Judge in sperm donor case takes time to consider recusal
Decision may not happen for two weeks
Posted: June 5, 2013
By Steve Fry
THE CAPITAL-JOURNAL
After a hearing lasting about 25 minutes, Shawnee County District Court Judge Mary Mattivi took a motion to recuse herself from the trial of a Craigslist sperm donor under advisement on Wednesday.
Mattivi said she needed time to read the lengthy affidavit given to her by Benoit Swinnen, who represents the sperm donor. Mattivi also said she needed to do some research before she issues a written decision. She received the affidavit on Wednesday.
“I’ll rule as soon as I can,” Mattivi said following the closed hearing.
A decision on whether the judge will recuse herself isn’t expected for at least two weeks. Until the recusal decision is made, the rest of the case is on hold, Mattivi said.
After the hearing ended, attorneys declined to talk about what occurred.
The judge said she conducted the hearing in the courtroom rather than her office as stated in the statute because there were too many participants to fit into her office. Besides the judge, six attorneys, a court reporter and a bailiff attended.
Two news reporters were instructed to leave the courtroom before the hearing began.
On May 17, Swinnen filed a motion with the district court calling for Mattivi to disqualify herself from the case.
The Kansas statute specifically states the grounds for the recusal aren't to be stated in the motion. Instead, the judge is to "promptly hear the motion informally" and if she steps down, the chief judge would appoint another judge to hear the case.
If the judge doesn't step down during the hearing, the party seeking recusal can file an affidavit alleging the ground for recusal.
If the judge steps down, the affidavit remains a closed document, Mattivi said, but if she declines to withdraw from the case, the affidavit is open to the public.
In the Craigslist case, the state of Kansas contends William 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 the care of a 3-year-old girl born to one of the women.
Marotta and the same-sex female couple he provided the sperm to say he simply is a sperm donor and has no financial responsibility for the child's care.
Grounds to seek recusal of a judge are:
■ The judge was a lawyer in the case before being appointed as judge.
■ The judge is "otherwise interested" in the action.
■ The judge is related to one of the people involved in the case.
■ The judge is a material witness in the action.
■ 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.