Suits against judges must show they lack jurisdiction; Plaintiff claims Dauber did not provide notice in funeral case

By The Madison County Record | Aug 21, 2014


For Maria Bailey of Chicago to sue St. Clair County associate judge Ellen Dauber, who canceled her mother’s funeral, she must show that Dauber lacked jurisdiction.

Judges enjoy absolute immunity from civil suits for their actions as long as they act within their jurisdiction, according to articles in legal journals and on the internet.

Dauber has invoked judicial immunity as a defense to a federal suit Bailey filed in May.

According to legal reform website, an act done in complete absence of jurisdiction cannot be a judicial act.

The website declares that, “It is no more than the act of a private citizen, pretending to have judicial power which does not exist at all.”

Judges can generally ward off civil suits by relying on Stump v. Sparkman, a decision the U.S. Supreme Court reached in 1978.

The Court immunized an Indiana judge who granted a mother’s request to sterilize her daughter without the daughter’s knowledge.

The daughter sued the judge after marrying and learning she could not bear children.

The Court’s decision to deny her a remedy stirred a persisting protest.

A dire review by Robert Waters in the journal of the Cato Institute in 1987 states in part:

“In no other area of American life are public officials granted such license to engage in abuse of power and intentional disregard of the Constitution and laws they are sworn to defend,” Waters wrote.

“With power to abridge liberty and seize property, state court judges are the masters of everyday life in America.

“By resort to the current immunity doctrine, an unscrupulous judge could escape liability even for acts of revenge, gross favoritism, improper seizure of property, unjust incarceration, or serious injuries inflicted in a judicial capacity.”

He wrote that if a court is to enjoy immunity, it must afford notice, a chance to be heard, and a method of appeal.

Bailey claims Dauber provided neither notice nor a chance to be heard last year, before ruling that the children of Queen Esther Tyus-Edwards could not arrange her funeral.

Bailey preserved and exercised a right to appeal, but an appeal won't allow the funeral that Bailey claims her mother wanted.

Acting without a lawyer, Bailey sued Dauber and circuit clerk Kahalah Dixon in May at U.S. district court in Chicago.

On motions from Dauber and Dixon, District Judge George Kocoras transferred the case to the Southern District in July.

Bailey claims she sought an order against her mother’s husband, former St. Clair County deputy sheriff Thomas Edwards, after he blocked Queen’s burial at Jefferson Barracks national cemetery.

She claims Dixon’s employees turned her away at the courthouse at 3:15 p.m. on May 31, 2013, saying no judge was available.

Bailey further claims Dauber signed an order for Edwards at 5:24 p.m. that same day, directing King Funeral Home in Belleville to surrender Queen’s body and cancel services.

Funeral home director Levi King, in an interview on Aug. 12, said Queen was his godmother.

“I have known Maria Bailey since she was born,” he said.

He said that after he laid Queen out and dressed her, a man came to pick up her remains.

He said he denied the request because the man had no signed authorization.

He said he returned to his funeral home on a Saturday night after setting Queen up for Sunday service.

“I was preparing to leave when the sheriff’s department pulled into the parking lot,” King said.

“I was not to go forward with any service.”

Dauber held a hearing the next Monday, with all parties present.

King said, “It was amazing. Every decision of the judge was slanted toward the plaintiff.”

He said Dauber told Queen’s daughters to be quiet.

He said that when they told Dauber they possessed a valid power of attorney and Edwards did not, Dauber said, “We are not here to discuss that.”

“She made Maria’s husband sit on the back wall," King said. "She threatened to make him turn his face to the wall. She was funny at times.”

“It was very explicitly slanted towards the other family that she knew. I thought the judge would recuse herself because of her knowledge.”

Jefferson Barracks cemetery director Jeff Barnes remembers the dispute too.

He said he canceled the burial at the husband’s request. He said he could not say more due to a privacy policy.

When asked in general whether the case was unique in stopping a burial so far along in planning, Barnes said, “Yes, it is unique.”

U.S. District Judge Nancy Rosenstengel presides over the case.

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