Sperm donor defense calls for judge to recuse herself

Friday's filing 'moves and prays' Mattivi will disqualify herself from case

Posted: May 20, 2013

 

By Aly Van Dyke

THE CAPITAL-JOURNAL

 

The defense attorney representing Topekan William Marotta in his child support lawsuit with the state of Kansas has asked that the district court judge assigned to the case recuse herself.

 

Topeka attorney Benoit Swinnen on Friday filed a motion with the Shawnee County District Court calling for Judge Mary E. Mattivi to disqualify herself from the case, in which Marotta donated sperm to a same-sex couple via Craigslist.

 

The “(r)espondent respectfully moves and prays that the Honorable Mary E. Mattivi removes and disqualifies herself as a judge and that another judge be assigned to hear and try all matters,” the document states.

In accordance with state statute, the filing doesn’t include a reason for the request. Swinnen declined to comment.

 

Mattivi’s office deferred to the district court administration for comment, but court administrator Cathy Leonhart wasn’t available for comment Monday.

 

The motion was filed pursuant to Kansas statute dealing with the right to a fair trial. The statute states a party can file a motion that the judge recuse himself or herself but doesn’t have to provide a reason. If the judge declines to do so, the party can file an affidavit, which would be reviewed by a chief justice or other district judge.

 

An affidavit does have to provide the reasoning for the request. Reasons for filing an affidavit include concerns that the judge is related to either party or otherwise interested in the action or has a personal bias or prejudice in the case.

 

Swinnen is representing Marotta, who answered a Craigslist advertisement in which two Topeka women were seeking a sperm donor. In the case, the state of Kansas contends Marotta is a father owing child support for a 3-year-old girl, because he and the two women, Angela Bauer and Jennifer Schreiner, didn’t follow Kansas law requiring a physician to perform the artificial insemination in order for Marotta to be considered a sperm donor.

Marotta and the female couple contest that assertion, saying he provided the sperm and simply is a sperm donor and has no financial responsibility to the child.