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 *659officer acting is exempt from liability.’ ” Hennessy v. Webb, 245 Ga. 329, 330 (264 SE2d 878); quoting Partain v. Maddox, 131 Ga. App. 778 (206 SE2d 618); and see Nelson v. Spalding County, 249 Ga. 334 (290 SE2d 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 SC 984, 47 LE2d 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.
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 constitutional or other protection from the non-performance of his statutory, mandatory, non-discretionary acts which are not judicial or quasi-judicial in character. Imbler held only “that in initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for damages. . . .” (Emphasis supplied.) Id., p. 431.
The appellee argues that the decision to dismiss a case is not a ministerial function but is a judiciál act or, at least, a quasi-judicial act entitled to qualified, good-faith immunity. But in this case the decision to dismiss had already been made and no more discretion remained. Only the ministerial act of releasing the prisoner remained. The inquiry underlying the issue of immunity depends upon the “functional nature of the activities rather than [the prosecutor’s] status.” Imbler, supra, p. 430; Marrero v. City of Hialeah, 625 F2d 499, *660504 (5th Cir. 1980). Thus, the mere status of being district attorney gives no immunity for non-performance of his statutory mandatory duties, notwithstanding anything given to him by the Georgia Constitution for the “performance of his duties.” The status of the officer is immaterial; “the question depends on the character of the act.” Hennessy, supra at 330-331. Hence, the critical issue is whether the act was judicial or quasi-judicial (discretionary) or ministerial (not discretionary.)
As Marrero, supra, makes clear, it is only the overriding public policy which necessitates and allows prosecutorial immunity in the first place, and “although the Imbler [absolute immunity] umbrella may be necessary to shield a prosecutor from a rain of private suits challenging the performance of his quasi-judicial duties, there simply is no reason to construct a canopy to cover a prosecutor’s activities which lie outside his role as advocate.” (Emphasis supplied.) Id., p. 510.
In all due respect to the majority’s opinion, it cannot possibly be said that the unlawful imprisonment of Holsey, by reason of the appellee’s failure to perform the statutory, ministerial, mandatory non-discretionary act of notifying him that he was no longer charged with any crime, was an act “intimately associated with the judicial phase of the criminal process.” There was no more “judicial phase.” There was no more “criminal process.” The discretionary, judicial or quasi-judicial act of deciding whether to drop criminal charges had already been done.
There was no more discretion to exercise in the matter, as there was in the cases cited by the majority. The law demanded Holsey’s release from jail. The public policy that provides absolute or qualified immunity for judicial and quasi-judicial acts is the good public policy of ensuring the independence of the jurisprudential process, and the integrity of police powers in our society. But there is no conceivable good public policy, lurking in the guise of such immunity, that could give the prosecution the power to imprison a citizen when there is no criminal action pending against him.
The only result of contrary thinking is the destruction of the integrity of the police power in this State, and in the jurisprudential system. No good can come of it. It is wrong. To deny immunity for unlawful imprisonment resulting from failure to perform a statutory, non-discretionary act, does not make the slightest scratch on the face of the good policy which allows immunity for a discretionary judicial or quasi-judicial prosecutorial act. Particularly in this case, denying immunity does not threaten that good policy. It strengthens it by leaving its integrity undiluted by false notions that a public officer’s mere status sets him above the law. The majority conclusion posits an interesting question. If a district attorney “forgets” to authorize the *661release of a prisoner, where charges have been dismissed or not processed for a period of three or four or five years, would we reach the same result? If not, why not? The legal principles remain the same.
With full respect for the opinion of the majority, I say the statutory, mandatory non-discretionary requirement to notify Holsey that there was no criminal prosecution against him, is entitled to no prosecutorial, governmental, judicial, or quasi-judicial immunity whatsoever; and further, to say that the act of leaving the appellant in jail for 40 days is entitled to some immunity, places an ineradicable blotch upon the integrity of the entire public policy underlying government and judicial immunity, by placing the judicial officer or prosecutor above the law, by reason of his status alone.
I therefore respectfully, but strongly, dissent.