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

IN THE APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

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

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

OPINION

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

Trust, to identify beneficiaries of the trust. Respondent Mark James Kaull (Mark James) was held in contempt of court for his refusal to submit a DNA sample, which the trial court ordered pursuant to Illinois Supreme Court Rule 215 (eff. Mar. 28, 2011) in order to determine whether respondent Ryan Donald Schrader (Ryan) and Mark James have the same biological father, Mark

Kaull. On appeal, Mark James argues that he acted in good faith in refusing to submit a DNA

2014 IL App (2d) 130175 sample on the grounds that: (1) Rule 215 is facially unconstitutional because it no longer requires a showing of “good cause”; (2) section 9(a) of the Illinois Parentage Act of 1984 (Parentage Act)

(750 ILCS 45/9(a) (West 2010)) applies to this case to the exclusion of Rule 215; (3) inherited characteristics are not “physical conditions” within the meaning of Rule 215; and (4) the motion and the trial court’s order for DNA testing did not comply with Rule 215. For the following reasons, we affirm.

¶2 I. BACKGROUND

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

death, Barbara established the Barbara B. Kaull Trust, which stipulated that after her death the trust assets were to be divided “into separate shares equal in value, one for each then living child of mine and one for the decedents, collectively, of each deceased child of mine.” Barbara had

three children: Mary, Sarah, and Mark Kaull. Mary became trustee of the trust on April 13, 2011. Mark Kaull predeceased Barbara. There is no dispute that Mark James is Mark Kaull’s son. At issue in this case is whether Mark James is Mark Kaull’s only son.

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

“Petition for Instructions” seeking a judicial determination as to the proper beneficiaries and administration of the trust. In the petition Mary stated that there was a bona fide doubt as to whether Mark James is Mark Kaull’s only child. Mary alleged that a bona fide doubt existed because on March 4, 2010, the Texas Attorney General filed a “Petition to Establish the Parent-

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

Kaull was Ryan’s father. A hearing on the petition was scheduled for August 6, 2010. However, Mark Kaull died on April 3, 2010. On the date the petition was to be heard the Attorney General dismissed the petition without prejudice.

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¶5 Elida Ochoa, Ryan’s mother, responded to the petition on behalf of her son. In the response, Elida alleged that Ryan was Mark Kaull’s son and Mark James’ brother and therefore an heir of Barbara and a beneficiary of the Barbara B. Kaull Trust. She admitted that she had been married to Ralph Hans Schrader and that Ralph was listed as Ryan’s father on his birth certificate. However, she stated that she and Ralph had been living separate and apart since June

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

¶6 Elida attached several exhibits to the response, including her affidavit in which she alleged that Mark Kaull was Ryan’s biological father. Elida also stated that a DNA home

paternity test sent to the Identigene DNA Testing Center in Salt Lake City, Utah (Identigene), excluded Ralph and confirmed Mark Kaull as Ryan’s biological father. A copy of the report was attached to the response.

¶7 Also attached to the response was a handwritten notarized document entitled “Deposition by Ralph Schrader,” which he signed. In the document, Ralph stated that he was married to

Elida when Ryan was conceived but had not been living with her since June 2008. Ralph stated that he lived in Illinois and Elida lived in Texas. Ralph also stated that “on or about November

12, 2009” he participated in a DNA test with Ryan and Elida, that Mark Kaull was also present, and that Mark also conducted a similar test. Ralph stated that the results of his DNA test indicated that he could not be Ryan’s natural father. Ralph further stated that Mark Kaull told him that he had a sexual relationship with Elida and that the DNA test indicated that he was

Ryan’s natural father. Ralph said that Mark Kaull told him that he was paying bi-weekly child support for Ryan and intended to “fulfill all usual fatherly duties.”

¶8 The DNA report from Identigene stated that 99.9% of Caucasian men were excluded from paternity and that Mark Kaull could not be excluded as Ryan’s father. The report also

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2014 IL App (2d) 130175 stated that the “transport and testing” were not performed in compliance with established chain- of-custody guidelines.

¶9 Elida also attached a handwritten note to the response to the petition. The note was purportedly signed by Mark Kaull and stated:

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

Ryan D. Schrader. Sincerely, Mark Kaull.”

¶ 10 Mark James also filed a response to the petition. In his response, he denied that Ryan was Mark Kaull’s child. He also alleged that he was Mark Kaull’s only child.

