John Houston Sellars, Plaintiff-appellant, v. Raymond K. Procunier et al., Defendant-appellee, 641 F.2d 1295 (9th Cir. 1981)

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.¹  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. § 1983)²  for actions taken when processing parole applications.

The question before us is whether parole board members enjoy any immunity from civil rights suits brought against them by prisoners,³  and if so, whether that immunity is absolute or qualified.⁴ 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. § 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 ...."⁵  (emphasis added) "By its terms, § 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 § 1 of the Civil Rights Act of 1871, 17 Stat. 13 the predecessor of § 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).

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 § 1983. The Supreme Court has utilized two approaches in determining whether a given public official is shielded in any degree from § 1983 liability. In some cases, the Supreme Court has held that some immunities survive § 1983 because at the time of § 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 § 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 § 1983 was enacted.⁶  The question before us, therefore, is whether parole board officials enjoy an immunity from § 1983 liability under the test of "functional comparability."

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.⁷ 

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 § 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 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.⁸  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.

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 2913.⁹ 

b. Qualified Immunity

Qualified immunity has been accorded to certain state officials for decisions made in the good faith exercise of their official responsibilities.¹⁰  It has been recognized that some degree of immunity is necessary in order to insulate these public servants from the possibility of vexatious litigation. In addition, it is accepted that these officials must take prompt action based on information provided to them by third parties. Scheuer v. Rhodes, 416 U.S. at 246, 94 S. Ct. at 1691; Wood v. Strickland, 420 U.S. 308, 319, 95 S. Ct. 992, 999, 43 L. Ed. 2d 214 (1975). For that reason, it is thought to be unfair to subject them to liability for good faith actions based on information that later turns out to be incorrect, or for good faith actions taken under the press of time.

The cases have held, however, that such public officials do not require the complete protection afforded to judicial officials. Implicit in these decisions is a recognition of the distinction between judicial and political decision-making. We expect and require the judge to be an impartial fact finder. Decision making by a public official, on the other hand, is above all a political process. See Abood v. Detroit Board of Education, 431 U.S. 209, 228, 97 S. Ct. 1782, 1795, 52 L. Ed. 2d 261 (1977). We do not expect impartiality; rather we expect that an elected official will balance the demands of his or her constituency in making a decision, and that the decision will to some extent reflect the pressures exerted on the official by those with an interest in the controversy. Political decision-making unlike judicial decision-making is not a pristine process that must be protected at all cost from infection by fear of lawsuits. And although non-judicial executives do run some risk of civil right suits by citizens disgruntled for one reason or another, these suits cannot be expected with the same frequency as suits against judicial officers. Unlike judges or judge-like officials, state officials are not primarily adjudicators of disputes brought before them by advocates who legitimately expect impartial decisions. Because their posture is so different, the likelihood of suits by disappointed citizens is correspondingly lessened.

The narrow question before us is whether parole board officials are entitled to any immunity from § 1983 suits, and if so, whether they are entitled to the absolute immunity accorded to judges, and persons performing judge-like roles within federal agencies,¹¹  or rather to the more limited good faith immunity accorded to other state executive officials.

Prior to Scheuer v. Rhodes,¹²  it had been the rule in this circuit that members of a state parole board were absolutely immune from civil rights suits for actions taken when processing parole applications.¹³  In Johnson v. Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975), however, this court indicated that the rule of absolute immunity "may be obsolete" in light of the Scheuer decision.

While the Supreme Court has specifically left open the question of immunity under § 1983 for state parole board officers,¹⁴  the federal courts that have considered the question subsequent to Scheuer have almost without exception continued to grant parole board members absolute immunity.¹⁵ 

It has been suggested that following Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978), and O'Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1978), every state agent sued under § 1983 is entitled to assert a qualified immunity from damage liability. Procunier v. Navarette, 434 U.S. at 568, 98 S. Ct. at 863 (Stevens J., dissenting opinion).

