Attorney will pursue recusal in sperm donor case if judge doesn't step down
Hearing on recusal motion set for Wednesday
Posted: June 2, 2013
By Steve Fry
THE CAPITAL-JOURNAL
If the judge hearing the Craigslist case doesn't choose to step down from hearing the case, the attorney representing plaintiff William Marotta will trigger the next step in hopes the judge will be ordered off the case, the attorney said late this past week.
On May 17, Topeka attorney Benoit Swinnen filed a motion with the Shawnee County District Court calling for District Judge Mary E. Mattivi to disqualify herself from the case.
In the Craigslist case, the state of Kansas contends Marotta, a Topeka man who answered a Craigslist ad in which two Topeka women were seeking a sperm donor, is a father owing child support for support of a 3-year-old girl.
Marotta and the same-sex female couple he provided the sperm to say he simply is a sperm donor and has no financial responsibility to the child.
The hearing on that recusal motion will be on Wednesday before Mattivi and is expected to be behind closed doors.
Late Thursday, Swinnen and Timothy Keck, co-lead counsel for the Kansas Department of Children and Families, declined to elaborate on the basis for Swinnen's recusal request.
According to the Kansas statute dealing with a judge recusing from a case, an attorney who believes his or her client can't get a fair trial from a judge in a legal action can file a motion asking for a change of judge.
The statute specifically states the grounds for the recusal aren't to be stated in the motion. The judge is to "promptly hear the motion informally" and if she disqualifies herself, the chief judge would appoint another judge to hear the case.
If the judge doesn't step down during the hearing, the party seeking the recusal can file an affidavit alleging the grounds for the recusal, Kansas law says.
If the affidavit is "legally sufficient," the case will be assigned to another judge, the statute says.
The grounds to seek recusal of a judge are:
â– The judge was a lawyer in the case before being appointed as judge.
â– The judge is "otherwise interested" in the action.
â– The judge is related to one of the people involved in the case.
â– The judge is a material witness in the action.
â– The party filing the affidavit believes that due to "personal bias, prejudice or interest" by the judge, the party can't get a fair and impartial trial or enforcement of post-judgment remedies.
Swinnen said Thursday that if Mattivi didn't recuse herself during the hearing, he would file the affidavit at the end of the hearing. The affidavit then would be a public document.