When custody, divorce and child support cases bogged down the courts in Livingston, St. Helena and Tangipahoa parishes, a legislator for the area, state Rep. Sherman Mack, came through with a fix.
He sponsored a bill in 2013 to create a family court for the 21st Judicial District, a move applauded as long overdue by judges, lawyers and others looking for a streamlined system. The passage of the bill was a win for Mack’s district, but it was also a personal win for Mack, whose law firm often juggles dozens of family law cases at a time.
Soon after the bill became law, attorney Jeff Oglesbee announced he would run for the new judgeship. Oglesbee had spent 10 years working for Mack’s small, Albany-based law firm, and Mack supported Oglesbee’s campaign — with his endorsement, his money — even food he donated for fundraisers. And once Oglesbee won the new family court seat, Mack practiced in front of him.
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But as he tries to secure the leadership post, questions around his law practice and his influence over the 21st Judicial District Court continue to surface. Over the past several years, defendants in four separate cases have accused Oglesbee of being in the tank for Mack.
Oglesbee has yet to be booted off any of those cases, but two recusal motions in the past five months indicate that litigants headed to family court — and their attorneys — fear they cannot receive a fair trial when Mack represents the other side in Oglesbee’s courtroom. Neither Mack nor Oglesbee returned messages for this story.
One of the most recent recusal motions filed against Oglesbee did not reach a hearing on the merits — but it may have lit a fire to resolve a custody case that had dragged on for three years. A mother fighting for custody of her children filed a recusal motion in September that cited Oglesbee’s relationship with Mack, who represented the father in the case. Two months later, the parties reached a custody agreement that largely favored the mother. Oglesbee signed off, making the previously requested recusal moot.
The motion to recuse Oglesbee described “a well-established phenomenon in the 21st judicial district court” — that the judge was inclined to rule in favor of anyone Mack represented.
“This phenomenon is apparently rooted in the fact that Judge Oglesbee and Mr. Mack were law partners prior to Judge Oglesbee’s election, and that Mr. Mack was very active in Judge Oglesbee’s campaign, and that Mr. Mack and his relatives heavily and disproportionately contributed money to Judge Oglesbee’s political campaign,” reads the motion from Covington-based attorney Richard Ducote. Ducote, who recently ran unsuccessfully for a seat on the state Supreme Court, has been outspoken about allegations of judicial misconduct and has filed multiple lawsuits to declare secrecy rules that govern judicial misconduct investigations unconstitutional.
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Campaign finance records show that Mack, his family members and his law partners have accounted for 19% of the judge’s political contributions.
It’s perfectly legal in Louisiana, and in fact, common, for lawyers to donate money to judicial campaigns and for state legislators to endorse judicial candidates. The state’s Code of Civil Procedure also does not prohibit a lawyer from practicing law in front of a judge who used to be a partner of his — or vice versa. Such appearances aren’t unusual.
But experts say the combination of Mack’s role sponsoring the bill to create the family court, the 10 years he spent building a law firm with Oglesbee, and his extensive financial support of Oglesbee — without either of them disclosing that history to litigants — makes their situation unusual. The potential for bias on Oglesbee’s part may be too strong, they said
Louisiana’s Code of Judicial Conduct states that judges should recuse themselves from cases when their “impartiality might reasonably be questioned.” The code also instructs judges to avoid an “appearance of impropriety” at all times.
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Nathan Songy, who spent three and a half years battling a custody lawsuit in Oglesbee’s Livingston courtroom while Mack represented his ex-wife, said the judge did not live up to those canons in his case. Songy believes the deck was stacked against him once his ex-wife hired Mack to represent her and his case was allotted to Oglesbee. Songy and his ex-wife have joint custody of their children, and Oglesbee awarded him visitation every other weekend — one less weekend per month than he had hoped for.
“The judge wasn’t controlling the case,” Songy said. “Sherman Mack was controlling the courtroom and the case.”
Deborah Rhode, the director of the Center on the Legal Profession at Stanford Law School, said judicial ethics codes across the nation are clear that judges should avoid an appearance of conflict. The relationship between Mack and Oglesbee is problematic in that regard, she said.
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“Boy, does this create an appearance,” she said. “You’re not going to be able to be dispassionate and disinterested when it’s your former partner.”
Years of recusal motions
When Oglesbee was sworn in as a judge in late 2013, Mack told the crowd in attendance how much he would miss him.
