State of Louisiana Versus Armande Tart

STATE OF LOUISIANA NO. 22-K-439

VERSUS FIFTH CIRCUIT

ARMANDE TART COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 17-01736, DIVISION "E"
HONORABLE FRANZ L. ZIBILICH, JUDGE PRESIDING

September 29, 2022

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Jude G. Gravois,
Robert A. Chaisson, and Hans J. Liljeberg

WRIT GRANTED; RULINGS VACATED; MATTER REMANDED WITH
INSTRUCTIONS
JGG
RAC
HJL

COUNSEL FOR DEFENDANT/RELATOR,
ARMANDE TART
Zachary Orjuela

COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA
Thomas J. Butler

GRAVOIS, J.

Relator, Armande Tart, seeks this Court’s supervisory review of the ad hoc

judge’s September 8, 2022 oral ruling which denied relator’s motion to recuse the

entire bench of the 24th Judicial District Court from presiding over his criminal

prosecution for four counts of first degree murder, attempted first degree murder,

and obstruction of justice. For the following reasons, we grant the writ application,

vacate the ad hoc judge’s September 8, 2022 oral rulings, and remand the matter

with instructions.

FACTS AND PROCEDURAL BACKGROUND

Relator moved to recuse the entire bench of the 24th JDC under La. C.Cr.P.

art. 674, because one of the victims involved in this case was a first cousin to

Judge Donald A. Rowan, Jr., one of the sitting judges. Judge Frank Brindisi self-

recused. An ad hoc judge, retired judge Franz Zibilich, was appointed to hear the

motion, as per La. C.Cr.P. arts. 674 and 675.

At the beginning of the hearing on the motion to recuse on September 8,

2022, Judge Zibilich disclosed that he has a dating relationship with the First

Assistant District Attorney of the 24th JDC. Defense counsel thereupon made an

oral motion to recuse Judge Zibilich on the grounds found in La. C.Cr.P. art. 671.

Judge Zibilich orally denied the motion as premature, finding no merit to it as he

was only appointed to preside over the recusal motion and not the case itself in the

event the entire bench of the 24th JDC was recused.1 Judge Zibilich also stated that

the two of them do not discuss cases. Defense counsel objected for the record,

which was duly noted. Following the hearing, Judge Zibilich orally ordered that

1
Following the ruling on the motion to recuse but prior to filing the writ application in
this Court, relator filed a written motion to recuse the ad hoc judge (“Nunc Pro Tunc Motion To
Recuse Ad Hoc Judge Zibilich On Grounds Disclosed During The Recusal Hearing On
September 8, 2022”) to make the record complete.

22-K-439 1

Judge Rowan be recused from this case, but denied the motion to recuse the

remaining judges of the 24th JDC.2

In his writ application, relator first argues that the ad hoc judge erred in

summarily denying the oral motion to recuse him from presiding over the hearing,

because he should have referred the motion to another judge or to an ad hoc judge

for hearing, as required by La. C.Cr.P. art. 674. Second, relator argues that the ad

hoc judge erred in granting the motion to recuse only as to Judge Rowan and not as

to the entire bench.

After review of the writ application and the applicable law, for the following

reasons, we find merit to relator’s first assigned error.

ANALYSIS

Louisiana Code of Criminal Procedure article 674 provides:

A. A party desiring to recuse a trial judge shall file a written motion
therefor assigning the ground for recusal under Article 671. The
motion shall be filed not later than thirty days after discovery of
the facts constituting the ground upon which the motion is based,
but in all cases at least thirty days prior to commencement of the
trial. In the event that the facts constituting the ground for recusal
occur thereafter or the party moving for recusal could not, in the
exercise of due diligence, have discovered such facts, the motion to
recuse shall be filed immediately after the facts occur or are
discovered, but prior to verdict or judgment.

