specially concurring.
This is a negligence action for damages allegedly sustained by the plaintiffs following the release of a prisoner named Hough from the Multnomah County Detention Center. The case comes to us on summary judgment. From the materials in the trial court record, one can infer that the corrections officers intentionally disregarded the injunction of a federal judge in making a release decision. On the other hand, it may be inferred that the corrections officers made a mistake, either as to the matrix scores of the prisoners, or in tabulating the matrix numbers. The case turns on whether a form of absolute judicial immunity extends to the corrections officers and their employer, Multnomah County.
The general rule is that a judge acting in his or her judicial capacity is entitled to absolute immunity from damage claims. Praggastis v. Clackamas County, 305 Or 419, 426, 752 P2d 302 (1988); McCray v. State of Maryland, 456 F2d 1, 3 (4th Cir 1972). Absolute judicial immunity protects judges against all damage claims, including claims of malice or corruption. Pierson v. Ray, 386 US 547, 554-55, 87 S Ct 1213, 18 L Ed 2d 288 (1967), over’d on other grounds by Harlow v. Fitzgerald, 457 US 800, 396 S Ct 2727, 73 L Ed 2d 396 (1982); McCray v. State of Maryland, supra, 456 F2d at 3.
The reason for the rule of absolute immunity was stated in Praggastis v. Clackamas County, supra.
“This court recognized the existence and the limitations on the doctrine of judicial immunity in Shaw v. Moon, 117 Or 558, 245 P 318 (1926). The common law recognized that there is a public good to be gained from the principled and fearless decision-making of judicial officers freed from concern over suits by disappointed litigants. To gain this good, it is necessary to cloak judicial officers with immunity from civil liability for their acts, so long as these acts are within the jurisdiction of the officer.” 305 Or at 426.
Praggastis also states a corollary rule that may apply in this case under which other persons performing acts “associated with the judicial process” are entitled to immunity protection.
*76“Immunity for judicial acts extends not merely to judges. Other officials who are performing acts associated with the judicial process may be protected as well. Watts v. Gerking, 111 Or 641, 222 P 318, 228 P 135 (1924). This court has indicated that the common-law immunity for judicial and quasi-judicial acts is part of those immunities preserved for discretionary acts under [the Oregon Tort Claims Act], ORS 30.265(3).
“Judicial immunity depends on the performance of a judicial function. When such judicial functions are performed by a public officer other than a judge, the immunity is often referred to as quasi-judicial immunity, but this is a distinction of name and not a distinction of immunity. Watts v. Gerking, supra; see also Imbler v. Pachtman, 424 US 409, 423, 96 S Ct 984, 47 L Ed 2d 128 (1976). Judicial immunity is granted or withheld on the basis of the nature of the function being performed, and not on the basis of the office. Shaw v. Moon, supra; see also Forrester v. White, 484 US [219, 227], 108 S Ct 538, 98 L Ed 2d 555 [(1988)].” 305 Or at 426-27 (footnote omitted).
A case cited in the majority opinion, Valdez v. City and County of Denver, 878 F2d 1285 (10th Cir 1989), states the same proposition. It cites and discusses cases involving the execution of judicial decrees by non-judges and states that such acts are such an “integral part of the judicial process” that officers executing court orders are shielded by absolute immunity. Id. at 1287-88.
In Oregon, prisoner release decisions are judicial decisions. The authority to release defendants resides in the court. ORS 135.245(2). The sheriff of a county possesses no independent authority to make release decisions. ORS 135.215 provides:
“The commitment [of the defendant] shall be directed to the sheriff of the county in which the [committing] magistrate is sitting. Such sheriff shall receive and detain the defendant, as thereby commanded, in a jail located in the county of the sheriff or, if there is no sufficient jail in the county, by such means as may be necessary and proper therefor or by confining the defendant in the jail of an adjoining county within or without the state.” (Emphasis added.)
*77In many Oregon counties, because of jail overcrowding, the courts have delegated this function to others (see, for example, ORS 135.235(3)(b)), under guidelines similar to those contained in the decree involved in this case.
