There are no grounds requiring the recusal of Fifth Judicial District Court Judge Terry Doughty from a 2014 lawsuit in Winnsboro in spite of claims Doughty exhibited bias or prejudice toward the plaintiffs’ attorney, a district court judge ruled last week.
A motion to recuse Doughty from the breach of contract lawsuit, KT Farms and others v. Citizens Progressive Bank and others, sparked a hearing held May 3 at the Franklin Parish Courthouse before Fifth Judicial District Court Judge James “Jimbo” Stephens. Stephens presided over the hearing as an ad hoc judge to hear a challenge about Doughty’s ability to be a fair and impartial judge to all parties in the lawsuit, particularly toward Monroe attorney Sedric Banks.
At the conclusion of the hearing, Stephens ruled Doughty would continue to preside over the KT Farms lawsuit since Banks had failed to produce any evidence showing Doughty had exhibited any bias or prejudice against him or his clients.
“Nothing has been presented to this court that shows Terry Doughty was biased or prejudiced against KT Farms or Mr. Banks,” said Jimbo Stephens. “He (Doughty) has conducted himself fairly and impartially.”
The thrust of Banks’ motion to recuse Doughty relied on a comment the judge made during an August 2016 hearing in a Richland Parish case, David Dewayne Stowe Sr. and others v. Donald Slade Jordan and others, in which Banks represents the plaintiffs. At that time, Doughty remarked that “...every case you (Banks) have is always complicated, attorneys are doing things to undermine you, all these things and I don’t understand why everybody’s picking on you instead of anybody else, but it happens in every case you have...”
Those remarks indicated bias and prejudice, Banks claimed in his arguments to the court last week. Prior to the hearing, Banks issued a subpoena to Doughty so the judge could be questioned under oath.
The hearing was lively, since most of Banks’ questions drew objections from several attorneys representing defendants in the case, including two banks: Citizens Progressive Bank of Columbia and Commercial Capital Bank of Delhi. Most of the objections challenged the relevance of Banks’ questions to the KT Farms lawsuit. Jimbo Stephens sustained many of those objections, repeatedly instructing Banks to keep his questioning of Doughty within boundaries set by the court.
At times, certain subjects raised in Banks’ questions to Doughty drew emphatic objections from counsel. Was Doughty’s Sunday school teacher appointed an expert in one of Banks’ cases before the judge? Objection. When did Doughty have a business relationship with Delhi tax preparer David Stephens (who also is a defendant in Stowe v. Jordan, from which Doughty recused in light of his relationship with David Stephens and his wife, Michelle Ogden Stephens)? Objection. Was Doughty working in the Fifth Judicial District Attorney’s office when Michelle Ogden’s husband, Randy Ogden, died in 2007? Objection.
It is unclear whether Banks’ scattershot array of questions were part of some underlying strategy. Jimbo Stephens as well as the defendants’ attorneys — including Terry Doughty’s brother, David Doughty, a Rayville attorney with Cotton, Bolton, Hoychick & Doughty — expressed frustration with Banks for switching from one thought to another. “Where is this going?” was a question repeatedly asked by the court and counsel.
When Banks asked Terry Doughty whether the judge had any personal relationships with directors at Citizens Progressive Bank or Commercial Capital Bank (each bank is involved in the KT Farms lawsuit), several defendants’ attorneys rose with a loud chorus of “Objection,” each attorney insisting Banks’ questioning had gone beyond boundaries established by the court.
“You don’t own stock in any of the banks involved in this suit?” Banks said.
“No,” Terry Doughty said.
“Do you have any relationships with any of the banks’ board directors?” said Banks, eliciting the objections from defendants’ attorneys which were sustained by Jimbo Stephens.
Members of a bank’s board of directors are public records, accessible through the state Office of Financial Institutions. The bank directors at Citizens Progressive Bank include Chris Sullivan, Dr. G. Michael Davis, Dustin Morris, E. Linus Carroll Jr., Gary D. Sanford, James H. Street, John Cooper, Monty B. Adams, and Thurman A. Roberts Jr. The bank directors at Commercial Capital Bank include Jerry G. Ezell DDS, Joe D. Jones, Larry G. Tubbs, Lawrence “Larry” W. Pickett Jr., Marilyn V. Loftin, Shannon W. Lockard, Shelton T. Parker Jr., and Wilfred B. McEacharn.
