Kreisman Law Offices Professional Corporation
The beneficiaries of the Barbara B. Kaull Trust included the biological children of Mark James Kaull’s father, Mark Kaull, who died in 2010. Mary Kaull, acting as trustee of the Barbara B. Kaull Trust, petitioned the court for a ruling on whether Mark, the elder, was also the father of Ryan Donald Schrader. Mark James Kaull might be the brother of Ryan Donald Schrader. To determine whether they were in fact brothers, Mary Kaull asked the court for an order compelling Mark James Kaull to submit to a DNA test. Mark James Kaull refused and was held in contempt of court. Mark James Kaull argued that the Illinois Supreme Court Rule 215 as revised and amended in 1996 is unconstitutional under the U.S. and Illinois Constitutions.
Mark James claimed that the revised Rule 215 violated the prohibition on reasonable searches and seizures under the U.S. Constitution’s Fourth Amendment, plus his right under Article 1, Section 6 of the Illinois Constitution to be free from unreasonable searches, seizures and invasions of privacy.
This case, which was set in Winnebago County, Ill., granted Mary’s request for the DNA testing. Mark appealed from that order which fined him $100 and a dollar a day for declining to obey.
The Illinois Appellate Court concluded that Rule 215 did not violate the Fourth Amendment to the U.S. Constitution or the privacy clause of the Illinois Constitution.
Justice Joseph E. Birkett continued, “However, in light of the trial court’s finding that Mark James’s 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.”
The court’s decision included the statement that it was clear from the case precedent that led to the adoption of both the federal Rule 35 and Illinois Rule 215 that a showing of “good cause” is not constitutionally required.
The court made clear that mental and physical examinations should not be ordered automatically, but only “upon a discriminating application by the district judge of the limitations prescribed by the Rule.” Schlagenhauf v. Holder, 379 U.S. 104 (1964). 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 the case of Camden and Suburban Railway v. Stetson, 177 U.S. 172 (1900).
Illinois Supreme Court Rule 215 requires that the movant produce sufficient information to meet the “in controversy” and “relevance” requirements so that the trial judge can fulfill this function a mandated by the rule. An evidentiary hearing is not necessarily required, although a hearing may be required in some cases. Discovery should be denied when insufficient evidence suggests that the requested exam is relevant or will lead to relevant evidence. The appellate court went on to state that it found that Rule 215 does not violate the Fourth Amendment to the U.S. Constitution or the privacy clause of the Illinois Constitution.
Kaull v. Kaull, 2014 IL App (2d) 130175 (Dec. 22, 2014).
Kreisman Law Offices has been handling jury trials and appeals in state and federal court for more than 38 years for individuals, families and businesses in and around Chicago, Cook County and its surrounding areas, including River Grove, River Forest, Chicago (Chatham, Englewood, Gresham, Marquette Park, Archer Heights, Lawndale, Ukrainian Village, Wicker Park), Park Ridge, Northbrook, Mundelein, Morton Grove, Lockport, Lincolnshire, Vernon Hills, Joliet, Aurora, St. Charles and Morton Grove, Ill.
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