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

to section 2-615(e) of the Code of Civil Procedure. 735 ILCS 5/2-615(e) (West 2010). In the motion, Mark James argued that Mary’s petition put Ryan’s parentage at issue and therefore the provisions of the Parentage Act applied. 750 ILCS 45/9(a) (West 2010). He argued that Mary

did not have standing under the Parentage Act, because she did not have custody of Ryan and was not providing financial support to him. He also argued that he was entitled to judgment on

the pleadings because Elida had not rebutted the presumption of paternity by clear and convincing evidence as required under the Parentage Act. 750 ILCS 45/5(b) (West 2010). He requested that the trial court “instruct that petitioner, Mary K. Kaull, and respondents Sarah

Kaull and Mark James Kaull, are the only beneficiaries of the Barbara K. Kaull Trust, and [direct] petitioner to distribute the trust estate according to the terms of the trust.”

¶ 12 Mary filed a response to Mark James’ motion for judgment on the pleadings. In her response, she asserted that her petition was proper and that the Parentage Act did not apply to a determination of heirship. Elida and Ryan also filed a response to Mark James’ motion as well

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2014 IL App (2d) 130175 as a counterpetition for declaratory judgment. On May 8, 2012, the trial court denied Mark

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

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

215. In the motion, they stated that a bona fide doubt existed as to whether Mark Kaull was the biological father. Elida and Ryan also alleged that sufficient facts existed to establish good cause to order Mary and Mark James to submit to DNA testing. They further alleged that a positive

DNA test would be substantial proof that Mark James and Ryan were biological siblings. Mary and Mark James were granted leave to file a response on or before January 11, 2013. Argument on the motion was scheduled for January 25, 2013.

¶ 14 On January 23, 2013, Mark James filed an objection to Elida and Ryan’s motion for DNA testing as well as a “Notice of Filing Rule 19 Notice of Claim of Unconstitutionality.” The notice was sent to the attorneys for Mary, Mark James, and Ryan and the Illinois Attorney

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

1. The motion does not suggest the identity of the examiner, nor does it set forth the examiner’s specialty or discipline;

2. The motion does not state that counsel have attempted to resolve this dispute prior to court intervention as Illinois Supreme Court Rule 201(k) (eff. Jan. ^[1], 2013) mandates;

3. Even if otherwise sufficient, the evidence in this matter is not persuasive and credible enough to support it;

4. Rule 215 does not apply to paternity issues, because a familial relationship is not a “physical condition”;

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5. Rule 215 is unconstitutional on its face because it no longer requires that movants show even good cause.

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

Counsel for Ryan and Elida argued that the application of Rule 215 in paternity actions had been approved by the appellate and supreme courts. Counsel also argued that the rule no longer set out a requirement of good cause or a burden of proof and that it just gave the court discretion on whether to order an examination. Counsel argued that it was unclear whether courts would still require a “good cause” showing, but if there was such a requirement there was enough evidence here to warrant compelling both Mary 1 and Mark James to submit to a DNA test.

¶ 16 Counsel for Mark James acknowledged that “the court most likely is bound by rulings of the supreme court that [Rule] 215 does authorize trial courts to order DNA tests.” However, he

maintained that Rule 215 was unconstitutional “under the Illinois Constitutional invasions of privacy without any showing of cause whatsoever.” Counsel argued alternatively that the standard that should be applied is “credible, persuasive evidence” pursuant to Jarke v. Mondry, 2011 IL App (4th) 110150. Counsel argued that the evidence was insufficient because in her response to the petition Elida admitted facts that gave rise to a presumption that the “legally presumed father here” was Ralph. Counsel added that the DNA test results submitted by Elida were not admissible, because there was no chain of custody. The trial court commented that

Mark James’ argument would create a situation where a person had to prove that he was the biological father before he could have a DNA test. Counsel argued that, as in Jarke, Elida and Ryan were relying on Mark Kaull’s statements to others that he was Ryan’s father, which were

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2014 IL App (2d) 130175 hearsay. The trial court ruled that the statements were admissible and that counsel could cross- examine the witnesses on whether the statements were actually made.

¶ 17 The trial court asked Mark James’ counsel whether he was arguing that under Rule 215 the court had discretion to order a DNA test, and counsel replied in the affirmative. The trial court, after conferring with counsel, stated that it would follow Jarke, as it was the only case addressing the issue of what type of showing was required by Rule 215 for ordering a DNA test.

