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Kozuszek v. Brewer

October 8, 2008

NICOLE KOZUSZEK AND WESLEY KOZUSZEK, JR., PLAINTIFFS-APPELLANTS,
v.
DALE BREWER, IN HER INDIVIDUAL CAPACITY, AND GEORGE NELSON, IN HIS INDIVIDUAL CAPACITY, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 05 C 394-Rudy Lozano, Judge.

The opinion of the court was delivered by: Williams, Circuit Judge

ARGUED APRIL 8, 2008

Before KANNE, WILLIAMS, and TINDER, Circuit Judges.

Nicole Kozuszek and her brother Wesley Kozuszek, Jr., lived in Porter County, Indiana. On November 4, 2003, the Kozuszeks voted in an Indiana general election, but because of questions surrounding their residence, election officials spoiled (i.e., did not count) their ballots. Now the Kozuszeks have sued two Porter County officials under 42 U.S.C. § 1983, alleging that these officials violated the Kozuszeks' federal constitutional rights by improperly spoiling their ballots. Because there is no evidence that these officials acted willfully to impair the Kozuszeks' votes, we affirm the district court's grant of summary judgment in the officials' favor.

I. BACKGROUND

On October 5, 2003, about one month before the election, Wesley Kozuszek reported his car stolen to the police in Chesterton, a town of about 11,000 people in Porter County. A police officer met Wesley at his Chesterton apartment, which he had rented through May 2004. The police report on the incident listed this Chesterton address for Wesley and indicated that he resided there. Wesley's sister, Nicole Kozuszek, also provided a statement listing the same Chesterton address as her "home."

The Kozuszeks, however, had registered to vote based on their parents' address in the neighboring town of Porter, which had a population of about 5,000. Because Wesley and Nicole would be unable to vote in person on election day, they had obtained absentee ballots. In particular, Wesley Kozuszek was voting absentee because he was working on election day as a Democratic poll watcher at a Chesterton polling place.

About a week before the election, Chesterton Police Chief George Nelson attended a training session for election workers. Wesley was not at the meeting, but like the other workers, he had submitted a "claim voucher" that indicated where he wanted his paycheck mailed. Nelson noticed that Wesley had reported a Porter address, but recalled that the recent police report describing the theft of Wesley's car had listed a Chesterton address. Nelson mentioned this discrepancy to Dale Brewer, a Republican member of the Porter County Election Board and an election official who happened to be near Nelson during the training session.

Brewer claims she did not think about the matter again until election day, when she saw Wesley volunteering at the Chesterton precinct. Brewer approached Wesley and asked him, "How do you like living in Chesterton?" Brewer claims Wesley responded that he liked living in Chesterton okay, but that he only slept there once in a while. Wesley claims he told Brewer, "No, I don't live in Chesterton. I live at home with my mother in Porter." In any event, Brewer claims she thought Wesley's response was strange, so she decided to investigate further.

At Brewer's request, the Chesterton police (who were stationed in the same building where Wesley was working) provided Brewer with the police report of the car theft. Brewer reviewed the report and separately contacted the two other members of the Porter County Election Board, Stankiewicz (a Democrat) and Bozik (a Republican), to tell them about the discrepancy in the addresses. The two other board members agreed with Brewer that if there was a residence conflict, a challenge should be issued.

Brewer then contacted Porter election personnel and discovered that the Kozuszeks were registered to vote in the town of Porter and were casting absentee ballots there.

Brewer went to the precinct where the Kozuszeks' ballots would be tallied and filled out a challenge form, listing her reasons for the challenge as being the Chesterton police report and a "3-0 vote election board." She did not mention her encounter with Wesley earlier that day and did not provide Wesley's claim voucher that listed a Porter address.

Poll inspector Rita Newman did not rule on Brewer's challenge until the polls had closed, at which time she spoiled the Kozuszeks' ballots. Brewer and Nelson do not contest the Kozuszeks' claim that this spoliation was in error.

On November 1, 2005, the Kozuszeks brought this suit for monetary damages under 42 U.S.C. ยง 1983. They claim that Brewer and Nelson violated their right to vote and their due process and equal protection rights under the United States Constitution. Specifically, the Kozuszeks allege that Brewer challenged their votes because their mother was a Democrat who was running for re-election as Porter town council ...


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