The opinion
Filed 8/31/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
HARALD MARK GALZINSKI, C079513
Plaintiff and Appellant, (Super. Ct. No.
34201480001895CUWMGDS)
v.
SAMUEL D. SOMERS, as Chief of Police, etc.,
Defendant and Respondent;
PAM SEYFFERT et al.,
Real Parties in Interest and
Respondents.
APPEAL from a judgment of the Superior Court of Sacramento County,
Christopher E. Krueger, Judge. Reversed.
Harald Mark Galzinski, in pro. per., for Plaintiff and Appellant.
James Sanchez, City Attorney; Katherine E. Underwood, Deputy City Attorney
for Defendant and Respondent and Real Parties in Interest and Respondents.
1
In February 2011, plaintiff Harald Mark Galzinski submitted a citizen’s complaint
to the Sacramento Police Department (the department) against three of the department’s
officers related to the taking of biological samples from him following his arrest in
December 2003. In July 2014, the department’s internal affairs division notified
Galzinski that the division had “reviewed [his] complaint” but “no further action” would
be taken on it because, “[b]ased upon the information [Galzinski] provided, the issues
[he] raised pertain[ed] to points of law which should have been litigated during [his]
criminal trial in 2005. Therefore, the proper venue for resolving [his] complaint would
be through the appeals process.”
Galzinski sought a writ of mandate from the superior court to compel defendant
Samuel D. Somers Jr., Chief of the Sacramento Police Department, and three sergeants in
the department’s internal affairs division (real parties in interest Pam Seyffert, Charles
Husted, and Terrell Marshall)1 to “properly investigate” his complaint and to “make
official findings as to the validity of [his] allegations.” The superior court denied
Galzinski’s petition, concluding that the department had “essentially” found the officers
Galzinski accused of misconduct were “ ‘exonerated’ ” and that, in any event, the
department did not abuse its discretion “in responding to the complaint in the way that it
did.”
On Galzinski’s appeal, we conclude the trial court erred in denying Galzinski’s
petition. As we will explain, the procedure for addressing citizen complaints the
department established and published obligated the department to conduct an
investigation into the allegations of the complaint that was sufficient to allow the Chief of
Police to make one of four possible findings, and the procedure obligated the Chief of
Police to make one of those findings with respect to each of Galzinski’s allegations of
1 For convenience, we will refer to defendant and the three real parties in interest
jointly as defendants.
2
misconduct. Defendants did not comply with these obligations, and Galzinski is entitled
to a writ of mandate compelling defendants to perform their ministerial duty to satisfy the
obligations imposed by the department’s published procedure. Accordingly, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Subdivision (a)(1) of Penal Code section 832.5 provides that “[e]ach department
or agency in this state that employs peace officers shall establish a procedure to
investigate complaints by members of the public against the personnel of these
departments or agencies, and shall make a written description of the procedure available
to the public.” In compliance with this provision, the department has made available to
the public a “Citizen Complaint procedure” brochure. According to that brochure, once a
citizen complaint has been submitted to the department, “it may be investigated in one of
two ways. It will either be forwarded to the employee’s supervisor for inquiry or to the
Internal Affairs Division for investigation.” The brochure further explains that “[e]ach
allegation is examined on its own merits” and “[t]he Chief of Police will render a finding
in each case. There are four possible findings:
“Sustained: The investigation disclosed enough evidence to clearly prove the
allegation.
“Not sustained: The investigation failed to reveal enough evidence to clearly
prove or disprove the allegation.
“Exonerated: The act which proved the basis for the complaint did occur;
however investigation revealed the act was justified, lawful and proper.
“Unfounded: The investigation has produced sufficient evidence to prove that the
act or acts alleged did not occur. This finding shall also apply when individual personnel
named in the complaint were not involved in an act that did occur.
“You will be notified of the finding in writing at the conclusion of the
investigation.”
3
On February 8, 2011, Galzinski submitted a citizen’s complaint to the department
against three officers related to his arrest in December 2003. Specifically, Galzinski
complained that on the day of his arrest two of the officers had a nurse at the Sacramento
County Jail collect biological samples from him without a warrant or probable cause. He
further complained that none of the reports completed by the three officers explained or
confirmed “why, where, when, how, and by who the evidence was collected, and the
reason this information was expressly left out of [the] reports.” Finally, Galzinski
complained that “[n]o receipt or documentation of the tests done [on the samples] and the
results of such tests were []ever turned over to [him] at anytime.”
