are perplexed by the failure of the parties and the Attorney General to discuss this important
       case in their briefs.

                                                     - 19 -
       omitted.) Kunkel, 179 Ill. 2d at 538. The 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 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.”


                                                   - 20 -
¶ 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 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 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

                                                   - 21 -
       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 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 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, 143 Ill. 2d 74, 80-81 (1991); People ex rel. Davis v.

                                                   - 22 -
       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 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 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

                                                   - 23 -
       a statement pursuant to Rule 201(k) in 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.

¶ 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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