¶ 18 Counsel for Ryan and Elida argued that the evidence submitted in support of the motion for DNA testing had not been rebutted and that it was ample to order the test. Counsel also argued that Mark James’ fourth-amendment argument was not supported by case law other than criminal cases. Counsel argued that it was a general rule that a DNA test performed by swabbing

a person’s mouth was not unreasonable. With respect to Mark James’ Rule 201(k) argument, the trial court concluded that ordering the test would seem to be “just an exercise in futility” given

the fact that Mark James’ counsel had stated that he was going to appeal if the court ordered the test. With respect to the technical requirements of Rule 215 (naming the examiner, etc.), counsel for Ryan and Elida stated that there was no prejudice and that he would submit an order that complied with Rule 215.

¶ 19 The trial court ruled that it had the discretion to order a DNA test in this situation. The court summarized the evidence and found that it was ample to order the test despite the discrepancies. The court directed Mary’s counsel to submit an order that fulfilled the requirements of Rule 215. Counsel for Mark James stated, “I do expect we’ll refuse to take the test, and I’ll ask you, you know, at our next hearing, to give us a good faith contempt and we’ll appeal it.”

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¶ 20 On February 1, 2013, Mark James refused to comply with the court’s order that he submit to the collection of a DNA sample. The court found him in indirect civil contempt and ordered a penalty of $100 plus $1 per day until his compliance with the order. The court found that his refusal to comply was made in good faith to pursue an appeal of the contempt order. Mark

James then filed a timely notice of appeal. On February 8, 2013, Mark James filed a notice to the Illinois Attorney General pursuant to Illinois Supreme Court Rule 19 (eff. Sept. ^[1], 2006) that he intended to challenge the constitutionality of Rule 215. We granted the Attorney General’s motion to intervene on April 13, 2013.

¶ 21 II. ANALYSIS

¶ 22 We are called upon to determine whether Mark James was justified in refusing to obey the trial court’s order requiring him to provide a DNA sample pursuant to Rule 215. Discovery orders are not final orders and are not ordinarily appealable. However, the correctness of a

discovery order may be tested through contempt proceedings. Norskog v. Pfiel, 197 Ill. 2d 60, 69 (2001). We have jurisdiction over this appeal pursuant to Illinois Supreme Court Rule

304(b)(5) (eff. Feb. 26, 2010). Review of the trial court’s contempt finding requires our review of the order on which it was based. Discovery orders are ordinarily reviewed for a manifest abuse of discretion. Maxwell v. Hobart Corp., 216 Ill. App. 3d 108, 110 (1991). This appeal involves a constitutional challenge to Rule 215 as well as issues of construction of the Parentage

Act. These are matters of law, which we review de novo. Clark v. Illinois State Board of Elections, 2014 IL App (1st) 141937, ¶ 15 (constitutionality is a pure question of law, which we review de novo); Nelson v. Kendall County, 2014 IL 116303, ¶ 22 (issues of statutory construction are reviewed de novo).

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¶ 23 We are also called upon to decide whether, assuming we reject Mark James’ constitutional claim and determine that Rule 215 applies in this case, the trial court abused its discretion in ordering a DNA test.

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

comply with Rule 19 in the trial court. That rule requires that in any cause challenging the constitutionality of a statute, ordinance, administrative regulation, or other law affecting the public interest, where the State or political subdivision, agency, or officer affected is not already

a party, the litigant raising the constitutional issue shall serve an appropriate notice on the Attorney General. See Ill. S. Ct. R. 19(a) (eff. Sept. ^[1], 2006). The purpose of the notice is to afford the Attorney General the opportunity, but not the obligation, to intervene for the purpose of defending the constitutionality of the law that is being challenged.

¶ 25 Mark James’ purported notice pursuant to Rule 19 in the trial court was mailed to the Attorney General on January 23, 2013, for a hearing that was scheduled for January 25, 2013.