In August 2011, following a request made by Galzinski (which appears to have
been in the form of an ex parte motion), Sergeant Husted notified Galzinski that his
complaint had been received on February 24, 2011, and assigned to Sergeant Seyffert.
On May 28, 2014 -- more than three years after the department received
Galzinski’s complaint -- Galzinski wrote to Sergeants Husted and Seyffert, asking for
notice of the disposition of his complaint or notice of when the investigation of his
complaint would be concluded. By letter dated July 3, 2014, Sergeant Marshall notified
Galzinski that the internal affairs division had “reviewed [his] complaint” but “no further
action” would be taken on it because, “[b]ased upon the information [Galzinski]
provided, the issues [he] raised pertain[ed] to points of law which should have been
litigated during [his] criminal trial in 2005. Therefore, the proper venue for resolving
[his] complaint would be through the appeals process.”2
2 The letter also stated that Galzinski’s complaint had been “placed in ‘suspension’
status pending the outcome of [his] criminal case,” but then inexplicably acknowledged
that Galzinski’s “criminal case concluded on November 2, 2005, [when he was] found
guilty and sentenced to prison” -- more than five years before Galzinski submitted his
citizen’s complaint to the department.
4
In July 2014, Galzinski filed a verified petition for a writ of mandate in the
Sacramento County Superior Court against Police Chief Somers as respondent, and
Seyffert, Husted, and Marshall as real parties in interest, seeking to compel them to
“properly investigate [his] citizen’s complaint . . . and/or make official findings as to the
validity of [his] allegations.” In opposing Galzinski’s petition, defendants argued that the
department had complied with its duty under Penal Code section 832.5 to establish a
procedure for the investigation of citizen complaints and to make a written description of
that procedure available to the public. Defendants further argued that Galzinski was
improperly seeking to control the Internal Affairs Division’s discretion to decide what
action to take in response to his complaint. In reply, Galzinski argued that defendants
had a ministerial duty to comply with the department’s complaint procedure as described
in the brochure made available to the public. More specifically, Galzinski argued that he
was “not seeking to compel a particular finding,” he was “merely seeking to compel a full
and complete investigation of his factual allegations” and “a finding on these allegations
made by the Chief of Police, as required by the [department’s] own procedures.”
At the hearing on Galzinski’s petition, defense counsel “confirmed . . . that
biological samples were collected from Galzinski without a warrant and test results were
not provided to Galzinski.” Nevertheless, counsel argued that “those acts were justified,
lawful and/or proper” because no warrant was required, or, more precisely, because it
was “unclear whether a warrant was required,” and because, “assuming a duty to disclose
the test results exist[ed], [that duty] belongs to the prosecuting attorney, not to the
Department.”
In their opposition to Galzinski’s writ petition in the superior court, defendants
asserted that Galzinski’s complaint was placed in suspension until “all criminal appeals
were exhausted,” which, in their view, occurred in April 2014, when the United States
Supreme Court denied Galzinski’s petition for writ of certiorari.
5
In April 2015, the superior court denied Galzinski’s petition. The court first
agreed with defendants that Galzinski had not shown the failure to comply with any duty
imposed by Penal Code section 832.5, because “[t]here is no suggestion that the
Department either lacks the required procedure or failed to make a written description
available to the public.” Next, noting that Galzinski’s “real complaint concerns the
adequacy of the Department’s response” to his complaint, the court concluded that “[i]n
essence, Galzinski complains about the manner in which the Department exercised its
discretion to handle his complaint,” but “mandate will not lie to compel the Department
to exercise its discretion in a particular manner.” Finally, addressing the argument in
Galzinski’s reply (set forth above) that he was seeking to compel defendants to follow the
department’s published complaint procedure, the court “assume[d] for purposes of this
petition that the Department was . . . required to follow its own complaint procedure” and
concluded that what Galzinski was seeking was “a writ of mandate directing the
Department to render one of the precise findings required by its own complaint
procedure.” The court concluded Galzinski was not entitled to that relief for two reasons.
First, based on defense counsel’s argument at the hearing that the actions taken by the
department with respect to the collection and testing of Galzinski’s biological samples
were justified, lawful, and/or proper, the court concluded that “although the Department
did not use the magic words, it essentially found the officers against whom the complaint
was filed were ‘exonerated.’ ” Second, the court concluded that because Galzinski’s
complaint “was unique because it involved issues that either were raised or that could
have been raised in both the underlying criminal trial and the various legal actions
Galzinski brought after the criminal trial concluded,” his complaint “required a unique
response rather than one of the four responses enumerated in the Department’s complaint
procedure,” and thus the court could not “say that the Department abused its discretion in
responding to the complaint in the way that it did.”
