641 F.2d 1295
United States Court of Appeals,

Ninth Circuit.

John Houston SELLARS, Plaintiff-Appellant,

v.

Raymond K. PROCUNIER et al., Defendant-Appellee.

No. 78-1120.

Argued and Submitted May 15, 1980.

Decided April 9, 1981.
*1297 John Houston Sellars, San Diego, Cal., for plaintiff-appellant.
Ramon De La Guardia, Sacramento, Cal., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of California.

Before HUG and ALARCON, Circuit Judges, and BLUMENFELD [FN*], District Judge.
FN* Honorable M. Joseph Blumenfeld, United States District Judge, District of Connecticut, sitting by designation.

ALARCON, Circuit Judge:
Petitioner John Houston Sellars ("Sellars") is an inmate of the California Mens Colony at San Luis Obispo. Respondent Procunier was chairman of the California Adult Authority.[FN1] Petitioner filed this action in district court, alleging that Procunier and other California Adult Authority officials had conspired to deprive him of rights under the first, fifth, sixth, eighth and fourteenth amendments by giving him a parole release date that requires him to serve an excessively long prison sentence. The district court granted summary judgment for the defendants on the ground that parole board members are absolutely immune to suit under the Civil Rights Act ( 42 U.S.C. s 1983)[FN2] for actions taken when processing parole applications.
FN1. Under California's repealed Indeterminate Sentence Law, the California Adult Authority fixed the prison term and set the parole release date of every person sentenced by a trial court judge to state prison. Subsequent to the filing of this lawsuit, the State of California abolished the Adult Authority and replaced it with the Board of Prison Terms. Cal.Penal Code s 5078. California also repealed its Indeterminate Sentence Law and replaced it with a Determinate Sentence Law Cal.Penal Code s 1170 et seq., under which prison terms are now set by trial judges pursuant to standards prescribed by the legislature.
FN2. 42 U.S.C. s 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The question before us is whether parole board members enjoy any immunity from civil rights suits brought against them by prisoners,[FN3] and if so, whether that immunity is absolute or qualified.[FN4]
FN3. We leave to another day the question whether parole board officials enjoy any immunity from civil rights suits brought by persons injured by a dangerous parolee. Cf. Grimm v. Arizona Bd. of Pardons & Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977) (parole board officials not immune from suits arising out of grossly negligent or reckless release of highly dangerous prisoners).
FN4. If an officer has absolute immunity from s 1983 suit, the trial court must dismiss any civil rights suit filed against that officer for actions taken within the scope of his or her official duty. Without inquiring into the merits by contrast, an officer who has qualified immunity can be liable under s 1983, but only for actions taken in bad faith, and not for actions that are merely negligent. See Imbler v. Pachtman, 424 U.S. 409, 419 n. 13, 96 S.Ct. 984, 989 n. 13, 47 L.Ed.2d 128 (1976).

*1298 FACTS

In 1973, petitioner was convicted of arson in Los Angeles County Superior Court. Petitioner's probation report indicates that within a 10-month period petitioner had ignited flammable liquid at the doors of four Los Angeles-area ballet studios. Petitioner's four children had been enrolled as students at the schools and he had apparently grown dissatisfied with the instruction they were receiving.
The sentencing judge characterized petitioner as "a grave danger to the community," and committed him to state prison on November 23, 1973. In 1975, an Adult Authority panel consisting of respondents Brown and Castro fixed petitioner's prison term at 11 years and set a parole date of December 21, 1983.
Petitioner then filed the instant suit, alleging that his release date was set in retaliation for his expression of political views and for his having filed habeas corpus and other petitions in various courts.
INTRODUCTION