We need not decide that broader question here; under Owen v. City of Independence, it is clear that parole board officials enjoy some degree of immunity from § 1983 suits. In Owen, 100 S. Ct. at 1409, the Court held that "(w)here the immunity claimed by the defendant was well-established at common law at the time § 1983 was enacted, and where its rationale was compatible with the purposes of the Civil Rights Act," Congress could not have meant to abolish that immunity by covert inclusion in the general language of § 1983. Administrative parole boards did not exist in the United States at the time § 1983 was enacted.¹⁶  Prior to the establishment of these boards in various states, parole was primarily granted through the auspices of the state governor.¹⁷  State governors and other executive officials enjoyed at common law an immunity from suit for acts done in good faith and without malice. See Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90. As successors to state governors in making parole decisions, state parole board members should enjoy at the least the same immunity enjoyed by governors and other state executives under the common law.

The question remains whether parole board officials are entitled to the greater immunity afforded judges, and those performing judge-like roles within federal agencies. In our view, parole board officials are entitled to absolute immunity from suits by prisoners for actions taken when processing parole applications. The "functional comparability" test set forth most explicitly by the Supreme Court in Butz v. Economou, 438 U.S. at 512-17, 98 S. Ct. at 2913-16, requires that we look not just to the title of a state or federal official, or to his or her location within the bureaucratic superstructure, but to the official's function as well in determining the question of immunity. If an official's role is functionally equivalent to that of a judge, the official will be granted equivalent immunity.

We believe that parole board officials perform functionally comparable tasks to judges when they decide to grant, deny, or revoke parole. The daily task of both judges and parole board officials is the adjudication of specific cases or controversies. Their duty is often the same: to render impartial decisions in cases and controversies that excite strong feelings because the litigant's liberty is at stake. They face the same risk of constant unfounded suits by those disappointed by the parole board's decisions.

Judges enjoy absolute immunity from civil rights suits in order to keep the judicial decision-making process pristine. As noted earlier, we expect and require the judge to be an impartial fact finder. When he or she weighs the merits of a case, we do not want the scales to be tipped by fear of litigation. The adjudicatory process simply could not work if the adjudicator had to anticipate a possible lawsuit from every dissatisfied litigant.

We believe that the same degree of protection must be accorded to the decision-making process of parole board officials. Just as the decision-making process of judges must be kept free from fear, so must that of parole board officials. Without this protection, there is the same danger that the decision-maker might not impartially adjudicate the often difficult cases that come before them. If parole board officials had to anticipate that each time they rejected a prisoner's application for parole, they would have to defend that decision in federal court, their already difficult task of balancing the risk involved in releasing a prisoner whose rehabilitation is uncertain against the public's right to safety would become almost impossible. Furthermore, time spent in depositions and on the witness stand defending their actions would leave these overburdened public servants with even less time to perform their crucial tasks.

To be sure, absolute immunity for parole board officials does leave the genuinely wronged prisoner without civil redress against the official whose malicious or dishonest actions deprive the prisoner of liberty. But qualifying that immunity would disserve the broader public interest.

"As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought ... better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation."

Imbler v. Pachtman, 424 U.S. at 428, 96 S. Ct. at 994, quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S. Ct. 803, 94 L. Ed. 1363 (1950).

Finally, the fact that petitioner cannot bring a § 1983 suit against California Adult Authority officials does not leave him totally unprotected from capricious or arbitrary decisions. Under California law, a prisoner serving an indeterminate term is entitled to have the upper limits of the term at a length proportionate to the prisoner's individual culpability, and to challenge the length of the term by way of habeas corpus.¹⁸  The prisoner has the right to apply for parole and to due consideration of the application,¹⁹  and, if parole is denied, a right to a statement of reasons why²⁰  and to periodic reconsideration of the denial.²¹  Once a parole date is set, the prisoner is entitled to routine reviews of his or her prison conduct to determine if the date should be advanced.²²  We believe that such safeguards, especially the right to habeas corpus relief, are sufficient to protect petitioner's constitutional rights.

AFFIRMED.

BLUMENFELD, District Judge, concurring specially:

I concur in the result.