6
In May 2015, the court entered its judgment denying Galzinski’s writ petition.
Galzinski timely appealed.
DISCUSSION
On appeal, Galzinski contends the superior court improperly denied his writ
petition because defendants had a ministerial duty to investigate his citizen’s complaint
and to render a finding on that complaint in compliance with the complaint procedure the
department established and made public pursuant to subdivision (a)(1) of Penal Code
section 832.5. In support of this argument, he cites Gregory v. State Bd. of Control
(1999) 73 Cal.App.4th 584 (Gregory) for the proposition that “ ‘[a] public entity has a
ministerial duty to comply with its own rules and regulations where they are valid and
unambiguous’ ” and Pozar v. Department of Transportation (1983) 145 Cal.App.3d 269
(Pozar) for the proposition that “a writ of mandate may be issued to compel a public
agency to follow its own internal procedures.” For the reasons that follow, we agree with
Galzinski that the superior court erred.
“A writ of mandate may be issued by any court to any inferior tribunal,
corporation, board, or person, to compel the performance of an act which the law
specially enjoins, as a duty resulting from an office, trust, or station . . . .” (Code Civ.
Proc., § 1085, subd. (a).) Indeed, “[t]he writ must be issued in all cases where there is not
a plain, speedy, and adequate remedy, in the ordinary course of law . . . upon the verified
petition of the party beneficially interested.” (Id., § 1086.) In essence, “[m]andamus lies
to compel the performance of a clear, present, and ministerial duty where the petitioner
has a beneficial right to performance of that duty.” (Carrancho v. California Air
Resources Board (2003) 111 Cal.App.4th 1255, 1265.) “A duty is ministerial when it is
the doing of a thing unqualifiedly required.” (Redwood Coast Watersheds Alliance v.
State Bd. of Forestry & Fire Protection (1999) 70 Cal.App.4th 962, 970.)
There is no dispute here that the department complied with its ministerial duty
under Penal Code section 832.5, subdivision (a)(1) to “establish a procedure to
7
investigate complaints by members of the public against the personnel of the[]
department[]” and to “make a written description of the procedure available to the
public.” The question presented is whether defendants have a ministerial duty to follow
that procedure, such that they can be compelled to perform that duty by a writ of
mandate. Defendants contend the answer to this question is “no,” but they are wrong.
As Galzinski has argued, both in the superior court and this court, the court in
Gregory held that “[a] public entity has a ministerial duty to comply with its own rules
and regulations where they are valid and unambiguous.” (Gregory, supra, 73
Cal.App.4th at p. 595.) But defendants contend Galzinski “incorrectly relies upon
Gregory,” because Gregory involved “duties . . . codified in the Government Code and
the California Code of Regulations, not an internal policy,” and “[t]his is as far as
Gregory goes.” As defendants put it, “Gregory does not hold that a public entity has a
ministerial duty to comply with its own internal policies and procedures, the specifics of
which are not mandated by statute or regulation.”
As Galzinski points out, however, defendants’ argument does not go far enough.
In addition to citing Gregory, Galzinski has cited Pozar for the proposition that “a writ of
mandate may be issued to compel a public agency to follow its own internal procedures.”
But defendants do not mention Pozar, except to note that Gregory cited Pozar. Thus,
they never address whether Pozar supports Galzinski’s argument that they have a
ministerial duty to follow the citizen complaint procedure the department established and
made available to the public pursuant to Penal Code section 832.5, subdivision (a)(1).
In fact, Pozar does support Galzinski’s argument. At issue in Pozar was whether
Caltrans had a ministerial duty “to follow its published procedure for resolving
discrepancies in bid figures.” (Pozar, supra, 145 Cal.App.3d at p. 270.) At the time,
“[t]he form Caltrans supplie[d] for bids or proposals contain[ed] the following language
as to discrepancies between per-unit and unit price totals: ‘In case of discrepancy
between the item price and the total set forth for a unit basis item, the item price shall
8
prevail, provided, however, if the amount set forth as an item price is ambiguous,
unintelligible or uncertain for any cause, or is omitted, or is the same amount as the entry
in the “Total” column, then the amount set forth in the “Total” column for the item shall
prevail and shall be divided by the estimated quantity for the item and the price thus
obtained shall be the item price.’ ” (Id. at p. 271.) The petitioner in Pozar had submitted
a proposal on a contract for a highway construction project that included an estimated
quantity of 90 tons of one required product, with a proposed unit price of $20 per ton and
a proposed total price of $18,000. (Id. at p. 270.) As the appellate court observed, “One
of the figures [wa]s obviously incorrect. If the correct unit price [wa]s $20, the total price
would be $1,800. If the $18,000 total [wa]s correct, the correct unit price would be $200
per ton.” (Ibid.)