The language of 42 U.S.C. s 1983 is broad and sweeping; "Every person" who, under color of state law or custom, "subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ...."[FN5] (emphasis added) "By its terms, s 1983'creates a species of tort liability that on its face admits of no immunities.' " Owen v. City of Independence, 445 U.S. 622, 634, 100 S.Ct. 1398, 1407, 63 L.Ed.2d 673 (1980), quoting Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128 (1976). The congressional debates surrounding the passage of s 1 of the Civil Rights Act of 1871, 17 Stat. 13 the predecessor of s 1983 confirm the broad sweep of the statutory language. See Owen v. City of Independence, 100 S.Ct. at 1408; Pierson v. Ray, 386 U.S. 547, 561-63, 87 S.Ct. 1213, 1221-22, 18 L.Ed.2d 288 (1967) (Douglas, J., dissenting).
FN5. See note 2 supra.
Despite the statutory language and the absence in the legislative history of any attempt to narrow that language, it is well established that certain classes of public officials enjoy at least some degree of immunity from suits under s 1983. The Supreme Court has utilized two approaches in determining whether a given public official is shielded in any degree from s 1983 liability. In some cases, the Supreme Court has held that some immunities survive s 1983 because at the time of s 1983's passage they were "so firmly rooted in the common law and (were) supported by such strong policy reasons that 'Congress would have specifically so provided had it wished to abolish (them.)' "Owen v. City of Independence, 100 S.Ct. at 1408, citing Pierson v. Ray, 386 U.S. at 555, 87 S.Ct. at 1218.
It is no longer the case, however, that immunity at common law in 1871 is the sine qua non for according public officials immunity under s 1983. In some circumstances, the Court has examined the "functional comparability" of the role of the official under scrutiny to the role of analogous officials who enjoyed immunity under common law in order to determine whether the modern-day official is entitled to any degree of immunity. See, e. g., Butz v. Economou, 438 U.S. 478, 512-17, 98 S.Ct. 2894, 2913-16, 57 L.Ed.2d 895 (1978); Imbler v. Pachtman, 424 U.S. at 423 n. 20, 96 S.Ct. at 991 n. 20; Scheuer v. Rhodes, 416 U.S. 232, 245-49, 94 S.Ct. 1683, 1691-92, 40 L.Ed.2d 90 (1974). Immunity for parole board officials was apparently not well established at common law in 1871 when s 1983 was enacted.[FN6] The *1299 question before us, therefore, is whether parole board officials enjoy an immunity from s 1983 liability under the test of "functional comparability."
FN6. Parole boards did not exist in 1871 when s 1983 was enacted. Prior to 1884, when Ohio became the first state to enact a statewide law governing the parole of adults by an administrative agency, paroles were doled out principally through the auspices of elected officials. See generally J. Bramer, Parole 19-43 (1926); G. I. Giardini, The Parole Process 5-16 (1959); G. Killinger, H. Kerper, P. Cromwell, Probation & Parole in the Criminal Justice System, 17-33 (1976).

The concept of absolute judicial immunity dates back to at least 1607. See Floyd v. Barker, 77 Eng.Rep. 1305, 1307 (Star Chamber 1607). In 1810, the New York Court of Appeals first approved the doctrine in this country. Yates v. Lansing, 5 Johns. 282 (N.Y.1810). The Supreme Court first approved the doctrine in Bradley v. Fisher, 80 U.S. (13 Wall) 335, 20 L.Ed. 646 (1871). The concept of absolute immunity for non-court personnel exercising certain adjudicatory functions, however, did not arise until the early twentieth century. See Gray, Private Wrongs of Public Servants, 47 Calif.L.Rev. 303 (1959) (hereinafter cited as Gray); Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv.L.Rev. 209 (1963); Jennings, Tort Liability of Administrative Officers, 21 Minn.L.Rev. 263 (1937); McCormack & Kirkpatrick, Immunities of State Officials Under Section 1983, 8 Rutgers Camden L.J. 65 (1976); Casenote, Torts-Governmental Immunity-Absolute Versus Qualified Immunity for Public Officials Acting in Quasi-Judicial Capacities, 24 Wayne L.Rev. 1513 (1978). This extension of absolute immunity to non-court personnel under the rubric "quasi-judicial" immunity was described by some critics as a dangerous erosion of the common law. See, e. g., Gray, supra at 347-48.

