Samour, Inc. v. Board of Election Com'Rs

• Decision Date: 19 January 2007
• Docket Number: No. 102227.,No. 101902.,101902.,102227.
• Citation: 866 N.E.2d 137,224 Ill.2d 530
• Parties: SAMOUR, INC., et al., Appellees, v. The BOARD OF ELECTION COMMISSIONERS OF the CITY OF CHICAGO, Appellant. Mashni Corporation et al., Appellants, v. The Board of Election Commissioners of the City of Chicago et al., Appellees.
• Court: Illinois Supreme Court

866 N.E.2d 137

224 Ill.2d 530

SAMOUR, INC., et al., Appellees, v. The BOARD OF ELECTION COMMISSIONERS OF the CITY OF CHICAGO, Appellant.

Mashni Corporation et al., Appellants, v. The Board of Election Commissioners of the City of Chicago et al., Appellees.

No. 101902.

No. 102227.

Supreme Court of Illinois.

January 19, 2007.

Rehearing Denied March 26, 2007.

James M. Scanlon and Joan T. Agnew, Chicago, for appellant in No. 101902.

William J. Cooley and Michael E. Lavelle, Chicago, for appellees in No. 101902.

William J. Cooley and Michael E. Lavelle, Chicago, for appellants in No. 102227.

James M. Scanlon and Joan T. Agnew, Chicago, for appellee in No. 102227.

Patricia F. Sharkey, Marc Kadish and Russell R. Eggert, of Mayer, Brown, Rowe & Maw, LLP, Chicago, for intervenors Barbara A. Stanley and Paul Uhl.

Justice KILBRIDE delivered the judgment of the court, with opinion:

In separate complaints, the two sets of plaintiffs in these consolidated appeals, Mashni Corporation et al. (Mashni) and Samour, Inc., et al. (Samour), challenged the validity of a local option election held under the Liquor Control Act of 1934 (Act) (235 ILCS 5/9-1 et seq. (West 2002)), based on alleged errors in the form of the ballots. The complaints both alleged that the Chinese version of the ballots failed to comply substantially with the statutory form in section 9-6 of the Act (235 ILCS 5/9-6 (West 2002)). The circuit court of Cook County invalidated the election because it found that a transposition error in the precinct and ward numbers violated the substantial compliance requirement of the Act.

In separate appeals, the appellate court in Mashni reversed the trial court judgment (362 Ill.App.3d 730, 298 Ill.Dec. 917, 841 N.E.2d 60), while the appellate court in Samour affirmed (362 Ill.App.3d 12, 298 Ill.Dec. 407, 839 N.E.2d 1054). This court consolidated the two appeals. We conclude that the ballots complied substantially with section 9-6 of the Act and, therefore, the circuit court erred in invalidating the election. Accordingly, we affirm the judgment in Mashni, No. 102227, reversing the trial court's decision, and reverse the judgments in Samour, No. 101902.

I. BACKGROUND

On February 25, 2003, a local option election was held in the 45th Precinct of the 15th Ward and the 32nd Precinct of the 48th Ward in Chicago. The Board of Election Commissioners for the City of Chicago (Board) submitted propositions to the voters of those precincts asking whether the sale at retail of alcoholic liquor should be prohibited within their precincts. The ballots in each precinct were printed in English, Spanish, and Chinese.

The ballots listed the ward and precinct numbers in the upper left corner. A section entitled "Description of Area to be Affected," containing a common description of the precincts using street boundaries, landmarks, and addresses, was printed after the ward and precinct numbers. In the 45th Precinct of the 15th Ward, the English version of the proposition stated, "Shall the sale at retail of alcoholic liquor be prohibited in this 45th Precinct of the 15th Ward of the City of Chicago (as such precinct existed as of the last General Election[)]?" The proposition in the 32nd Precinct of the 48th Ward stated, "Shall the sale at retail of alcoholic liquor be prohibited in this 32nd Precinct of the 48th Ward of the City of Chicago (as such precinct existed as of the last General Election)?"

Following the election, the plaintiffs in these cases filed separate complaints against the Board contesting the validity of the local option election in their respective precincts. In Samour, plaintiff Samour, Inc., alleged it is an Illinois corporation holding retail liquor licenses and conducting business within the 45th Precinct of the 15th Ward in Chicago. In Mashni, the plaintiffs included Mashni Corporation and S & T, Inc., Illinois corporations holding retail liquor licenses and conducting business within the 32nd Precinct of the 48th Ward. In both cases, there were also a number of individual plaintiffs who were identified as registered voters residing within the respective precincts. Barbara Stanley and Paul Uhl intervened in the Mashni trial proceedings but not in the Samour proceedings.

