DANIELLE MCDEVITT NO. 22-C-534 VERSUS FIFTH CIRCUIT MICHAEL SALISBURY COURT OF APPEAL STATE OF LOUISIANA

January 10, 2023 Linda Wiseman First Deputy Clerk

IN RE DANIELLE MCDEVITT APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE NANCY A. MILLER, DIVISION "I", NUMBER 776-634

Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg

PER CURIAM WRIT GRANTED; JUDGMENT ON MOTION TO RECUSE REVERSED; REMANDED WITH INSTRUCTIONS Plaintiff/relator, Danielle McDevitt, seeks this court’s supervisory review of the trial court’s September 21, 2022 judgment which denied her Motion to Recuse the trial judge filed on September 19, 2022. The basis of the trial court’s denial under La. C.C.P. art. 154 C was that “the Motion to Recuse provides no objective facts demonstrating bias against the plaintiff or her attorney,” i.e., that the Motion to Recuse fails to sets forth a ground for recusal under La. C.C.P. art. 151.

After a thorough review of the Motion to Recuse, the trial court’s Judgment and Reasons signed on September 21, 2022, and the writ application, we find that the Motion to Recuse states allegations under La. C.C.P. art. 151 A(4) (alleging instances of bias or prejudice), and under La. C.C.P. art. 151 B (alleging instances showing existence of a substantial and objective basis that would reasonably be expected to prevent the judge from being fair and impartial). These allegations, if proven and sufficient to show that the judge is not fair and impartial, could rebut the presumption of impartiality and result in a recusal. Accordingly, we conclude that the trial court erred in denying the Motion to Recuse, rather than making a written request to the Supreme Court for the appointment of an ad hoc judge as provided in La. C.C.P art. 155, as per La. C.C.P. art. 154 B.

For these reasons, we grant this writ application, reverse the trial court’s judgment denying the Motion to Recuse, and remand this matter and order the trial court to make a written request to the Supreme Court for the appointment of an ad hoc judge as provided in La. C.C.P. art. 155, to hear the Motion to Recuse.

We express no opinion as to the merits of the Motion to Recuse.

Gretna, Louisiana, this 10th day of January, 2023.

SJW JGG HJL SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER INTERIM CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 01/10/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-C-534 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Nancy A. Miller (DISTRICT JUDGE) Shaye R. Lirette (Relator) MAILED Michael Salisbury (Respondent) In Proper Person Emma Street Binghamton, NY 13905 SENDER: COMPLETE THIS SECTION • Complete Items 1, 2, and 3. • Print your name and address on the reverse so that we can nrtum the card to you. • Attach this card to the back of the mallplece, C. Date of Delivery or on the front if space pennits. ,_ t.\--"L) 1. Article A.ddl9ssed to: OYes ONo Michael Salisbury , In Proper Person Emma Street SECLJR!T' Binghamton, NY 13905 22-C-534 01-10-23

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