Qualkinbush v. Skubisz

• Citation: 292 Ill.Dec. 745,357 Ill. App.3d 594,826 N.E.2d 1181
• Decision Date: 31 March 2005
• Docket Number: No. 1-03-2528.,1-03-2528.
• Parties: Michelle Markiewicz QUALKINBUSH, Petitioner-Appellee, v. Gregory SKUBISZ, Respondent-Appellant (David Orr, as Cook County Clerk, Dominick Gigliotti, Michelle Markiewicz Qualkinbush, Robert Fioretti, as the Calumet City Canvassing Board, Dominick J. Gigliotti and Nick Manousopoulos, Respondents). Gregory Skubisz, Counterpetitioner, v. Michelle Markiewicz Qualkinbush, as Calumet City Clerk, David Orr, as Cook County Clerk, and the City of Calumet City, Counterrespondents.
• Court: United States Appellate Court of Illinois

826 N.E.2d 1181

357 Ill. App.3d 594

292 Ill.Dec. 745

Michelle Markiewicz QUALKINBUSH, Petitioner-Appellee, v. Gregory SKUBISZ, Respondent-Appellant (David Orr, as Cook County Clerk, Dominick Gigliotti, Michelle Markiewicz Qualkinbush, Robert Fioretti, as the Calumet City Canvassing Board, Dominick J. Gigliotti and Nick Manousopoulos, Respondents).

Gregory Skubisz, Counterpetitioner, v. Michelle Markiewicz Qualkinbush, as Calumet City Clerk, David Orr, as Cook County Clerk, and the City of Calumet City, Counterrespondents.

No. 1-03-2528.

Appellate Court of Illinois, First District, Second Division.

March 31, 2005.

Nunc Pro Tunc December 28, 2004.

Michael E. Lavelle (Kevin E. Bry, of counsel), Chicago, for Appellant.

Odelson & Sterk, Ltd. (Burton S. Odelson, of counsel), Evergreen Park, and Dennis G. Gianopolus, Lansing, for Appellee.

Richard A. Devine, State's Attorney of Cook County (Patrick T. Driscoll, Jr., Deputy State's Attorney, Mary Scarlett Wilson, Assistant State's Attorney, of counsel), Chicago, for David Orr, as County Clerk, Respondent-Appellee.

Presiding Justice BURKE delivered the opinion of the court:

Respondent and counterpetitioner Gregory Skubisz¹ appeals from an order of the circuit court certifying the April 1, 2003, mayoral election results for Calumet City in which the court declared petitioner and counterrespondent Michelle Qualkinbush mayor. On appeal, Skubisz contends that the trial court erred in failing to dismiss Qualkinbush's petition for election contest on the basis that section 19-6 of the Election Code (10 ILCS 5/19-6 (West 2002)), the absentee ballot return provision, was preempted by the federal Voting Rights Act (42 U.S.C. § 1973aa-6 (2003)) and the Americans with Disabilities Act of 1990(ADA) (42 U.S.C. § 12132 (1995)), and that section 19-6 violates equal protection principles. Skubisz also contends that the trial court erred in: (1) invalidating nine absentee votes because the absentee ballot certification failed to disclose that those voters received assistance in voting; (2) invalidating certain absentee votes because the voters failed to state a reason for their physical incapacitation on their absentee ballot application form; (3) refusing to admit three misdelivered absentee ballots; and (4) finding that Skubisz's campaign engaged in fraudulent conduct and in deducting, in full, 38 votes from his vote total. For the reasons set forth below, we affirm.

STATEMENT OF FACTS

This lawsuit arose as a result of a special election held on April 1, 2003, for mayor of Calumet City. Four candidates ran for office: Skubisz, Qualkinbush, Dominick Gigliotti, and Nick Manousopoulos. After the ballots had been tallied, the results were: Skubisz, 2,542 votes; Qualkinbush, 2,518 votes; Gigliotti, 718 votes; and Manousopoulos, 1,480 votes. Skubisz was installed as the mayor on May 1.

On May 2, Qualkinbush filed a verified petition for election contest, alleging voter irregularities, including insufficient reasons being given by physically incapacitated voters on their applications for absentee ballots, improper assistance was given to disabled voters by members of Skubisz's campaign, particularly Michael Kaszak, voters failed to disclose that assistance had been given to them, and illegal delivery or mailing of absentee ballots by Skubisz or members of his campaign. On June 9, Skubisz filed a verified counterpetition for election contest, also alleging voting irregularities and challenging the validity of section 19-6 of the Election Code. With respect to the validity of section 19-6, Skubisz also filed a motion to dismiss Qualkinbush's petition. Subsequent to a hearing on July 2, the trial court concluded that section 19-6 was in compliance with the Voting Rights Act and ADA and it did not violate equal protection principles. Accordingly, the trial court denied Skubisz's motion to dismiss Qualkinbush's petition on the basis of preemption and equal protection.

