by Holly Barker
Artist Peter Max’s daughter lost an appeal to revive her lawsuit against a top New York City judicial official over allegedly routine and one-sided private talks between judges and guardians in adversarial proceedings like those involving her father.
Libra Max lacks standing because her alleged injury isn’t fairly traceable to Deputy Chief Administrative Judge Deborah Kaplan’s alleged oversight failures, the US Court of Appeals for the Second Circuit said in a summary order Thursday.
Max has been fighting to remove her father’s court-appointed guardian for several years, alleging the guardian has been abusive and neglectful.
Disputes over Peter Max’s care and the family business revolving around his art have drained much of the artist’s money, as detailed in a Bloomberg Law series on the guardianship system in March 2023. That coverage prompted the guardianship court to impose a gag order barring the parties from discussing the case with the media.
Max sued Kaplan claiming the judge violated her Fourteenth Amendment due process rights by failing to prevent New York guardianship judges from engaging in ex parte communications with court-appointed guardians in contested proceedings.
But even assuming that those kinds of communications amount to an injury in fact, the injury can’t be traced to any act or omission by Kaplan, the court said.
To establish traceability, a plaintiff must show a causal connection between the alleged injury and the conduct complained of, the court said. The injury can’t be the result of independent action by a third party not before the court.
Max alleged that four different judges who have presided over her father’s highly contentious guardianship have engaged with one-sided conversations with his court-appointed representatives “pursuant to established court practice” and “consistent with guidance and instructions,” and that Kaplan has authority over those practices.
But her complaint alleged no facts showing that Kaplan “affirmatively established a court practice, policy, or custom, or promulgated any guidance, instruction or advice, permitting guardianship judges to engage in ex parte communications in adversarial proceedings,” the court said.
Without such allegations, “the complaint utterly fails to provide any basis for concluding that the state guardianship judges’ alleged practices are fairly traceable to anything Kaplan has actually done,” the court said.
Because Max claims that guardianship judges are disobeying constitutional and judicial rules barring ex parte communications, “we can only concluded that Max’s alleged injury is the result of each guardianship judge’s ‘independent action,’” the court said.
Judges Amalya L. Kearse, Gerard E. Lynch, and William J. Nardini decided the case.
Max is represented by Emery Celli Brinckerhoff & Abady LLP. Kaplan is represented by the New York State Office of the Attorney General.
The case is Max v. Kaplan, 2d Cir., No. 23-00201, summary order 1/25/24.
Full Article & Source:
Peter Max’s Daughter Can’t Revive Guardianship Talks Lawsuit (1)
See Also:
Federal Judge Dismisses Libra Max’s Latest Lawsuit To End Guardianship of Her Father, Pop Artist Peter Max
Free Peter Max: a daughter’s fight to remove her dad from the clutches of ‘predatory’ guardianship
Peter Max’s daughter is leading smear campaign against guardian, lawsuit claims
‘Kafka would blush’: artist Peter Max caught in legal guardianship lawsuit
Pop artist Peter Max’s court battles are a clash between children of Holocaust survivors
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