Holsey v. Hind , 189 Ga. App. 656 ( 1988 )

Banke, Presiding Judge.

Appellant Holsey filed an action for damages against appellee Hind, the District Attorney of Dougherty County, Georgia, alleging that Hind’s office had caused him to be held in jail for 40 days without cause by failing to notify him or his attorney that certain criminal charges against him had been dead-docketed. Holsey appeals from the grant of Hind’s motion for summary judgment.

The appellant was arrested on May 23, 1985, based on warrants charging him with arson and murder. The following day, an assistant district attorney in the appellee’s office presented a written motion to a Dougherty County superior court judge asking that the charges be placed on the “dead docket” (see generally OCGA § 15-6-61 (4) (G)), for the stated reason that there was “insufficient evidence to convict at this time.” The trial judge granted the motion, but neither the jail officials, the appellant, nor his criminal defense attorney became aware of this development until July 3, 1985, on which date the appellant’s criminal defense counsel learned that the charges were no longer pending and immediately obtained the appellant’s release from custody.

The appellant contends that the district attorney’s office was under a statutory duty pursuant to OCGA § 17-1-1 to serve him or his attorney with a copy of the motion and order dead-docketing the charges but that it was the appellee’s custom and practice not to require his assistants to comply with this statutory duty. The appellee denies these allegations but asserts that even if they are true, he is insulated from liability for any resulting injury to the appellant pursuant to the doctrine of prosecutorial immunity. Held:

1. “ ‘The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties.’ Imbler v. Pachtman, 424 U. S. 409, 422 (96 SC 984, 47 LE2d 128) (1976). Prosecutors, like judges, should be free to make decisions properly within the purview of their official duties without being influenced by the shadow of liability. Therefore, a district attorney is protected by the same immunity in civil cases that is applicable to judges, provided that his acts are within the scope of his jurisdiction. Smith v. Hancock, 150 Ga. App. 80, 81 (256 SE2d 627) (1979). (Emphasis supplied.)

Not all actions undertaken by the district attorney in carrying out the functions of his office are considered “within the scope of his jurisdiction” as the prosecuting officer of the court. It appears to be well-settled that “ [although a prosecutor enjoys absolute immunity when engaging in quasi-judicial functions, he has only a qualified immunity when carrying out administrative or investigative functions.” Kadivar v. Stone, 804 F2d 635, 637 (11th Cir. 1986), citing Marrero v. City of Hialeah, 625 F2d 499, 504-05 (5th Cir. 1980). Thus, our initial concern in this case is within the threshold question of whether the alleged breach of duty involved a “quasi-judicial” or merely an administrative function of the district attorney’s office.

This issue cannot be resolved merely by inquiry into whether the alleged breach of duty involved an exercise of judgment or discretion on the part of the appellee or his assistants. No one, for example, would seriously contend that a decision by a prosecutor on such a matter as hiring or firing a secretary would be anything other than administrative, although such a decision would obviously involve an exercise of judgment or discretion connected with the duties of his office. The determining factor instead appears to be whether the act or omission is “ ‘intimately associated with the judicial phase of the criminal process.’ ” Barbera v. Smith, 836 F2d 96, 99 (2d Cir. 1987), citing Imbler v. Pachtman, supra, 424 U. S. at 430-431.

Pursuant to this rationale, we conclude that although the failure to serve the appellant or his counsel with a copy of the motion and order resulting in the dead-docketing of the charges may not have involved the exercise of any prosecutorial discretion or judgment, such conduct, being intimately associated with the judicial phase of the criminal process, was nevertheless within the scope of the appellee’s absolute prosecutorial immunity. Accord Atkins v. Lanning, 556 F2d 485 (10th Cir. 1977) (holding district attorney immune from liability for mistake in causing wrong person to be named in arrest warrant). We accordingly hold that the trial court did not err in granting the appellee’s motion for summary judgment.

2. The appellant’s remaining enumeration of error, involving the trial court’s grant of a protective order preventing discovery in the case, is rendered moot by the foregoing.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Sognier, Pope and Benham, JJ., concur. Birdsong, C. J., Carley and Beasley, JJ., dissent.