Initially, Caltrans “[f]ollow[ed] its established practice and the provision
[contained on the bid form and] calculated [Pozar]’s total bid using the per-unit price
($20) times the estimated quantity (90 tons). Thus calculated, [Pozar]’s total bid was the
lowest received. The bid was then referred to the Caltrans legal office for an opinion.
The legal office concluded the entire bid was uncertain because of the discrepancy and
that application of the item price priority rule would be arbitrary. Noting that the
Caltrans engineer had estimated [the product] cost at $300 per ton, the legal office
concluded [Pozar] could not have intended to bid $20 per ton and the total bid should
include $18,000 for [the product] and be $1,705,980. Caltrans accepted the opinion and
decided to award the contract to another bidder.” (Pozar, supra, 145 Cal.App.3d at
p. 271.)
When the superior court denied him relief, Pozar petitioned for a writ of mandate
from this court, and the court granted his petition and issued a peremptory writ of
mandate without first issuing an alternative writ. (Pozar, supra, 145 Cal.App.3d at
pp. 271-272.) As the court explained, “[t]his court has no power to direct the award of a
public contract to any individual. [Citation.] We can, however, direct an agency to
9
follow its own rules when it has a ministerial duty to do so or when it has abused its
discretion. [Citation.] Here, . . . we are concerned with a ministerial duty. Caltrans’ own
rules obligate it to accept the per-unit price in the absence of specified circumstances,
none of which are here present. The per-unit price of $20 is neither ambiguous,
unintelligible, uncertain, nor otherwise within any exception to the rule.” (Id. at p. 271.)
Pozar thus stands for the proposition that a “published procedure” adopted by a
public entity which provides that the public entity will do a certain thing (such as
calculate, in a particular manner, a bid with an apparent discrepancy in it) can provide the
basis for a ministerial duty that may be enforced by means of a writ of mandate. That
proposition governs here, especially because (as we will explain hereafter) the
department published the procedure here pursuant to a statutory mandate.
The facts here show that, in compliance with its duty under Penal Code
section 832.5, subdivision (a)(1), the department established a procedure to investigate
complaints by members of the public against the department’s personnel and made a
written description of the procedure available to the public by means of a brochure.
Under that procedure, as described in the brochure, a citizen’s complaint against a
department employee “may be investigated in one of two ways”: “It will either be
forwarded to the employee’s supervisor for inquiry or to the Internal Affairs Division for
investigation.” (Italics added.) Additionally, out of “four possible findings,” “[t]he Chief
of Police will render a finding in each case”: sustained, not sustained, exonerated, or
unfounded. (Italics added.) Finally, the complainant “will be notified of the finding in
writing at the conclusion of the investigation.” (Italics added.)
As we see it, based on its plain, mandatory terms, the department’s published
procedure on handling citizen complaints against department personnel imposes a
ministerial duty on the department and its personnel to do the following things:
10
(1) A citizen’s complaint must be forwarded to the supervisor of the employee
who is the subject of the complaint or to the internal affairs division for investigation;3
(2) An investigation of some sort must be conducted;
(3) Following that investigation, the Chief of Police must render one of four
possible findings: sustained, not sustained, exonerated, or unfounded;
(4) The complainant must be notified in writing of the finding rendered at the
conclusion of the investigation.
Under Pozar, just as Caltrans had a ministerial duty arising from the mandatory
terms in its own published procedure “to accept the per-unit price in the absence of
specified circumstances” (Pozar, supra, 145 Cal.App.3d at p. 271), defendants here had a
ministerial duty arising from the mandatory terms in the department’s published
procedure to: (1) forward Galzinski’s complaint to either the supervisor of the employees
who were the subject of the complaint or to the internal affairs division, (2) investigate
the complaint, (3) render one of the four possible findings, and (4) notify Galzinski in
writing of the finding rendered at the conclusion of the investigation.