Illinois Supreme Court Rule 12(c) (eff. Jan. 4, 2013) provides that “[s]ervice by mail is complete four days after mailing.” Local rule 10.03 of the Seventeenth Judicial Circuit provides that

“service of notice of hearing must be perfected by 4:00 P.M. of the second court day preceding the hearing of the motion.” 17th Judicial Cir. Ct. R. 10.03 (Oct. 1991). Strict compliance with

Rule 19 is generally required. Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 116 (2004). In this case, it is clear that Mark James did not strictly comply with the rule, which may result in forfeiture. Id. at 119. However, failure to comply with Rule 19 does not deprive this court of jurisdiction to consider the constitutional issue. Id. In this case, although Mark James failed to comply with Rule 19’s notice requirements for the January 25, 2013, hearing, he did serve an

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appropriate notice on the Attorney General for purposes of this appeal. Therefore, in the exercise of our discretion we will consider the merits of this appeal.

¶ 26 A. Federal and State Constitutional Violations

¶ 27 Mark James argues that Rule 215 is unconstitutional under both the federal and Illinois constitutions. The constitutionality of Rule 215 is an issue of first impression. In fact, our research has not uncovered a single case from any jurisdiction holding that a state supreme court discovery rule violates the fourth amendment. Here, Mark James claims that Rule 215 allows

the court to order searches, seizures, and (with respect to the Illinois Constitution) invasions of privacy without a showing of any cause whatsoever. He argues that it would be improper for this

court to read into the rule a “good cause” or “persuasive and credible evidence” standard, because its drafters clearly intended that no such showing is required.

¶ 28 Supreme court rules are adopted to facilitate the work of the courts and they have the force of law. Harris v. Annunzio, 411 Ill. 124, 127 (1952). There is a presumption that the rules will be obeyed and enforced as written. People v. Glasper, 234 Ill. 2d 173, 189 (2009). Toward this end, we interpret supreme court rules in the same manner as statutes. See Ill. S. Ct. R. 2(a)

(eff. May 30, 2008); People v. Blair, 2011 IL App (2d) 070862, ¶ 33. In analyzing Rule 215, our task is to ascertain and give effect to the intention of the drafters. People v. Thompson, 238 Ill.

2d 598, 606 (2010). The best indication of intent is the language of the rule, given its plain and ordinary meaning. Id. (citing People v. Marker, 233 Ill. 2d 158, 165 (2009)). When a rule’s

language is clear and unambiguous, it will be applied as written without resort to aids of construction. Id. (citing People v. Campbell, 224 Ill. 2d 80, 84 (2006)). Our interpretation is de novo. Id. (citing People v. Suarez, 224 Ill. 2d 37, 41-42 (2007)).

