Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-111
of :
: July 29, 1996
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. Da VIGO :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE DE WITT W. CLINTON, COUNTY COUNSEL, COUNTY OF
LOS ANGELES, has requested an opinion on the following question:
May a law enforcement agency investigate an allegation of police misconduct if the
prescribed information advisory form has not been signed by the person filing the allegation?
CONCLUSION
A law enforcement agency may investigate an allegation of police misconduct even
though the prescribed information advisory form has not been signed by the person filing the allegation.
ANALYSIS
Penal Code section 832.5, subdivision (a),1 provides as follows:
"Each department or agency in this state which employs peace officers shall
establish a procedure to investigate citizens' complaints against the personnel of such
departments or agencies, and shall make a written description of the procedure
available to the public."
1
All unidentified section references herein are to the Penal Code.
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The Legislature, through the adoption of section 832.5, has indicated its desire that complaints filed
with a law enforcement agency are to be encouraged. (Pena v. Municipal Court (1979) 96 Cal. App. 3d
77, 82.) The Legislature contemplated that when police misconduct was discovered in such
investigations, appropriate disciplinary action would be taken; the purpose of the statute is to have the
agency "investigate and remedy wrongdoing." (Id., at p. 82; 71 Ops.Cal.Atty.Gen. 1, 3 (1988).)
Section 148.6 was recently enacted (Stats. 1995, ch. 590, ' 1) to provide as follows:
"(a) Every person who files any allegation of misconduct against any peace
officer . . . knowing the report to be false, is guilty of a misdemeanor.
"(b) Any law enforcement agency accepting an allegation of misconduct
against a peace officer shall require the complainant to read and sign the following
information advisory, all in boldface type:
"YOU HAVE THE RIGHT TO MAKE A COMPLAINT AGAINST A
POLICE OFFICER FOR ANY IMPROPER POLICE CONDUCT. CALIFORNIA
LAW REQUIRES THIS AGENCY TO HAVE A PROCEDURE TO INVESTIGATE
CITIZENS' COMPLAINTS. YOU HAVE A RIGHT TO A WRITTEN
DESCRIPTION OF THIS PROCEDURE. THIS AGENCY MAY FIND AFTER
INVESTIGATION THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT
ACTION ON YOUR COMPLAINT; EVEN IF THAT IS THE CASE, YOU HAVE
THE RIGHT TO MAKE THE COMPLAINT AND HAVE IT INVESTIGATED IF
YOU BELIEVE AN OFFICER BEHAVED IMPROPERLY. CITIZEN
COMPLAINTS AND ANY REPORTS OR FINDINGS RELATING TO
COMPLAINTS MUST BE RETAINED BY THIS AGENCY FOR AT LEAST FIVE
YEARS.
"IT IS AGAINST THE LAW TO MAKE A COMPLAINT THAT YOU
KNOW TO BE FALSE. IF YOU MAKE A COMPLAINT AGAINST AN OFFICER
KNOWING THAT IT IS FALSE, YOU CAN BE PROSECUTED ON A
MISDEMEANOR CHARGE.
"I have read and understood the above statement.
"___________________________________________
Complainant"
We are asked whether a law enforcement agency may initiate an investigation and take appropriate
action in connection with a complaint of police misconduct where the information advisory form has
not been signed by the complainant. Essentially, if allegations of police misconduct are contained in
an anonymous or unsigned complaint, is the agency prohibited from investigating and taking
disciplinary action? We conclude that the agency is not so prohibited.
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In analyzing the terms of sections 148.6 and 832.5, we apply well established principles
of statutory construction. "When interpreting a statute our primary task is to determine the
Legislature's intent." (Freedom Newspapers, Inc. v. Orange County Employees Retirement System
(1993) 6 Cal. 4th 821, 826.) "To determine the intent of legislation, we first consult the words
themselves, giving them their usual and ordinary meaning." (DaFonte v. Up-Right, Inc. (1992) 2
Cal. 4th 593, 601.) "[A] statute `. . . is to be interpreted by the language in which it is written, and
courts are no more at liberty to add provisions to what is therein declared in definite language than they
are to disregard any of its express provisions.' [Citation.]" (Wells Fargo Bank v. Superior Court
(1991) 53 Cal. 3d 1082, 1097; see also Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50
Cal. 3d 370, 381.) "`A statute must be construed "in the context of the entire statutory system of which
it is a part, in order to achieve harmony among the parts." [Citation.]'" (People v. Hull (1991) 1
Cal. 4th 266, 272.) "A statute should be construed whenever possible so as to preserve its
constitutionality." (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal. 3d 1379,
1387.)
Applying these principles, we find that a "law enforcement agency . . . shall require the
complainant to . . . sign the . . . information advisory . . . ." (' 148.6, subd. (b).) Use of the term
"shall" indicates that the agency's duty is mandatory, not permissive or discretionary. (See West v.
State of California (1986) 181 Cal. App. 3d 753, 760; State of California v. Superior Court (1984) 150
Cal. App. 3d 848, 855; Camp v. Board of Supervisors (1981) 123 Cal. App. 3d 334, 348.)
However, section 148.6 does not prescribe a penalty for an agency's noncompliance
with its statutory duty. No consequences are stated; no sanctions are expressed. May we add a
penalty provision to the terms of the statute under the guise of statutory interpretation?
For example, a complainant refuses to sign the advisory form because of a fear of
official retaliation, concern about social ostracism, or merely a desire to preserve his or her privacy.
