Mashni Corp. v. Board of Election Com'Rs
| Decision Date | 20 January 2006 |
| Docket Number | No. 1-04-3631.<SMALL><SUP>1</SUP></SMALL>,No. 1-04-3619.,1-04-3619.,1-04-3631.<SMALL><SUP>1</SUP></SMALL> |
| Citation | 841 N.E.2d 60 |
| Parties | MASHNI CORPORATION, by Farida MASHNI, S & T, Inc., by Tae Hwan Han, Charles Jaskiewicz, Michele Parisi, Belinda Ransom, James A. Buckle, Leonard LeCour, Ronnie Lindsey, Sharrod Graham, Sheldon Willis, Ron Ison, Arii Rowling, Donald C. Smith, Donna Youmans, Lisa Hunter, Jeffory D. Baker, William R. Kelley, John T. Mitchell, Thomas V. Nowaczyk, Lisa A. Ruth, And Anthony Macklin, Plaintiffs-Appellees, v. BOARD OF ELECTION COMMISSIONERS FOR the CITY OF CHICAGO, Defendant-Appellant, and Barbara Stanley And Paul Uhl, Interveners-Appellants. |
| Court | Illinois Supreme Court |
James M. Scanlon & Associates, P.C. (James M. Scanlon, Joan T. Agnew, of counsel), Chicago, for Appellant.
Michael E. Lavelle, William J. Cooley, Chicago, for Appellees.
Defendant Board of Election Commissioners of the City of Chicago (Board) and Interveners Barbara Stanley and Paul Uhl2 appeal from an order of the circuit court invalidating a local option election held on February 25, 2003, in the 32nd Precinct of the 48th Ward that prohibited the sale of alcoholic beverages at retail in that precinct. On appeal, defendants contend that the trial court erred in holding that the transposition of the ward and precinct numbers in a Chinese translation on the local option ballot failed to substantially comply with the requirements of section 9-6 of the Illinois Liquor Control Act (Act) (235 ILCS 5/9-6 (West 2004)).3 For the reasons set forth below, we affirm, in part, and reverse, in part.
On February 25, 2003, a local option election was conducted in the 32nd Precinct of the 48th Ward to determine whether the sale of retail alcoholic liquor should be prohibited. The ballot was printed in English, Spanish, and Chinese. The Chinese translation, with respect to the sale of alcohol, used the term xi~o shòu, as opposed to the term ling shòu. The Chinese translation also transposed the precinct and ward numbers, i.e., 48th Precinct and 32nd Ward. The ballot also contained a section entitled, "Description of Area to Be Affected," that gave a common description, using street boundaries, addresses, etc. to identify the area affected in nonlegal terms. This description, too, was in English, Spanish, and Chinese.
On March 14, plaintiffs Mashni Corporation, by Farida Mashni, S & T, Inc., by Tae Hwan Han, Charles Jaskiewicz, Michele Parisi, Belinda Ransom, James A. Buckle, Leonard LeCour, Ronnie Lindsey, Sharrod Graham, Sheldon Willis, Ron Ison, Arii Rowling, Donald Smith, Donna Youmans, Lisa Hunter, Jeffory Baker, William Kelley, John Mitchell, Thomas Nowaczyk, Lisa Ruth and Anthony Macklin, voters and two liquor license holders in the 32nd precinct,4 filed a complaint contesting the validity of the election, alleging that the ballot was "inherently vague and ambiguous" because it contained both substantive defects and the form of the ballot was unlawful and, therefore, failed to comply with section 9-6 of the Act. With respect to the substantive violations, plaintiffs alleged:
Plaintiffs further alleged that the Board utilized an uncommon Chinese language, a simplified version, which is understood only by junior generations of Chinese people, not senior generations (paragraphs 10 and 11). Plaintiffs also alleged numerous defects in the form of the ballot, which we need not set forth. The complaint contained a count II that sought to void the election on the basis that the trial court had ordered the Board to remove the proposition from the ballot on February 14.5
On March 26, Stanley and Uhl filed a petition to intervene, which the trial court granted. On April 23, the Board filed its answer and affirmative defenses and, on May 2, the Interveners did the same. The Interveners also filed a motion to dismiss or strike count II because this issue was pending before the appellate court. The Board was later granted leave to join this motion. Thereafter, plaintiffs responded to it. On May 21, plaintiffs filed a motion to dismiss the Board and Interveners' affirmative defenses. On May 30, the trial court granted defendants' motion to dismiss count II.