Although Pozar alone is sufficient to support this conclusion, we find further
support for it in the fact that the department imposed the foregoing obligations upon itself
by establishing and publishing its procedure in fulfillment of the statutory duty imposed
upon it by Penal Code section 832.5, subdivision (a)(1). It may be true that nothing in the
statute required the department to use the mandatory terms the department used in its
3 We do not find any legal significance in the fact that the procedure provides that a
complaint will be forwarded to the employee’s supervisor for “inquiry” or to the internal
affairs division for “investigation.” This is so because the procedure provides that both
of these are “ways” in which the complaint will be “investigated.” Furthermore, the
statute that compelled the department to establish the procedure in the first place requires
the establishment of a procedure “to investigate complaints.” (Pen. Code, § 832.5,
subd. (a)(1).) Thus, even an “inquiry” by an employee’s supervisor must qualify as an
“investigation.”
11
procedure. Nevertheless, having chosen to use those terms, the department cannot escape
its obligation to follow those terms without defeating the very purpose of the statute
pursuant to which the department acted in adopting the procedure in the first place. This
is so because the statutory mandate requiring a police department to “establish a
procedure to investigate complaints by members of the public against [the department’s]
personnel” and to “make a written description of the procedure available to the public”
would be meaningless if the department had no duty to comply with its own published
procedure. Why publish a procedure if you have no obligation to follow it? To accept
defendants’ argument that they had no duty to follow the mandatory terms of the
department’s published procedure, because the terms of that procedure were not
mandated by regulation or statute, would defeat the very reasonable and settled
expectations of the public, who are the intended beneficiaries of Penal Code 832.5. That
is a result we cannot countenance. Thus, we conclude defendants have a ministerial duty
to follow the mandatory terms of the department’s published procedure for handling
citizen complaints of police misconduct.
The next question is whether Galzinski has a right to the issuance of a writ of
mandate compelling defendants to perform that ministerial duty with respect to his
complaint. In his writ petition, Galzinski sought relief focused on the second and third
obligations we have identified: specifically, he sought a writ of mandate compelling
defendants to “properly investigate [his] complaint . . . and/or make official findings as to
the validity of [his] allegations.” As we will explain, we conclude Galzinski is entitled to
the relief he sought.
With respect to the second obligation imposed by the procedure -- the obligation
to investigate -- Galzinski contends that defendants did not investigate his complaint;
however, that does not appear to be true. Notably, the department’s published procedure
does not require any particular type of “investigation.” To the contrary, the brochure
notes that “[e]ach allegation is examined on its own merits” and only “[f]ormal
12
investigations require investigators to contact all available witnesses, including police
officers, examine any relevant physical evidence, and gather all information pertinent to
each allegation made in the complaint.” The brochure does not provide that every
complaint will receive a formal investigation. Thus, while the department and its
personnel have a ministerial duty to conduct some sort of investigation into every
citizen’s complaint, the procedure leaves it to the discretion of the department and its
personnel to determine what kind of investigation is reasonably necessary in each case.
(See Elder v. Anderson (1962) 205 Cal.App.2d 326, 331 [“Discretionary acts are those
wherein there is no hard and fast rule as to the course of conduct that one must or must
not take”].) “A writ cannot be used to control a matter of discretion.” (Excelsior College
v. Board of Registered Nursing (2006) 136 Cal.App.4th 1218, 1238.) Still, “[a]lthough
mandate will not lie to control a public agency’s discretion, that is to say, force the
exercise of discretion in a particular manner, it will lie to correct abuses of discretion.”
(Helena F. v. West Contra Costa Unified School Dist. (1996) 49 Cal.App.4th 1793,
1799.)
Here, it appears from the letter from Sergeant Marshall dated July 3, 2014, that
Galzinski’s complaint was “reviewed” but “no further action” was taken on it because the
internal affairs division determined that the complaint could be resolved “[b]ased upon
the information [Galzinski] provided.” While we disagree with Galzinski that the mere
review of the complaint constituted no investigation, we nonetheless conclude that by
conducting no investigation of Galzinski’s allegations other than reviewing his
complaint, defendants abused their discretion. This is so because a mere review of the
complaint indisputably could not have sufficed to allow the Chief of Police to render one
of the four possible findings required by the department’s published procedure.