The case at hand is unusual in the sense that the corrections officers were acting pursuant to an order of the federal judge, rather than pursuant to an order of an Oregon circuit or district judge. Even so, I view this case as the functional equivalent of one in which a local presiding judge has issued an order containing policies for release, and the person charged with making the release decisions is acting pursuant to that order.
That brings me to my concern with the majority opinion. As stated earlier, more than one inference can be drawn from the evidence in the record. Some evidence suggests intentional disregard of the federal court decree. Other evidence suggests nothing more than mere negligence on the part of the releasing officer, either in tabulating the matrix score or in determining the matrix scores of the other incarcerated persons.
I concur that this case must go back to the trial court because no immunity would exist for intentional disregard of the federal court decree. But I write separately to express my disagreement with statements made in the next to the last paragraph of the majority opinion, 311 Or at 74, that the county corrections officials would lose their immunity if they acted other than in strict accordance with the authority granted them by the court order. The majority opinion states that the defendant would lose absolute judicial immunity for any departure from the federal court order.
Judges are entitled to absolute immunity for all acts performed in a judicial capacity, even malicious or corrupt acts. Absolute judicial immunity, certainly would extend to the negligent acts of judges in either tabulating a matrix score or in determining the matrix score of other incarcerated persons.
If a judge has delegated the responsibility for tabulating the matrix score of a particular prisoner or determining the matrix score of other incarcerated persons, and if the person to whom that responsibility is delegated erroneously *78tabulates the matrix, or erroneously determines the matrix score of other incarcerated persons, that person should have the same absolute immunity as the judge would have, if he or she had made the error. The Praggastis opinion touches upon this.
“Clerks may derive an immunity from their performance of actions at the direction of the court. For this immunity to exist, the clerk must be acting at the direction of the court in carrying out an authorized judicial function. That the actions in question are ‘ministerial’ in .nature, or are performed at the direction of a statute, does not exclude the possibility of immunity. A clerk ‘may receive immunity in his own right for the performance of a discretionary act or he may be covered by the immunity afforded the judge because he is performing a ministerial function at the direction of the judge.’ Waits v. McGowan, 516 F2d 203, 206 (3d Cir 1975).” 305 Or at 428-29.
In its opinion, the Court of Appeals stated:
“Calculation of Hough’s matrix score and authorization of his release were parts of the performance of a judicial function, because only judges are authorized to make release decisions and because the employes who actually released him were acting under the authority of the federal matrix release order. Their only authority was derived from the federal court and the federal judge. In applying the matrix, they were carrying out a judicial order and were thereby performing a judicial function. If they were not carrying out a judicial function, they were not carrying out any lawful function at all in the particular circumstances. In performing a judicial function, just as in performing any function, the actor can make a mistake or can be simply, simple-mindedly or even stupidly wrong. The function is still judicial.” Fay v. City of Portland, 99 Or App 396, 399, 782 P2d 182 (1989) (footnote omitted).
I maintain that corrections officers who have been delegated to do the work that judges do — making release decisions — would be entitled to the same immunity as a *79judge, absent an intentional departure from the judge’s instruction.1
Only the question of absolute immunity is before us in this case. We do not address or decide any qualified immunity issue. The plaintiffs will have to prove all the elements of the tort alleged before they can recover.
Due to day-to-day changes in a jail population, the collective and individual dangerousness of the jail population varies from day to day. On a given day, it may be appropriate to release a prisoner with a dangerousness matrix of, say, 45. The following day, the release officer might negligently release a prisoner with a lower dangerousness matrix score of, say, 42.
Release officers and others charged with making release decisions necessarily must release persons whose freedom from confinement poses some risk of harm to the public. Normally, there is no liability if a third person is injured by a criminal defendant on bail, on parole, on probation or on recognizance. The releasor is not and should not become an insurer.
In this case we are not called upon to define the boundaries of qualified immunity, or the duty of care. The Arizona Supreme Court, in a case involving the Arizona Parole Board, adopted this rule:
“We believe that a limited immunity for members of the Board of Pardons and Paroles with liability only for the grossly negligent or reckless release of a highly dangerous prisoner strikes the proper balance between the competing interests.” Grimm v. Arizona Bd. of Pardons & Paroles, 115 Az 260, 564 P2d 1227, 1234-35 (1977).