Danielle McDevitt Versus Michael Salisbury

DANIELLE MCDEVITT NO. 22-C-534

VERSUS FIFTH CIRCUIT

MICHAEL SALISBURY COURT OF APPEAL

STATE OF LOUISIANA

February 28, 2023

Linda Wiseman
First Deputy Clerk

ON APPLICATION FOR REHEARING

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

REHEARING GRANTED; RELIEF DENIED WITH REASONS

SJW
JGG
HJL

WINDHORST, J.

Relator, Danielle McDevitt, seeks a partial/limited reconsideration relative to

this Court’s granting of her writ application number 22-C-534.

Relator challenges the trial court’s ruling on a motion for contempt and a

motion for new trial during the pendency of her writ application number 22-C-442

regarding the trial court’s denial of her motion to recuse Judge Nancy Miller because

this court ultimately granted her writ application. Specifically, on September 20,

2022, this court granted relator’s application for a supervisory writ in number 22-C-

442, and instructed the judge to “either consider the merits of the relator’s motion to

recuse and render a judgment in compliance with La. C.C.P. art. 154 or to make a

written request to the supreme court for the appointment of an ad hoc judge as

provided in La. C.C.P. arts. 154 and 155.” Relator questions the trial court’s

authority to rule on the motion for contempt and the motion for new trial while the

motion to recuse is pending.1

La. C.C.P. art. 155 provides:
Once a motion that sets forth a ground for recusal under Article
151 is referred for hearing, the supreme court shall appoint an ad
hoc judge to hear the motion to recuse, and only the ad hoc judge
to whom the motion is assigned shall have the power and
authority to act in the cause pending disposition of the motion.

The language of this article indicates that, once a motion to recuse has been filed,

the trial judge, who is the subject of the motion to recuse, maintains the authority to

act in the case until the supreme court has appointed a judge ad hoc to hear the

motion to recuse.

This matter was “referred for hearing” on January 10, 2023, and on January

19, 2023, the Supreme Court appointed a judge ad hoc for the purpose of hearing

1 Although relator refers to other actions of the trial judge since the motion to recuse was filed, the notice
of intent to file supervisory writs in this writ application only references the trial court’s September 21, 2022
ruling on the motion to recuse and September 23, 2022 rulings on the motion for contempt and motion for
new trial.

22-C-534 1

and disposing of the motion to recuse Judge Nancy Miller.2 Thus, on September 23,

2022, when the trial judge ruled on the motion for contempt and the motion for new

trial, the trial judge whose recusal is sought had the authority to act in this matter.

We therefore deny relator the relief requested in this application for rehearing.

2 A hearing on the motion to recuse was held before the judge ad hoc on February 16, 2023. The matter
was taken under advisement, and no ruling has been rendered.

22-C-534 2

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
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 02/28/2023 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
39 Emma Street
Binghamton, NY 13905