B. If the motion to recuse sets forth facts constituting a ground for
recusal under Article 671, not later than seven days after the
judge’s receipt of the motion from the clerk of court, the judge
shall either recuse himself or refer the motion for hearing to
another judge or to an ad hoc judge as provided in Article 675.
C. If the motion to recuse is not timely filed in accordance with
Paragraph A of this Article or fails to set forth facts constituting a
ground for recusal under Article 671, the judge may deny the
motion without referring the motion to another judge or to an ad

2
This ruling is evidenced by a minute entry dated September 8, 2022. The entry states
that the Court ordered Judge Rowan to be recused from this case. The minute entry further
stated that the Defense’s motion to recuse the judges of the 24th JDC was “DENIED.” It appears
that the ruling was actually a grant in part (to recuse Judge Rowen) and a deny in part (to recuse
the entire 24th JDC bench). Further, the minute entry does not mention the oral motion made
during the hearing by defendant’s counsel to recuse Judge Zibilich.

22-K-439 2

hoc judge for hearing but shall provide written reasons for the
denial.3

Louisiana Code of Criminal Procedure article 678 provides that “An ad hoc

judge appointed to try a motion to recuse a judge, or appointed to try the cause,

may be recused on the grounds and in the manner provided in this Chapter for the

recusal of judges.”

“[I]n the manner provided in this Chapter for the recusal of judges” required

by Article 678 refers to the manner required to recuse regularly assigned judges set

forth in Article 674. Article 674 requires first a determination that the motion to

recuse sets forth “facts constituting a ground for recusal under Article 671.” See

Victor v. State, 22-171 (La. App. 5 Cir. 7/7/22), 2022 WL 2526906. The written

motion, which memorialized the grounds raised orally at the motion to recuse

hearing, cited Judge Zibilich’s disclosed relationship with the First Assistant

District Attorney of the 24th JDC as grounds for his recusal, citing La. C.Cr.P. art.

671(A)(l) (when the judge “is biased, prejudiced, or personally interested in the

cause to such an extent that the judge would be unable to conduct a fair and

impartial trial”) and (6) (when the judge “would be unable, for any other reason, to

conduct a fair and impartial trial”), and Article 671(B) (when there exists “a

substantial and objective basis that would reasonably be expected to prevent the

judge from conducting any aspect of the cause in a fair and impartial manner”).

Upon review, considering the facts disclosed by Judge Zibilich, we find that the

motion to recuse sets forth “facts constituting a ground for recusal under Article

671.”

Because the motion to recuse sets forth facts constituting a ground for

recusal of Judge Zibilich under Article 671, Judge Zibilich was required under

3
The writ application does not reflect that Judge Zibilich provided written reasons for
denying the motion to recuse him without referring the motion to another judge or to an ad hoc
judge for hearing.

22-K-439 3

Articles 674 and 678 to either recuse himself or refer the motion for hearing to

another judge or to an ad hoc judge as provided in Article 675. Judge Zibilich

therefore erred by simply orally denying the motion to recuse himself and

proceeding with the hearing. Any action taken by Judge Zibilich once the motion

to recuse him was made was done in error and must accordingly be vacated.

DECREE

For the foregoing reasons, this writ application is granted. The September 8,

2022 oral rulings which denied relator’s motion to recuse ad hoc Judge Franz

Zibilich and which granted the recusal of Judge Rowan, but denied the recusal of

the entire 24th JDC bench, are vacated. The matter is remanded for Judge Zibilich

to either recuse himself or to refer the motion to recuse him to another judge or to

an ad hoc judge for hearing, as per La. C.Cr.P. arts. 674 and 675.4

WRIT GRANTED; RULINGS VACATED;
MATTER REMANDED WITH INSTRUCTIONS

4
In light of our ruling herein, discussion of relator’s second assignment of error is
pretermitted.

22-K-439 4

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 JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
SEPTEMBER 29, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-K-439
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANZ L. ZIBILICH (DISTRICT JUDGE)
HONORABLE DONALD L. FORET (DISTRICT JUDGE)
ZACHARY ORJUELA (RELATOR) THOMAS J. BUTLER (RESPONDENT)

MAILED
NO ATTORNEYS WERE MAILED