|Pop artist Peter Max poses in his New York studio on June 18, 2012 with seven portraits he created of Sir Paul McCartney to commemorate McCartney's 70th birthday.|
TIMOTHY A. CLARY/AFP via Getty Images
by Holly Barker
Artist Peter Max’s daughter, Libra Max, has filed a lawsuit against Deborah Kaplan, Deputy Chief Administrative Judge for the New York City Courts, alleging systemic due process violations in the city’s guardianship courts.
The complaint, filed in the U.S. District Court for the Southern District of New York on Wednesday, claims state court judges routinely meet ex parte, or privately, with court-appointed guardians to discuss matters before them—even where the disputes concern adversarial petitions to remove the guardian.
Kaplan is named as a defendant in her official capacity.
The German-born Max, now 84 and suffering from dementia, has been in a guardianship since 2015. His bright, often psychedelic art, made him a 1960s pop culture icon.
Libra Max says that all of the judges presiding over her father’s guardianship have defended ex parte meetings with guardians as permissible, with one judge allegedly referring to ex parte meetings as a “right of the guardianship judge.”
The lawsuit acknowledges that ex parte communications are sometimes allowed, where, for example, the communications are made for scheduling or administrative purposes, but argues that the ex parte communications in Peter Max’s case have been substantive and prejudicial.
Consequently, his daughter claims, she has been deprived of “her ability to fairly advocate for her father’s freedom.”
Libra Max has been trying since 2019 to have her father’s personal needs guardian removed. After Max spoke publicly with media outlets about alleged abuse of her father, the guardian sued her for defamation.
‘Hotly Contested Matters’
Max says she is aware of at least four separate incidents where one of her father’s court-appointed guardians, either directly or through counsel, had ex parte communications on “hotly contested matters.”
One of the alleged ex parte meetings with the guardian occurred immediately prior to a hearing that would address Libra Max’s petition to remove the guardian.
According to Max, the guardian’s has a corresponding three-hour billing entry that referencing the conference with the judge, which states “Court will issue an Order to support Guardian.”
And the court did “support the guardian” in the matter, Max claims, by issuing an order declaring Libra Max’s petition to remove the guardian as moot, based on her father’s court-appointed counsel’s representation that he wasn’t seeking to terminate the guardianship.
Causes of Action: 18 USC §1983, alleging violations of the due process under the The Fourteenth Amendment
Relief: Injunctive relief requiring Kaplan, in her official capacity, to “take such steps to ensure that litigants and judges in the guardianship part in Supreme Court, New York County do not engage in a pattern or practice of unconstitutional ex parte communications;" attorneys’ fees.
Response: Judge Kaplan’s office did not immediately respond to Bloomberg Law’s request for comment.
Attorneys: Emery Celli Brinckerhoff Abady Ward & Maazel LLP and Jonathan Gerald Martinis LLC.
The case is Max v. Kaplan, S.D.N.Y., No 1:22-cv-06156, complaint 7/21/22.