Holsey v. Hind

Page 200

377 S.E.2d 200

189 Ga.App. 656

HOLSEY v. HIND.

No. 76405.

Court of Appeals of Georgia.

Dec. 5, 1988.

Rehearing Denied Dec. 19, 1988.

Certiorari Denied Jan. 19, 1989.

James N. Finkelstein, Albany, for appellant.

Michael J. Bowers, Atty. Gen., John C. Jones, Daryl A. Robinson, Sr. Asst. Attys. Gen., for appellee.

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 S.E.2d 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 "[a]lthough 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 F.2d 635, 637 (11th Cir.1986), citing Marrero v. City of Hialeah, 625 F.2d 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 F.2d 96, 99 (2d Cir.1987), citing Imbler v. Pachtman, supra, 424 U.S. at 430-431, 96 S.Ct. at 995-96.

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 F.2d 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 and McMURRAY, P.JJ., and SOGNIER, POPE and BENHAM, JJ., concur.

BIRDSONG, C.J., and CARLEY and BEASLEY, JJ., dissent.

BIRDSONG, Chief Judge, dissenting.

Appellant Holsey sat in jail for 40 days because the appellee, for reasons known to him, failed to authorize the appellant's release.

The majority of this court thinks he has no redress for this under our system of American jurisprudence.

The majority decision states the district attorney had no duty to prevent this unauthorized imprisonment, notwithstanding the mandatory provisions of OCGA § 15-18-6(10) making it his special duty to perform the notification duties required by law at § 17-1-1. The majority in its decision states the appellee is immune from any action for his having allowed Holsey to remain in jail for 40 days as this clearly was "intimately associated with the judicial phase of the criminal process. [Cit.]" This finding ignores one of the law's basic precepts, "ignorantia eorum quae quis scire tenetur non excusat. Ignorance of those things which one is bound to know excuses not." Black's Law Dictionary.

How can this be? How can it be said that to imprison a man for 40 days without cause in direct violation of a statutory mandate which would have prevented this incarceration, is an act "intimately associated with the judicial process?" If the criminal prosecution is ended, then there is no "judicial process" pending. For 40 days there was no judicial process of prosecution against Mr. Holsey. There is no acceptable excuse for this injustice, and there is no law or rule of law which gives a prosecutor the insidious power to do this sort of thing by shielding him with immunity.

I have no quarrel whatever with the principles of sovereign, and particularly, judicial immunity, for acts of judicial discretion and acts "intimately associated with the judicial process"; but this was not one of them.

"It is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well established that 'where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as a result of an erroneous decision; provided the acts complained of are done within the scope of the officer's authority.' These discretionary acts 'lie midway between judicial and ministerial ones. The name of the public officer or officers is immaterial, and the question depends on the character of the act. If the act done for which recovery is sought is judicial or quasi-judicial in its nature, the officer acting is exempt from liability.' " Hennessy v. Webb, 245 Ga. 329, 330, 264 S.E.2d 878; quoting Partain v. Maddox, 131 Ga.App. 778, 206 S.E.2d 618; and see Nelson v. Spalding County, 249 Ga. 334, 290 S.E.2d 915.

This rule serves a good public policy. While the Georgia courts have not dealt much with the peculiar nature of prosecutorial immunity, the federal courts, particularly in the realm of suits filed under 42 USC § 1983, have done so. The principles and policies underlying each are the same; but in matters of indicted or prosecutorial nature, the freedom to act with independent discretion is the refining element.

In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128, the United States Supreme Court established that among the "reasons for absolute immunity" is the overriding public policy necessity that the prosecutor, like judges, be completely free to perform his duties without the concerns of harassment and influence. " 'The office of public prosecutor is one which must be administered with courage and independence. Yet how can this be if the prosecutor is made subject to suit by those whom he accuses and fails to convict? ... The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office. The work of the prosecutor would thus be impeded and we would have moved away from the desired objective of stricter and fairer law enforcement.' [Cit.]" Id., pp. 423-424, 96 S.Ct. pp. 991-992.

The policy objects announced in Imbler are not only good, but are essential to the integrity of police power in a free society, so much so that it is a part of the State Constitution that "District Attorneys shall enjoy immunity from private suit for actions arising from the performance of their duties." Constitution of the State of Georgia, Art. VI, Sec. VIII, Par. I. (Emphasis supplied.) With this provision I firmly agree. But the district attorney is given no...