dissenting.
I respectfully join the dissent in the conclusions that the failure to perform a statutory administrative duty is involved, that the district attorney cannot escape responsibility by delegation of performance to a subordinate, and in the conclusion that the summary judgment was error. I cannot concur in the application of federal immunity doctrine or with the conclusion that the inactions complained of are outside the prosecution of a case.
First we must determine the nature of the tort claimed and its requisites, or we apply the wrong immunity doctrine. The defendant did not contend that Georgia law does not encompass a cause of action covering plaintiff’s complaint, so that issue is not before us and we must assume for the purpose of this decision that it does.
Plaintiff alleges that it is the custom and practice of defendant not to serve dead docket motions or the orders entered thereon on criminal defendants or their attorneys, as required by OCGA § 17-1-1 (a), that the failure to do so in plaintiff’s case resulted in his unauthorized continued incarceration for 40 days, and that he was damaged in the amount of $2,000 per day for loss of liberty and emotional distress.
In this case, then, the tort alleged is the violation of a public duty because it is a duty imposed by a valid statutory enactment of the legislature. OCGA § 51-1-1; Sutker v. Penn. Ins. Co., 115 Ga. App. 648, 651 (155 SE2d 694) (1967). The requirements of OCGA § 17-1-1 were added to the statutes in the Code of 1981. Prior to that, this provision apparently did not exist and the duties prescribed therein were not mandated by statute. The code provision defining tort, OCGA § 51-1-1, recognizes that a tort may be the violation of a public duty “if, as a result of the violation, some special damage accrues to the individual.”
*662The essence of plaintiff’s complaint is that he lost the value of his liberty and suffered compensable emotional distress because the district attorney did not serve his attorney with the dead docket motion or order. He does not claim that the inaction was reckless, or willful and wanton; he does not expressly claim that it was negligent or deliberate. He claims merely that it was a customary practice and occurred in his case. Defendant, in moving for summary judgment, offered no proof to contravene these two factual allegations.
The code provides that “When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” OCGA § 51-1-6. Violation of a statute is per se a tort if “ ‘the injured person falls within the class of persons it was intended to protect and . . . the harm complained of was the harm it was intended to guard against. [Cits.]’ ” Central Anesthesia Assoc. v. Worthy, 173 Ga. App. 150, 153 (325 SE2d 819) (1984) [affirmed 254 Ga. 728 (333 SE2d 829) (1985)].
Thus, plaintiff asserts a claim under state law, and it is clear that he does not assert a cause of action under 42 USC § 1983. That makes the federal cases cited by the majority, and other cases grappling with the question of prosecutorial immunity from civil rights claims under that provision, non-controlling. They are dealing with an immunity granted by federal case law, and we are not. Instead, we are dealing with a state cause of action, assuming there is one, and the degree of immunity, if any, which the state as sovereign chooses to grant to the state’s prosecutor. Federal cases construing and applying federal immunity may be instructive and persuasive, but they do not govern the issues here.
The distinctions between federally-provided immunity in federal suits and immunities recognized by Georgia in state suits are discussed in Thompson v. Spikes, 663 FSupp. 627, 640 (2) (S.D. Ga. 1987). The two doctrines take different approaches and contain different categories. Thus, the Imbler v. Pachtman, 424 U. S. 409 (96 SC 984, 47 LE2d 128) (1976), immunity analysis is inapplicable except to the extent that it may have been adopted in Georgia’s governmental immunity law. Imbler is a case brought under 42 USC § 1983, as are later cases involving good faith immunity such as Davis v. Scherer, 468 U. S. 183 (104 SC 3012, 82 LE2d 139) (1984), reh. den. 468 U. S. 1226. As to the qualified immunity in federal suits, see also Harlow v. Fitzgerald, 457 U. S. 800, 817-818 (102 SC 2727, 73 LE2d 396) (1982).
The absolute versus qualified immunity doctrine which is part of federal law was recently applied in Marx v. Gumbinner, No. 87-5449, 11th Cir., September 20, 1988. It is in that context that the dichotomy between prosecutorial and non-prosecutorial functions is made. Such *663a division, which relates to whether the complained-of action occurred “in connection with either the initiation of a prosecution or with activities undertaken in following up a prosecution,” Marrero v. City of Hialeah, 625 F2d 499 (5th Cir. 1980), cert. den., 450 U. S. 913 (101 SC 1353, 67 LE2d 337) (1981), is unnecessary under the Georgia doctrine of immunity. If it was a duty outside a prosecution, it would still be within the scope of his official duties. See Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980).
