Judge denies motion to recuse herself in sperm donor case
Status hearing scheduled for July
Posted: June 19, 2013
By Ann Marie Bush
THE CAPITAL-JOURNAL
Shawnee County District Court Judge Mary Mattivi has denied a motion to recuse herself from the trial of a Craigslist sperm donor.
On May 17, Benoit Swinnen, who represents the sperm donor, filed a motion with the court asking Mattivi to disqualify herself from the case.
In a letter dated June 12, Mattivi wrote: “The court heard arguments of counsel on June 5, 2013, and took the matter under advisement. After consideration of the motion, affidavit and arguments of counsel, the court hereby denies the motion.”
In the Craigslist case, the state 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.
The defense’s June 17 affidavit, which became public record after the judge denied the motion to recuse herself, states: “The court appears to have set a procedural context where it has turned its back on free and open discourse, due process, and judicial independence and appears to have prejudged the outcome of the matter.”
The affidavit also states, “The court appears to advocate for the state. For all purposes, the court has set on tracks a procedural train destined to wreck a fair opportunity for the respondent, the child and the intended mother to be heard.”
The child’s interests are being ignored by the court in the process, the affidavit states.
“The court should not give the appearance of bias and prejudgement, the court should not give the appearance of muzzling strong advocacy and should not seek to derail an argument before the litigant has an opportunity to present and argue his case,” the document states.
The defense believes that on account of “personal bias or prejudice” the orders and decisions of the court “that a child must have parents of different gender, or that a genetic relationship trumps all other relationships and considerations by law, respondent cannot obtain a fair and impartial trial,” the affidavit states.
Timothy Keck, designated lead co-counsel for the state, filed a response June 18, stating: “Judge Mattivi has presumably examined her conscious and determined that the allegations of bias and prejudice are false and nonexistent. There should be great deference given this determination by Judge Mattivi.”
Keck also wrote: “The judges of each division should be allowed to control their respective dockets and set a path for a case without being subjected to allegations of bias and prejudice.”