“Ten years ago, we started the biggest small-town practice in the district,” Mack said at the time, according to the Livingston Parish News.
The two men continued to see a lot of one another, with Mack representing families in the throes of divorce and custody fights, and Oglesbee settling their disputes. In his first year on the bench, Mack had 62 court appearances scheduled in Oglesbee’s Tangipahoa division alone, some of them repeat appearances for the same cases. Last year, Mack had 103 court events scheduled before Oglesbee in Tangipahoa, according to the judge’s court calendars. Livingston Parish’s online court system does not make judges’ calendars readily accessible to the public.
Questions about fairness were raised almost immediately. A year after Oglesbee transitioned from lawyer to judge, an attorney filed a motion to recuse Oglesbee from a divorce case in which Mack was the opposing counsel.
The attorney, Mary Heck Barrios, was a potential witness in a malpractice lawsuit filed against Oglesbee, stemming from a separate case in which Oglesbee and Barrios had sparred.
Barrios argued in court filings that Oglesbee was biased against her because of her potential to testify against him in the other lawsuit. An amended recusal motion also pointed out how financial contributions from the Mack Law Firm had helped propel Oglesbee to the judgeship.
But District Judge Elizabeth Wolfe — whose own misconduct in a malicious prosecution lawsuit led to a confidential $100,000 settlement paid by taxpayers in 2016 — denied the recusal motion. A three-judge panel on Louisiana’s 1st Circuit Court of Appeals upheld Wolfe’s ruling in a 2-1 decision, saying it was speculative to assume Barrios would be called to testify against Oglesbee. The dissenting judge said Barrios presented “sufficient evidence of a conflict to reasonably call into question the impartiality of the court.”
Barrios would try again a few years later, on behalf of a woman whom she represented in a Tangipahoa custody case. The woman asked in 2014 to be named the domiciliary parent for her children and for her ex-husband to be held in contempt of court after he failed to attend court-ordered counseling and displayed “temper issues” toward their children. But Oglesbee ruled that the children should split time between their parents’ homes, with neither parent domiciliary, and he denied a request to hold the ex-husband in contempt despite his failure to attend counseling.
When her ex-husband requested to reduce child support payments in 2017 as one of their children became of age, the woman filed a motion to recuse Oglesbee from the long-running case.
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The recusal motion pointed out the ties between Mack and Oglesbee and noted that even after Oglesbee took the bench, “the likeness and image of Judge Oglesbee continued to be openly used by the Mack Law Firm in media and marketing, implying the continued association of the judge with that law firm.” Barrios included photos of Mack’s website that showed Mack and Oglesbee posing alongside three other attorneys.
After a hearing, District Judge Brenda Bedsole Ricks denied the recusal motion, but did not explain her reasoning for doing so. Barrios did not return messages for this story.
One lawyer who practices family law in Livingston and Tangipahoa told The Advocate that he cautions potential clients from the outset that they face an uphill battle if they’re up against Mack in Oglesbee’s courtroom. But he was too fearful of retaliation by Oglesbee to question his impartiality publicly.
It’s a conversation that Songy said he had repeatedly as he looked for attorneys for his custody case.
The U.S. Department of Justice is not in the habit of sticking its nose in backroads Louisiana custody battles.
“I went to five different attorneys in the Livingston/Hammond area,” Songy said. “And not one of them would take the case because of what was going on with Sherman Mack and Jeff Oglesbee.”
‘Nobody told me’
But while Songy said he was warned early on about Mack and Oglesbee’s former partnership, others have been caught by surprise. Among them: Scott Bernard, who has been in a custody dispute since 2016 with his 10-year-old son’s maternal grandmother, who is represented by Mack.
Bernard did not discover until his case was well underway that there were ties between Mack and Oglesbee.
“Judge Oglesbee didn’t tell me, Sherman Mack didn’t tell me, my attorney didn’t tell me, nobody told me,” Bernard said.
At minimum, judges should disclose to litigants when their former law partners appear before them, according to John Strait, a Seattle University School of Law professor who served on the committee that issues ethics advisory opinions for judges in Washington state.
Disciplining Louisiana judges is a lot like “Fight Club.” The first rule: You don’t talk about it.
“The judge has an affirmative obligation to inform the litigants,” Strait said.
Bernard dug into Mack and Oglesbee’s history after the judge awarded sole custody of his son to the boy’s maternal grandmother. He said he asked his attorney, Dede Ferrara, to file a motion to recuse Oglesbee. Bernard later wrote in court documents that Ferrara warned him against it, saying that “others have tried and paid the consequence.” Ferrara did not return messages for this story.