- 10 - 2014 IL App (2d) 130175 ¶ 29 As with statutes, there is a strong presumption that a court rule is constitutional, and the party challenging its constitutionality bears the burden of clearly establishing that the rule violates the constitution. See People v. Kitch, 239 Ill. 2d 452, 466 (2011). We must construe the challenged rule in a manner that upholds its constitutionality, if reasonably possible. See People v. Hollins, 2012 IL 112754, ¶ 13. A facial challenge is the most difficult to make. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 305 (2008). In a facial challenge, the party must establish that no set of circumstances exists under which the rule would be valid. United States v. Stevens, 559 U.S. 460, 472 (2010). Illinois Supreme Court Rules 201 through 224, the rules of discovery, are designed to be “flexible and adaptable to the infinite variety of cases and circumstances appearing in the trial courts.” Monier v. Chamberlain, 35 Ill. 2d 351, 355 (1966). The objective under the discovery rules is to obtain the “ ‘expeditious and final determination of controversies in accordance with the substantive rights of the parties.’ ” Sarver v. Barrett Ace Hardware, Inc., 63 Ill. 2d 454, 460 (1976) (quoting Monier, 35 Ill. 2d at 357). ¶ 30 Mark James advances the theory that the 1996 amendment to Rule 215, which eliminated the “good cause” requirement for seeking a physical or mental examination of a party, is unconstitutional because it intrudes without restriction on a fundamental right—the right to be free from unreasonable searches and seizures under the fourth amendment to the federal constitution and the right to privacy under article I, section 6, of the Illinois Constitution. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. The Attorney General argues that Mark James cannot mount such a challenge, because the protections of the fourth amendment as well as the right to privacy under the Illinois Constitution apply only to state action. People v. Phillips, 215 Ill. 2d 554, 566 (2005); People v. Clements, 80 Ill. App. 3d 821, 824 (1980). The Attorney General relies on Union Oil Co. of California v. Hertel, 89 Ill. App. 3d 383 (1980), which held - 11 - 2014 IL App (2d) 130175 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. - 12 - 2014 IL App (2d) 130175 ¶ 33 There is no question that our supreme court is a state actor. The question before us is whether the court’s action in amending Rule 215 was sufficiently significant so that Mark James can invoke the protection afforded by the fourth amendment. See USA I Lehndorff Vermoegensverwaltung GmbH & Cie v. Cousins Club, Inc., 64 Ill. 2d 11, 18 (1976). In Illinois, “once a lawsuit has been filed, and all parties have appeared, the pretrial search for matters relevant to the pending litigation is controlled by discovery rules promulgated” by our supreme court. Bruske v. Arnold, 44 Ill. 2d 132, 135 (1969). Under the Illinois Constitution, the Illinois Supreme Court “retains primary constitutional authority over court procedure.” Kunkel v. Walton, 179 Ill. 2d 519, 528 (1998). ¶ 34 In Kunkel, the Illinois Supreme Court considered the constitutionality of section 2- 1003(a) of the Code of Civil Procedure (735 ILCS 5/2-1003(a) (West 1994)) as amended by the Civil Justice Reform Amendment of 1995 (Pub. Act 89-7 (eff. Mar. 9, 1995)). Section 2-1003(a) provided that any party who alleged a claim for bodily injury or disease shall be deemed to waive any privilege of confidentiality with his or her health care provider. Kunkel, 179 Ill. 2d at 523. The section also provided that, upon request of the other party, the party claiming injury shall sign and deliver consent forms authorizing health care providers to disclose records and to engage in ex parte conferences with the requesting party’s attorneys. Id. at 523-24. In Kunkel, the defendants argued that the provisions of section 2-1003(a) “[did] not run afoul of the prohibition of unreasonable invasions of privacy because, according to defendants, that prohibition ‘does not apply to actions between private parties.’ ” Id. at 539. The supreme court rejected this argument, stating: “However, section 2-1003(a) provides for state action as the means to compel the disclosure of constitutionally protected medical information: where a party fails to tender a consent the trial court may either dismiss the lawsuit or enter an order - 13 - 2014 IL App (2d) 130175 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 - 14 - 2014 IL App (2d) 130175 discovery order in a civil case between private parties. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (appellate brief shall contain the appellant’s argument with citation of the authorities relied upon). Mark James’ argument is textual. He argues simply that, because Federal Rule of Civil Procedure 35 and the rules in 44 states require “good cause” for a physical or mental examination to be ordered, Illinois Rule 215 must be unconstitutional. ¶ 36 Elida, Ryan, and the Attorney General cite Hertel for the proposition that the fourth amendment does not apply to discovery orders in civil actions between private parties. In reply, Mark James argues that Hertel is “weak” because: (1) it has not been relied upon by any other court; and (2) it involved an order for a “handwriting sample,” which is not a search under the fourth amendment. ¶ 37 Our own research has discovered a number of Illinois cases where reviewing courts have applied the fourth amendment to discovery orders in civil cases between private parties. Most of those cases were decided before the modern rules of discovery were adopted in 1963. Monier v. Chamberlain, 31 Ill. 2d 400, 403 (1964). Monier involved a direct appeal to the Illinois Supreme Court from an order holding the defendants in contempt for their failure to produce documents for inspection and copying. The appeal was taken directly to the Illinois Supreme Court on the ground that the order violated due process and the state and federal constitutional guarantees against unreasonable searches and seizures. Id. at 401. The defendants relied upon several cases in which the Illinois Supreme Court had reviewed contempt orders on direct review under “ ‘procedural doctrines which had exalted the role of a trial as a battle of wits and subordinated its function as a means of ascertaining the truth.’ ” Id. (quoting Krupp v. Chicago Transit Authority, 8 Ill. 2d 37, 41 (1956)). The court then stated, “whatever the judicial climate that - 15 - 2014 IL App (2d) 130175 prevailed when they were decided, the cases relied upon do not indicate the existence of a substantial constitutional question in the present case.” Id. ¶ 38 The Monier court discussed a case from 1890, Lester v. People, 150 Ill. 408, 419 (1890), which involved an order that was alleged to be unconstitutional because it required the surrender of “books of a party” to a third person for an indefinite period of time. Next, the Monier court discussed Denison Cotton Mill Co. v. Schermerhorn, 257 Ill. 128 (1912), which involved an order that was allegedly too broad, in that it called for the production of books and records that were not pertinent or material to the issues in that case. Monier, 31 Ill. 2d at 402. In 1928, the supreme court set aside a contempt order because there was no showing of materiality and the order left to the attorneys’ discretion what they would inspect and what was material or immaterial to the issue. Carden v. Ensminger, 329 Ill. 612, 622 (1928). ¶ 39 In citing Carden, Lester, and Denison, the Monier court stated that “[t]hese cases demonstrate that even before the adoption of the Civil Practice Act in 1933, the boundaries of the area constitutionally protected against unreasonable search and seizure were fixed at the limits of relevance.” Monier, 31 Ill. 2d at 402. The Monier court also explained that in Krupp “we pointed out that discovery before trial ‘presupposes a range of relevance and materiality which includes not only what is admissible at the trial, but also that which leads to what is admissible at trial.’ ” Id. 403 (quoting Krupp, 8 Ill. 2d at 41). The court declined to consider the issue concerning the scope of discovery in Monier because it did not present any debatable constitutional issue, and it transferred the case to the appellate court. Id. at 404-05. The court reiterated what it had previously held regarding discovery rules: “[W]e said that the discovery rules ‘were adopted as procedural tools to effectuate the prompt and just disposition of litigation, by educating the parties in advance of trial as to - 16 - 2014 IL App (2d) 130175 the real value of their claims and defenses. As noted by legal scholars, those rules will suffice for present needs if lawyers and judges will use them with an understanding of that purpose.’ ” Id. at 403 (quoting People ex rel. Terry v. Fisher, 12 Ill. 2d 231, 236 (1957)). ¶ 40 A few years after Monier, the supreme court again declined to consider a claim that discovery orders violated the “constitutional rights against unreasonable searches and seizures, because they deprived defendant of its property without due process of law, and because their entry was attended by a lack of procedural due process with respect to notice and hearing.” People ex rel. General Motors Corp. v. Bua, 37 Ill. 2d 180, 195 (1967). In Bua, the court said that it would not consider the constitutional attack, noting that what it said in Monier applied. Id. The Bua court, however, exercised its discretionary jurisdiction to consider the challenged orders. Id. at 193. The court said that it hoped that by doing so the bench and bar would be encouraged to “wisely use the tools of discovery to illuminate the actual issues in the case rather than to harass and obstruct the opposing litigant.” Id. ¶ 41 It seems clear from a reading of Monier and Bua that the supreme court has repeatedly held that questions regarding invasions of privacy, overbreadth, and relevancy with respect to discovery orders are to be resolved by trial and reviewing courts without resorting to fourth amendment analysis. The court’s reasoning in Monier and Bua is consistent with the well- established rule that reviewing courts will not address constitutional issues that are unnecessary for the disposition of the case. People v. Waid, 221 Ill. 2d 464, 473 (2006). ¶ 42 We recognize that on occasion appellate courts have considered constitutional challenges to discovery orders. Our research has discovered two such cases since Monier and Bua. In Dufour v. Mobil Oil Corp., 301 Ill. App. 3d 156 (1998), the plaintiff’s attorney was held in - 17 - 2014 IL App (2d) 130175 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 - 18 - 2014 IL App (2d) 130175 that is not privileged and that is relevant to the issues in the lawsuit. Kunkel, 179 Ill. 2d at 533- 38. Additionally, the discovery rules provide for notice and opportunity to be heard before any physical or mental examination, or for that matter any private information, can be compelled. “Rule 201 and related rules governing specific discovery methods form a comprehensive scheme for fair and efficient discovery with judicial oversight to protect litigants from harassment.” Id. at 531. “The concept of relevance facilitates trial preparation while safeguarding against improper and abusive