Galzinski’s complaint had three aspects: First, he complained that biological
samples were collected from him without a warrant or probable cause. Second, he
complained that none of the reports completed by the three officers explained or
13
confirmed “why, where, when, how, and by who the evidence was collected, and the
reason this information was expressly left out of [the] reports.” Third, he complained that
“[n]o receipt or documentation of the tests done [on the samples] and the results of such
tests were []ever turned over to [him] at anytime.” The four possible findings on these
allegations were sustained (“The investigation disclosed enough evidence to clearly prove
the allegation”), not sustained (“The investigation failed to reveal enough evidence to
clearly prove or disprove the allegation”), exonerated (“The act which proved the basis
for the complaint did occur; however investigation revealed the act was justified, lawful
and proper”), or unfounded (“The investigation has produced sufficient evidence to prove
that the act or acts alleged did not occur”). The descriptions of the four possible findings
provided in the department’s published procedure plainly imply that any investigation
conducted will attempt to determine whether the facts alleged in the complaint are true,
which can be the basis for a sustained or exonerated finding, or untrue, which is the basis
for a unfounded finding. If the investigation does not disclose enough evidence to clearly
prove the truth or falsity of the alleged facts, then the appropriate finding is not sustained.
Here, the mere review of Galzinski’s complaint could not have provided the Chief of
Police with any basis to find Galzinski’s factual allegations true or untrue, or with any
basis to find that there was insufficient evidence to clearly prove or disprove the
allegations. Because the mere review of the complaint could not have sufficed to allow
the Chief of Police to render one of the four possible findings required by the
department’s published procedure, defendants abused their discretion by conducting no
further investigation of Galzinski’s allegations other than reviewing his complaint. This
provides a basis for issuance of the writ Galzinski sought from the superior court.
With respect to the third obligation imposed by the published procedure -- the
obligation of the Chief of Police to render one of the four possible findings -- that
obligation was not satisfied here because the Chief of Police rendered no finding. Rather,
Sergeant Marshall merely declared in his letter dated July 3, 2014, that the issues
14
Galzinski raised “pertain[ed] to points of law which should have been litigated during
[his] criminal trial” and “[t]herefore, the proper venue for resolving [his] complaint
would be through the appeals process.” This is not one of the four possible findings
required by the department’s procedure. Moreover, the superior court’s conclusion that
this disposition was “essentially” a determination that the officers against whom the
complaint was made were “ ‘exonerated’ ” cannot be sustained. Under the department’s
procedure, exoneration is a finding that “[t]he act which proved the basis for the
complaint did occur; however investigation revealed the act was justified, lawful and
proper.” The conclusion that Galzinski should pursue his complaint in another venue was
not, by any stretch of the imagination, a determination that the officers did what
Galzinski accused them of doing, but they were justified in doing so; thus, it was not an
exoneration. To the extent the superior court relied on arguments defense counsel made
at the hearing on the writ petition to justify the actions of the accused officers to support
the court’s conclusion that the department had “essentially found the officers . . . were
‘exonerated,’ ” those post hoc arguments could not substitute for an actual, proper
disposition of Galzinski’s complaint by the department in accordance with the
department’s published procedure.
Furthermore, the assertion that Galzinski should have pursued the resolution of his
complaint “through the appeals process” following his conviction on the charges for
which he was arrested is simply wrong. The issue raised by Galzinski’s citizen’s
complaint was not whether he was entitled to some relief from his criminal conviction
because of the handling of the biological samples taken from him following his arrest.
Obviously, that issue would have to be pursued in another venue. The issue raised by
Galzinski’s complaint was whether the officers he named in his complaint committed acts
of misconduct by doing what he alleged they did -- nothing more and nothing less. By
requiring the department to establish and publish a procedure for investigating complaints
of misconduct by department personnel, Penal Code section 832.5 provided Galzinski
15
with the right to submit his complaint to the department and the right to have his
complaint resolved by the department in conformance with the terms of the procedure the
department established and published. The department simply had no right to resolve
Galzinski’s complaint by essentially telling him he was in the wrong place, just as the
superior court had no right to tell him that the officers were “essentially” “ ‘exonerated’ ”
because of defendants’ post hoc justifications offered at the hearing on Galzinski’s writ
petition. Thus, the Chief of Police’s failure to render one of the required findings as to
each of Galzinski’s allegations of misconduct also provides a basis for issuance of the
writ Galzinski sought from the superior court.
For all of the foregoing reasons, we conclude the superior court erred in denying
Galzinski’s writ petition.
DISPOSITION
The judgment is reversed, and the case is remanded to the superior court with
directions to enter a new judgment granting Galzinski’s petition for a writ of mandate.
Galzinski shall recover his costs on appeal (if any). (Cal. Rules of Court, rule 8.278(a).)
/s/
Robie, J.
We concur:
/s/
Hull, Acting P.J.
/s/
Butz, J.
16