Frustrated with Ferrara’s reluctance to challenge Oglesbee, Bernard looked for another lawyer. He said he called Norma Beedle, who runs the Fighting for Fathers Rights law firm. She asked him who the judge and opposing counsel were, Bernard said. And then Bernard said her message to him was direct: You cannot win.
“I cannot confirm that conversation happened,” Beedle said, when reached for this story.
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Bernard’s case is complicated: He was unable to care for his son while serving a federal prison sentence for bank fraud several years ago. His ex-wife, meanwhile, has a documented history of drug addiction that included overdosing while their son was in their home.
With both parents sidelined, Bernard’s son was often in the care of his maternal grandmother. By the time Bernard left prison and set to turning around his life, Bernard’s son had grown accustomed to that arrangement.
Bernard, however, repeatedly argued to the courts that he deserved a second chance. He pointed to his history of making child support payments, his steady work as a contractor, his spiritual calling as a minister and his effort to build a stable home life with a new wife.
Still, Oglesbee in 2017 granted the grandmother sole custody of the boy, which came as a devastating blow to Bernard. He appealed.
“If my case would’ve been in Baton Rouge or anywhere other than Livingston Parish, I would’ve had custody of my son years ago,” Bernard said.
The 1st Circuit Court of Appeal sought to find a middle ground. A three-judge panel ruled last year that Bernard should not lose all custody rights, especially in light of the strides he has made. But the court also recognized that the boy was thriving in his grandmother’s care.
The 1st Circuit determined that joint custody, with the grandmother as the domiciliary custodian, was in the boy’s best interest. The ruling asked Oglesbee to set a visitation schedule.
Oglesbee signed a judgment in August that gave Bernard visitation three weekends a month. Bernard feels he’s still getting shafted.
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“It’s like I lost three years with my son when I went to prison, but I recovered from that mistake and now I’m fighting and fighting, and I’m spending thousands of dollars to see him for six days a month and it kills me,” Bernard said. “If I would’ve known about Sherman Mack before I filed for custody I would’ve hired him myself. If I’d have hired Sherman Mack, you know as well as I do I would have my son and full custody now.”
After Oglesbee set the visitation schedule, Bernard — now representing himself — sought to recuse the judge from his case. A recusal motion he filed in October references the “well-established anomaly” in the 21st Judicial District Court in which Oglesbee is “presumptively prejudiced and predisposed” to rule in favor of Mack and leans on a recent 3rd Circuit Court of Appeals decision about judicial bias.
In that 2019 case, the appeals court ruled that the threshold for a judge’s recusal should be that there is a risk or probability of bias, not proof of actual bias.
The court noted how difficult recusal motions can be for all parties involved — the attorney filing and fearing retaliation; the judge recusing himself and admitting an inability to be impartial; and potentially a judicial colleague ruling against a fellow judge.
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“It is difficult, to say the least, and most lawyers simply will not try if the burden of proof is set so high, often at the expense of their clients,” the decision reads.
Attorneys for the grandmother fought back against Bernard’s recusal motion, with court filings that described it as “limited to speculation and hearsay.” The filings also said Mack and Oglesbee were never “law partners” — rather, that Oglesbee was an employee of Mack’s law firm, without an ownership interest.
Ad hoc Judge William Burris dismissed the motion to recuse in late November, ruling that it was filed too late, given that a judgment in the custody case had already been rendered.
Louisiana’s own Code of Judicial Conduct is partially to blame for concerns about when judges should recuse themselves, said Stephen Gillers, a New York University law professor who specializes in legal and judicial ethics.
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He noted that most states have extensive guidance within their own codes on when judges should recuse themselves from cases, often including American Bar Association examples. Louisiana’s code, on the other hand, contains a single sentence.
“A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned and shall disqualify himself or herself in a proceeding in which disqualification is required by law or applicable Supreme Court rule,” the code says.
For Gillers, the question of whether Oglesbee should bow out of cases handled by Mack would depend upon the depth of their friendship, which he said would be a more important factor than their past work together and the political support.
“Your Louisiana Supreme Court should revisit the issue of judicial recusal and expand the language of the code,” he said. “That sentence is very spare and provides very little guidance to judges with regard to when they may or must recuse. Why the Louisiana Supreme Court has done this is anybody’s guess.”