discovery.” Id. In 2012, Rule 201(m) was amended to “minimize any invasion of privacy that a litigant may have by filing discovery in a public court file.” Ill. S. Ct. R. 201(m), Committee Comments (adopted Oct. 24, 2012). ¶ 45 The requirements of relevance and reasonableness together with judicial oversight provided by the rules of discovery appear to more than satisfy any fourth amendment or Illinois privacy concerns. See Oklahoma Press Publication Co. v. Walling, 327 U.S. 186, 196 (1946); International Business Machines Corp., 83 F.R.D. at 103; Luminella v. Marcocci, 814 A.2d 711, 721 (Pa. Super. Ct. 2002). ¶ 46 Mark James also argues without any authority that the warrant clause of the fourth amendment applies to Rule 215 requests for physical and mental examinations. Even in cases where the government is seeking bodily samples via a grand jury subpoena, where there has been judicial review of the validity of the subpoena, the witness’s fourth amendment rights are fully protected. People v. Watson, 214 Ill. 2d 271, 286 (2005). The Supreme Court made clear in Schlagenhauf v. Holder, 379 U.S. 104 (1964), that “the movant must produce sufficient information, by whatever means, so that the district judge can fulfill his function mandated by the Rule.” Id. at 119. - 19 - 2014 IL App (2d) 130175 ¶ 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 - 20 - 2014 IL App (2d) 130175 to Rule 215. Mark James argues that “relevance under Rule 215 is broader than probable cause under the fourth amendment. Rule 215 isn’t drafted narrowly enough to be constitutional.” ¶ 50 In order to analyze Mark James’ claim that Rule 215 is unconstitutional we must first determine the nature of the right to be infringed by enforcement of that rule. Classification of the right dictates the level of scrutiny to be employed in determining whether the rule in question comports with the constitution. See Tully v. Edgar, 171 Ill. 2d 297, 304 (1996). Ordinarily courts will uphold a statute if it bears a rational relationship to a legitimate legislative purpose and is neither arbitrary nor unreasonable. Id. Where, however, a classification has been made on the basis of, inter alia, race or national origin, or the constitutional right at issue is considered to be “fundamental,” the presumption of constitutionality is weaker and the statute is subject to strict scrutiny. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 307 (2008). To survive strict scrutiny, “the measures employed by the government body must be necessary to serve a compelling state interest, and must be narrowly tailored thereto, i.e., the government must use the least restrictive means consistent with the attainment of its goal.” Id. (citing In re R.C., 195 Ill. 2d 291, 303 (2001)). Mark James argues that Rule 215 interferes with a fundamental right to privacy and that therefore we should apply strict scrutiny to that rule. In support of his argument that the right to privacy under the Illinois Constitution is infringed by Rule 215, he relies on In re May 1991 Will County Grand Jury, 152 Ill. 2d 381 (1992). In that case, the Illinois Supreme Court held that a person subpoenaed before the grand jury could not be compelled to submit a blood standard, pubic hair standard, or head hair standard unless probable cause was shown. Id. at 394-400. Mark James argues that physical and mental examinations are different from other forms of discovery because they require intrusion into another’s body and therefore require a greater showing than relevance. Id. at 391-92. - 21 - 2014 IL App (2d) 130175 ¶ 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 - 22 - 2014 IL App (2d) 130175 prepare for and try the case.” Id. at 27. As the Supreme Court noted, most states, including Illinois and Washington, have adopted discovery rules modeled on federal Rules 26 through 37. Like federal Rule 26(c), Illinois Supreme Court Rule 201 (eff. July 1, 2002), which is applicable to all discovery, states that the trial court “may at any time on its own initiative, or on motion of any party or witness, make a protective order as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.” As the Court explained, pretrial discovery procedures are in general conducted in private as a matter of modern practice. Seattle Times, 467 U.S. at 33. Protective orders afford private litigants like Mark James the opportunity to prevent public disclosure of private information tendered in discovery that might be “damaging to reputation and privacy.” (Emphasis added.) Id. at 35. Thus we agree with Elida, Ryan, and the Attorney General that Rule 215 should be assessed under the reasonableness standard. ¶ 53 The Illinois Supreme Court possesses rulemaking authority to regulate the trial of cases. People v. Cox, 82 Ill. 2d 268, 274 (1980). The supreme court is also free to modify and amend any rule or doctrine that it creates. Larson v. Buschkamp, 105 Ill. App. 3d 965, 967 (1982). The entire body of supreme court rules is periodically reviewed to “ensure that those rules continue to facilitate the administration of justice.” Ill. S. Ct. R. 3(d) (eff. Mar. 22, 2010). The rules are under constant review and are frequently amended and revised. In re Loss, 119 Ill. 2d 186, 195 (1987). Rules 201 through 219 cover discovery. The supreme court, in performing its rule making function, is presumed to have acted in a constitutional manner and a rule may be overturned only if it is conclusively established to be arbitrary and unreasonable. See, e.g., People v. Pollution Control Board, 129 Ill. App. 3d 958, 962 (1984) (General Assembly is - 23 - 2014 IL App (2d) 130175 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