The plaintiffs' complaints were virtually identical with respect to the claims at issue here, and they were consolidated for purposes of the trial court proceedings. The plaintiffs alleged that the election was invalid because the Chinese translation of the proposition did not comply with the ballot form required by section 9-6 of the Act. In pertinent part, the plaintiffs alleged that: (1) the English ballots asked voters whether the sale of alcohol should be prohibited at retail as required by the Act, while the Chinese translation asked whether the sale of alcohol should be prohibited generally; and (2) the precinct and ward numbers were transposed on the Chinese ballots, thus incorrectly identifying the affected areas as the 15th Precinct of the 45th Ward and the 48th Precinct of the 32nd Ward.

At the bench trial, two expert witnesses testified, one for the plaintiffs and one for the Board and the intervenors. None of the plaintiffs testified and the parties did not present any other witnesses. Hanlelore Mui, a freelance interpreter and translator of the Chinese language, testified on behalf of the plaintiffs. During her testimony, Mui referred to a ballot from the 32nd Precinct of the 48th Ward, but the parties stipulated that her testimony was also applicable to the ballot used in the 45th Precinct of the 15th Ward. Mui testified that the Chinese translation asked whether "the sale of liquor in general should it be prohibited * * * in the 48th Precinct of 32nd District in Chicago City." In her opinion, the Chinese translation had "omissions of important meaningful words" and was not a correct translation. Mui testified that the transposition of the ward and precinct numbers on the Chinese ballots "could be easily confusing" because people who could not read the description of the area affected would probably think they were given the wrong ballot. She acknowledged, however, that voters could "easily solve that problem" if they read the description of the area affected.

Mui also testified that the Chinese translation was not accurate because it used the word "sale" without the term "retail." The translation should have included the character "ling shou," the term for "retail sale" or "for sale at retail." She believed that the Chinese translation printed on the ballot encompassed all types of sales, including wholesale, resale, or for personal consumption.

On cross-examination, Mui acknowledged that the common description of the precinct would be easy for Chinese readers to understand. She also explained that "retail" can have multiple meanings referring to price, quantity, and the sales location. The term "sale" could also have multiple meanings. According to Mui, the general public is familiar with the character ling shou because it is a commonly used term. She conceded that "sale at retail" could be translated using "xiao shou" as it appeared on the ballots, but maintained that a more accurate translation would have used the character ling shou to indicate the difference between retail sale and wholesale.

Dr. Richard Gu, a professor of Chinese language at Northwestern University, testified on behalf of the Board and the intervenors. Gu stated there was always a choice of characters to use in translating and it was preferable to use plain or simplified Chinese with the general public. Xiao shou, the character used by the Board, was the best translation for "sale at retail" because that character is generally taught and understood to mean retail sales. In Gu's opinion, voters would understand that the ballot was referring to retail sales.

According to Gu, adding ling shou would not clarify the ballot because xiao shou meant sale. He asserted the "meaning is clearly there already. No one would misunderstand it." In fact, fewer people would be able to understand the proposition if ling shou, the character for "retail," was added to the translation. Gu explained that the Chinese language has over 40,000 characters and only the most commonly used characters are generally taught. The general public is, therefore, unfamiliar with less commonly used characters. Xiao shou is much more commonly used and taught than ling shou. Gu did not even teach ling shou to his college and graduate students. Although xiao shou could be understood to include both retail and wholesale, the general public would understand it to mean retail sale. In Gu's opinion, xiao shou was the best character to convey the idea of retail sale to the general public.

Dr. Gu further stated that Chinese voters would not be confused by the transposition of the precinct and ward numbers because it is a "very, very common error" in translating between English and Chinese. Chinese speakers always put the larger number before the smaller one and are always cautious when viewing numbers in a translation. Thus, Chinese voters would identify this common problem and would rely on the narrative description of the area affected rather than the precinct and ward numbers on the ballots.

Based on Dr. Gu's testimony, the trial court found that the Chinese translation using the character xiao shou complied substantially with the statutory form set forth in section 9-6 of the Act. The court concluded that Chinese voters "were given a clear and meaningful choice to vote for or against the proposition." As for the transposition of the precinct and ward numbers, the court stated that the question was whether the error "put a Chinese-speaking person in a different position * * * than it does an English-speaking and a Spanish-speaking person." The court concluded that the Chinese translation failed to comply substantially with section 9-6 of the Act "based upon the error in the ballot...