On June 13, the Board and Interveners responded, separately, to plaintiffs' motion to strike their affirmative defenses. Thereafter, plaintiffs replied. On July 8, the trial court granted plaintiffs' motion to strike defendants' affirmative defenses with the exception of the affirmative defense regarding plaintiffs' lack of standing.
On August 20, 2004, plaintiffs filed a motion for summary judgment, contending that two translation errors occurred in the ballot which rendered the election invalid as a matter of law. On August 23, defendants filed their joint motion for summary judgment, noting that the issues before the court had been limited by plaintiffs. Specifically, paragraphs 10 and 11 of plaintiffs' complaint were no longer at issue. Additionally, plaintiffs indicated that they would not present evidence with respect to paragraphs 12 to 17 (Brooks issue), but reserved the right to argue these errors. Thus, according to defendants, two questions of law were presented:
Defendants attached the deposition of their expert, Dr. Richard Gu, to their motion.
On October 6, the trial court held a hearing on the respective motions. The trial court concluded that the "at retail" issue involved a question of fact since two different experts gave different opinions and, thus, required a trial. With respect to the transposition issue, the trial court reserved ruling. The trial court also indicated that, although it was ready to rule on the Brooks issue, it would take the matter under advisement until it ruled on the other issues.
Trial commenced on November 10. Hanelore Mui, a freelance interpreter in Cantonese and Mandarin, testified as plaintiffs' expert. According to Mui, the ballot asks: "[T]he sale of liquor in general should it be prohibited in the 32nd, in the 48th Precinct of 32nd District in Chicago City?" It was Mui's opinion that the Chinese translation has "omissions of important meaningful words" and was not a correct translation. It was further her opinion that the transposition of the ward and precinct numbers "could be easily confusing" because people might think they were looking at the wrong ballot. However, she acknowledged that if a voter read the description of the area affected, "they can easily solve that problem." Mui then indicated there were two Chinese characters for "at retail," but did not identify what they were. When asked if the character used for the term "sale" in the ballot would include wholesale sales, Mui responded, "I would assume it does."
On cross-examination, Mui stated that she had formal education in Chinese up to a junior high equivalency and was certified by Berlitz. Mui also stated that the translation was not accurate because it left out the term ling shòu, which was a more accurate term for "at retail." Again, she stated there was another Chinese character for "at retail," but did not identify it. Mui then admitted that ling shòu actually means "retail sale," not "sale at retail," but stated it could also mean the latter. Mui further stated that "retail" can have multiple meanings, e.g., price, quantity, where sold, and that the same was true with respect to the term "sale."
Mui indicated that if she was interpreting a legal document, which a ballot is, she would need to provide the exact meaning of the original without losing meaning or omission, whether or not the general population would understand the translation.6 Mui admitted that the relevant language here could be translated to xiao shòu, but it was her opinion that ling shòu was the better character to show the difference between retail sales and wholesale. With respect to the transposition, Mui admitted that the common description in the ballot could easily tell voters what area was affected and that the language used in that description was accurate and would be easy for Chinese readers to understand. Plaintiffs then rested.
Dr. Richard Gu, who has studied and taught Chinese/English translation for 11 years at Northwestern and 6 years in China, testified as defendants' expert. According to Gu, a good translation needs to be reliable, loyal to the original language, and enable the readers to understand it. Gu stated that it was important, in translating, to know something about the audience because different terms are used for the general public versus specialized audiences. It was Gu's belief that plain or simplified Chinese was preferable for use with the general public. Gu further stated that there was always a choice of characters to use in translating, and it was his belief that one needed to use the best, most suitable for the purpose. It was Gu's opinion that xiao shòu was the best translation for...
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