Whether the failure to act occurred in the course of a case prosecution or not is not determinative of Georgia immunity. If it were, there is no doubt that the violations complained of here were in the course of prosecution. Service comes as párt of the procedure of a criminal case, as the majority points out. The prosecution has not “ended” so as to fall outside the judicial process and into the sphere of prosecutorial activities which constitute non-judicial functions, such as campaigning for office or speaking to private or public groups. OCGA § 17-1-1 by its nature and scope encompasses actions to be performed, and the steps to be taken, in connection with criminal cases. It is a provision within the code title specifying the procedure to be followed in criminal cases.
The duties of the district attorney with respect to a case are not concluded when the “dead docket” order is entered. They continue, at least for the moment, until he has served notice. That is the whole point of plaintiff’s lawsuit. His quasi-judicial function is not past the final point in this regard. For one thing, the case is not finally disposed of because the presiding judge can still call it for trial at his pleasure. OCGA § 15-6-61 (4) (G). But the law imposes a duty to perform a ministerial act within that prosecutorial function, for the district attorney is to make service as a “party” to the penal action. OCGA § 17-1-1. It is “the character of the act” which is determinative. Hennessey v. Webb, supra at 331.
We must only determine whether the State law grants an absolute immunity, for that was the basis of summary judgment. Of course, if it does, it nearly swallows up the cause of action entirely, for a damage suit brought for non-compliance of OCGA § 17-1-1 would always be against the public prosecutor except when brought against the defendant’s own attorney.
I agree that the State does not grant an absolute immunity to the prosecutor from the suit as alleged and in the current state of the record. In Smith v. Hancock, 150 Ga. App. 80 (256 SE2d 627) (1979), the Court recognized the existence of a quasi-judicial immunity for prosecutors, stemming from the need to protect the prosecutor’s decision-making process from the fear of civil liability. This need is considered greater than the need to provide redress for harmful error. Considering the rationale for the immunity, it would not apply to *664statutorily-mandated acts because there is no room for validly deciding not to comply. No discretion is allowed. No prosecutorial judgment enters in. Such acts are not “quasi-judicial.” The code says do it; the freedom to make an untrammeled determination has been removed by the law itself, i.e., the enactment of OCGA § 17-1-1. “[A] suit may be brought against a State officer or agent where he acts illegally and in an unauthorized manner.” Cannon v. Montgomery, 184 Ga. 588 (2) (192 SE 206) (1937).
While it is true that the district attorney has complete discretion on whether1 to seek dead docketing, and such a decision would be absolutely immune, the same is not true regarding service of the motion and any order entered thereon. The latter two, which require merely ministerial acts, are the focus of plaintiff’s complaint.
Although OCGA § 17-1-1 never once states who is to serve the motion and the order, it is obvious that as in other cases, the obligation to serve the motion would be the movant’s. But the motion would not secure defendant’s release. It is the judge who has control of whether or not a case shall be so treated. OCGA § 15-6-61 (4) (G) provides for the dead docket, “to which cases shall be transferred at the discretion of the presiding judge and which shall only be called at his pleasure.”
The judge’s order would thus constitute the authority of the jailer to release the defendant, and the court could compel obedience to that order. OCGA § 15-1-3 (3). Although a mandatory duty to notify the attorney of the order lies also with the judge, OCGA § 15-6-21 (c), the scheme laid out in OCGA § 17-1-1 must be construed to impose a duty of service of “every order not entered in open court” on the party procuring it. That would be the district attorney in this case. The party is the State, and it can act only through its representative. Thus there was a duty; causal connection is a separate element which plaintiff must prove. See Central Anesthesia Assoc., supra, 254 Ga. at 730.
There is no absolute immunity provided by Georgia for this ministerial act. As to Georgia’s doctrine and the dichotomy between discretionary and ministerial acts which controls the application of immunity, see Hennessey v. Webb, supra; Nelson v. Spalding County, 249 Ga. 334, 336 (2) (a) (290 SE2d 915) (1982); Gray v. Linahan, 157 Ga. App. 227, 228 (276 SE2d 894) (1981); Shuman v. Dyess, 175 Ga. App. 213, 215 (2) (333 SE2d 379) (1985).
I have found no case acknowledging the existence of a qualified or limited immunity which would apply to a prosecutor’s ministerial acts. Instead, assuming he failed to comply with the notice duty imposed by a law aimed at the orderly and due administration of criminal cases, then the reasons he did not serve the motion and the order may be relevant to a defense.
*665Decided December 5, 1988 — Rehearing denied December 19, 1988 James N. Finkelstein, for appellant. Michael J. Bowers, Attorney General, John C. Joneg, Daryl A. Robinson, Senior Assistant Attorneys General, for appellee.In any event, the grant of summary judgment on the basis of absolute immunity was at best premature.