1. Absolute and Qualified Immunity

a. Absolute Immunity

Of the officials who have been accorded absolute immunity, judges and those performing judge-like functions are the most analogous, in our view, to parole board officials.[FN7]
FN7. Absolute immunity from s 1983 actions has been accorded to legislators, Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), judges, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), prosecutors, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), and to those who perform judge-like or prosecutor-like functions within a federal agency, Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Unlike other participants in the judicial process, defense counsel even if court appointed and compensated are not entitled to immunity. Ferri v. Ackerman, 444 U.S. 193, 100 S.Ct. 402, 62 L.Ed.2d 355 (1979) (court appointed defense counsel sued for malpractice by indigent defendant not entitled to immunity). There is a marked difference between defense counsel's responsibilities and those of other officers of the court. The judge and the prosecutor's primary duty is to represent the interests of society as a whole. In their conduct of their official duties, they may adversely affect a wide variety of different individuals, each of whom may be a potential source of future litigation. Immunity is necessary to forestall an atmosphere of intimidation, and to insure that these officials have a maximum ability to deal fearlessly with the public. By contrast, defense counsel whether appointed or privately retained has a duty not to the public at large, but to serve the undivided interests of the defendant. "The fear that an unsuccessful defense of a criminal charge will lead to a malpractice claim does not conflict with performance of that function. If anything, it provides the same incentive for appointed and retained counsel to perform that function competently."Id. at 409.
The cases granting absolute immunity to judges recognize that extraordinary reasons are required to justify the drastic step of barring the genuinely wronged individual from any redress against the wrongdoer. The Supreme Court has thus enunciated several policy reasons for striking the balance in these cases in favor of completely shielding the judge from suits under s 1983. The judge is in a unique posture in the adversary system. His or her sole task is to make impartial decisions in vigorously contested actions, to "decide '(c) ontroversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings.' "Butz v. Economou, 438 U.S. at 509, 98 S.Ct. at 2912 quoting Bradley v. Fisher, 80 U.S. (13 Wall) 335, 348, 20 L.Ed. 646 (1872). The threat of constant litigation against the decision-maker instituted by disappointed litigants is apparent: it cannot be gainsaid that "(t)he loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus."Butz v. Economou, 438 U.S. at 512, 98 S.Ct. at 2913. Judges "should not have to fear that unsatisfied litigants may hound (them) with litigation charging malice or corruption."Pierson v. Ray, 386 U.S. at 554, 87 S.Ct. at 1217.
Thus, the proper functioning and indeed the very survival of any independent, dispute-resolving*1300 system requires that the dread of subsequent lawsuits be prevented from becoming a factor in a judge's assessment of the merits of a case. Moreover, the judge's time which would be diverted to contesting such litigation could severely constrict the time available for the performance of his or her primary duties.[FN8] Absolute immunity, as the Supreme Court has acknowledged, leaves the genuinely wronged person without civil redress. However, broader societal concerns dictate that the balance be struck in favor of freeing judges from the constant fear of retaliatory suits. The alternative of qualified immunity, or no immunity at all, would disserve the public interest, because these officials would still be subject in some degree to vexatious litigation.
FN8. In 1869, Chief Justice Cockburn flailed the doctrine of judicial immunity in his dissent in Dawkins v. Lord Paulet, L.R.S.Q.B. 94 (1869). He wrote: "I am persuaded that the number of such actions (against judges) would be infinitely small and would be easily disposed of."Id. at 110. While the Chief Justice's argument may have had force in 1869, we do not believe it would be realistic in today's litigious era to discount the enormous burden and systemic costs that permitting civil rights suits against judges would impose on both the judge sued and on the federal courts themselves.
Nevertheless, the balance might not be struck in favor of absolute immunity were it not for the presence of safeguards built into the judicial process that tend to reduce the need for private damage actions as a means of controlling unconstitutional conduct. See Butz v. Economou, 438 U.S. at 512, 98 S.Ct. at 2913.[FN9]