May we insert into section 148.6 a provision that such refusal removes the power and jurisdiction of the
agency to investigate the allegations, even if the allegations appear legitimate and substantial?
The courts have examined this general issue in a variety of contexts. A failure to
comply with a mandatory duty did not bar further action in Edwards v. Steele (1979) 25 Cal. 3d 406,
409-413 [administrative decision valid although hearing held and decision rendered after deadlines
specified in city charter]; City and County of San Francisco v. Cooper (1975) 13 Cal. 3d 898, 931
[wage resolution valid though enacted prior to the date designated in city charter]; Garrison v. Rourke
(1948) 32 Cal. 2d 430, 434-436 [judicial decision valid though rendered after statutorily prescribed
period]; Cake v. City of Los Angeles (1913) 164 Cal. 705, 709-710 [tax assessment valid although not
adopted within time limit prescribed by statute]; People v. Curtis (1986) 177 Cal. App. 3d 982, 987-989
[judicial order valid although hearing held after statutory deadline]; and Castorena v. City of Los
Angeles (1973) 34 Cal. App. 3d 901, 908 [reapportionment ordinance valid though enacted subsequent
to charter designated deadline]. In Curtis, the court relied upon language contained in French v.
Edwards (1872) 80 U.S. (13 Wall.) 506, 511 [20 L. Ed. 702, 703], which was also quoted with approval
in People v. McGee (1977) 19 Cal. 3d 948, 961. In French, Justice Fields declared:
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"There are, undoubtedly, many statutory requisitions intended for the guide of
officers in the conduct of business devolved upon them, which do not limit their power
or render its exercise in disregard of the requisitions ineffectual. Such, generally, are
regulations designed to secure order, system and dispatch in proceedings, and by a
disregard to which the rights of parties interested cannot be injuriously affected.
Provisions of this character are not usually regarded as mandatory unless accompanied
by negative words importing that the acts required shall not be done in any other
manner or time than that designated." (French v. Edwards, supra, 80 U.S. at 511.)
The absence of a "penalty for noncompliance, i.e., the consequences . . . in the legislation itself"
(Palmer v. City of Ojai (1986) 178 Cal. App. 3d 280, 293) is thus significant in determining whether a
public agency loses power and jurisdiction by its failure to act as required by law. Here, as previously
observed, section 148.6 is silent with respect to the consequences of a law enforcement agency's
noncompliance in obtaining a signed advisory form.
We have examined in detail the legislative history of the enactment of section 148.6 in
1995. Nothing therein remotely suggests that a law enforcement agency loses its authority to
investigate a complaint if the advisory form is unsigned. Obviously the signature is to establish that
the complainant has "read and understood" the information contained on the advisory form.
Finally, we are required to interpret section 148.6 in a manner that avoids any doubt as
to its constitutionality. (See Young v. Haines (1986) 41 Cal. 3d 883, 898; 66 Ops.Cal.Atty.Gen. 367,
368 (1983).) Both the federal Constitution (U.S. Const., 1st Amend.) and state Constitution (Cal.
Const., art. I, ' 3) protect the right of the people to petition government for the redress of grievances.
(See McIntyre v. Ohio Elections Comm'n (1995) ___ U.S. ___, 115 S. Ct. 1511, 1516-1517, 131
L. Ed. 2d 426; Zablocki v. Redhail (1978) 434 U.S. 374, 388; California Transport v. Trucking
Unlimited (1972) 404 U.S. 508, 510; Mine Workers v. Illinois Bar Assn. (1967) 389 U.S. 217, 222; City
of Long Beach v. Bozek (1982) 31 Cal. 3d 527, 532-535; Fair Political Practices Commission v.
Superior Court (1979) 25 Cal. 3d 33, 46-49; Matossian v. Fahmie (1980) 101 Cal. App. 3d 128,
135-137.) This constitutional right has been applied to anonymous complaints (see McIntyre v. Ohio
Elections Comm'm, supra, 115 S.Ct. at 1516 ["the anonymity of an author is not ordinarily a sufficient
reason to exclude [the publication] . . . from the protections of the First Amendment"]; Talley v.
California (1960) 362 U.S. 60, 64 ["persecuted groups and sects from time to time throughout history
have been able to criticize oppressive practices and laws either anonymously or not at all"]) and
undergirds the statutory right to file complaints of police misconduct (see Pena v. Municipal Court,
supra, 96 Cal.App.3d at 83 ["Many, if not most, allegations of police misconduct are also violations of
various criminal laws"]; Imig v. Ferrar (1977) 70 Cal. App. 3d 48, 55 [it is a policy of the law "to assure
utmost freedom of communication between citizens and public authorities whose responsibility is to
investigate and remedy wrongdoing"]; People v. Craig (1993) 21 Cal.App.4th Supp. 1, 5 ["the
importance of providing the community an avenue to report alleged misconduct by peace officers
overrides concerns that this process may be abused by individuals to falsely report police
misconduct"].)
The plain wording and legislative history of section 148.6, along with the governing
principles of statutory construction, including the duty to uphold the statute's constitutional validity, all
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support the conclusion that a law enforcement agency does not lose its power and jurisdiction to
investigate allegations of police misconduct even though it fails to secure the signature of the
complainant on the advisory form.
We thus conclude that a law enforcement agency may investigate an allegation of
police misconduct and take appropriate action based thereon even though the prescribed information
advisory form has not been signed by the person filing the allegation.
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