On July 8, Qualkinbush filed a motion for partial summary judgment with respect to 51 votes on the basis that the voters failed to provide a sufficient reason or no reason at all for their physical incapacitation on their applications contrary to the mandatory provision of section 19-3 of the Election Code.² This motion was granted in part and denied in part by the court on July 25. After reviewing each voter separately, the trial court declared 18 votes invalid because the voters failed to provide any reason at all and two additional votes invalid for reasons irrelevant here.

Qualkinbush also filed a motion for partial summary judgment with respect to 18 voters based on the fact that these individuals, although they had received assistance in voting, failed to disclose that assistance on their certification as required by section 19-5. On July 30, Skubisz filed a response to this motion. The same day, the trial court heard arguments on this motion, and granted it in part and denied it in part.

During the course of the bench trial, which began on August 4, Qualkinbush filed two additional motions for partial summary judgment. First, Qualkinbush moved for partial summary judgment with respect to voters who received assistance, which was not disclosed, and with respect to improper delivery/return of ballots. The affidavits of 13 voters were attached, identifying the various assistance received from Kaszak, including filling out applications in part or whole, mailing applications, receiving assistance in voting, including punching ballots, and mailing of the ballots. Thereafter, the trial court granted the motion with respect to improper delivery in connection with eight voters and granted the motion with respect to improper assistance and delivery in connection with four voters. The trial court also granted the motion for summary judgment with respect to another voter on the basis of receiving assistance that was not disclosed (August 13 order).

Secondly, Qualkinbush filed another motion for partial summary judgment, relating to improper delivery of three ballots. Attached to this were the affidavits of the three voters. After hearing testimony from Kaszak in connection with the assistance he rendered to these three voters, the trial court granted the motion.

At the bench trial, Skubisz was called as an adverse witness by Qualkinbush.³ Skubisz admitted that his campaign undertook a concerted effort to procure absentee votes and he believed workers provided absentee ballot applications to "scores" of voters. Skubisz denied, however, being aware that any assistance was given to voters from his workers, including filling out applications in whole or in part. Skubisz further denied knowing what steps were taken after someone requested an absentee ballot application, but stated it was his secretary's or campaign coordinator's duty to follow up and it was one of Kaszak's duties to provide absentee ballot applications to voters.

Kaszak confirmed that he procured absentee votes for Skubisz, beginning in 1993, the first time Skubisz ran for mayor. Kaszak also did so in 2001 and 2003, when Skubisz again ran for mayor. Kaszak admitted taking absentee ballot applications to voters, helping fill them out, placing applications in envelopes, providing stamps to voters, and mailing applications. According to Kaszak, all of this was done at the direction of the voters. Kaszak then left his telephone number on a "receipt" with the voters. When a voter called, following receipt of his or her ballot, requesting assistance, Kaszak returned to the voter's home. According to Kaszak, most of the voters were confused because they were elderly and the ballots contained too much "mumbo jumbo" for these "old timers." Kaszak admitted instructing voters on how to vote, punching ballots for voters, placing ballots in envelopes, filling out certifications, and mailing ballots.

According to Kim Cornell, Skubisz's campaign secretary, she received numerous telephone calls from individuals requesting absentee ballots. She wrote their names and telephone numbers on a sticky note and left or gave the notes to those campaign workers, primarily Kaszak, who dealt with absentee ballots. According to Cornell, she prepared approximately 100 such sticky notes. Cornell further testified that she received calls from individuals after they had received their absentee ballot, asking what they should do. Cornell again took the individual's information and gave it to Kaszak or someone else to follow up on.

Gary Rycyzyn, stated that he was the director of elections for the Cook County Clerk's office. He testified in connection with the chain of custody for ballots from the precincts to the warehouse, the absentee ballot process, and absentee ballot applications.

On August 25, during a break in the bench trial, Skubisz filed a motion to count three misdelivered absentee ballots. At a hearing on this motion, it was determined that these votes had turned up the previous Thursday in a precinct not within Calumet City. Specifically, the ballots had been found in precinct one, Burnham, but belonged to precinct three, Calumet City. The court indicated that witnesses would need to be called with respect to these ballots to establish a chain of custody. In this regard, Skubisz offered the testimony of Jessica Belmares, the supervisor of the Cook County Clerk's office warehouse, and Ed Bieganik, an election judge for precinct three. According to Belmares, the envelope in which the ballots had been recently found, while cleaning out the warehouse, stated "precinct one," but the votes were for precinct three. Belmares did not know what precinct the ballots had been delivered to and only knew that they had been found in an envelope for precinct one. She also did not know how the ballots got from precinct three to precinct one. Belmares further testified that a note from the election judges accompanied the envelope, which stated: "Found after final result tape was run and...