One of the few subjects which did not draw a battery of objections were Banks’ questions to Terry Doughty about the judge’s chances at being nominated as a U.S. District Court judge. Banks’ subpoena of Terry Doughty last month was the first public mention that Terry Doughty might be vetted as a nominee to the federal court. The president of the United States makes the nomination, which would be based on recommendations from U.S. Sens. John Kennedy and Bill Cassidy, though congressmen such as U.S. Rep. Ralph Abraham could have some influence on those discussions.
Terry Doughty confirmed through testimony he had talked about his aspirations to become a U.S. District Court judge on several occasions with Luke Letlow, of Start. Letlow is Abraham’s chief of staff.
Banks asked Terry Doughty whether he had ever told anyone Banks was “messing up” or impeding his chances of being nominated.
“I don’t remember ever saying that,” said Terry Doughty, who later explained, “I talked to Luke Letlow about the articles in The Ouachita Citizen or The Franklin Sun....Why are all those things in The Franklin Sun?....I talked to Luke Letlow about how those articles were affecting that.”
“Did you tell anybody I was a ‘kook lawyer?’ ” Banks said.
“No,” Terry Doughty said.
“Do you think I’m messing up your judgeship?” Banks said.
“No,” said Terry Doughty.
Shortly thereafter, Terry Doughty’s posture in the witness chair stiffened and — referring to Banks’ accusations against him and to the attorney’s attempt to recuse him — said, “You can’t kick me in the shin and then tell me to recuse myself.”
Other strings of objections were made to Banks offering testimony in the form of questions to witnesses, without the attorney being sworn in and thus providing the defense with an opportunity to cross-examine him.
“Mr. Banks doesn’t need to be testifying,” David Doughty said.
Other objections portrayed Banks’ questions as attempts to re-litigate the Richland Parish case, Stowe v. Jordan in which David Stephens remains a defendant.
“It is inappropriate and unfair for him (Banks) to litigate these matters in the Stowe case without the other 11 attorneys present,” said Adam Cossey, an attorney with the Monroe law firm of Hudson, Potts & Bernstein, who represents David Stephens and Michelle Ogden Stephens.
Jimbo Stephens questioned whether Terry Doughty’s remarks at the heart of Banks’ argument constituted bias or prejudice against Banks.
“Assuming what you say is true, which I’m not taking as true, it would be a bias in favor of the Stephenses, not you,” said Jimbo Stephens, who is not related to the Stephens couple.
Terry Doughty recused from Stowe v. Jordan because he had a business relationship with David Stephens as well as a personal relationship with Michelle Ogden Stephens. It was Banks’ motion to recuse Terry Doughty that prompted the recusal.
When asked about why he did not disclose his relationship with the Stephens couple until 14 months after the Stowe v. Jordan case was first filed at the Richland Parish Courthouse, Terry Doughty said, “It was 14 months before I realized this was the business,” referring to Hot Flash Monogramming LLC, in which Terry Doughty was listed as a co-manager with David Stephens and their wives. (The business is no longer active, and Terry Doughty has remarried.)
“To be honest with you, I couldn’t remember his name,” said Terry Doughty, referring to David Stephens. “If you asked me who Michelle Ogden’s husband was, I couldn’t have told you.”
At that point, Jimbo Stephens cut off Banks’ line of questioning: “It’s becoming clear to the court what you’re doing.”
“You’re trying to set the stage for my hearing in Stowe v. Jordan on June 5,” said Jimbo Stephens, who was assigned the Stowe v. Jordan case after Terry Doughty recused.
Terry Doughty later elaborated on his relationship with the Stephens couple: “I was friends with Michelle Ogden for several years and my former wife worked with Michelle Ogden embroidering for Hot Flash Monogramming.”
“I didn’t know they were married,” he added.
When Terry Doughty was tendered for cross-examination, his brother, David Doughty, questioned him about rulings and motions and the process of discovery in Stowe v. Jordan. Those topics were previously forbidden to Banks during his questioning of the witness. When Banks raised an objection to that effect, Jimbo Stephens limited David Doughty’s questions to the same boundaries set for Banks.
David Doughty as well as James Carroll, a Columbia attorney with the law firm Mixon, Carroll & Frazier, spent a lengthy amount of time recounting instances in the court record or quotes by Terry Doughty in open court that indicated the judge had extended “every possible courtesy” to Banks and his clients, in spite of objections from other counsel.
“Judge Doughty bent over backwards to help Mr. Banks and his clients,” said Carroll, referring to some 100 pages of court transcripts that revealed the freedom allowed Banks during his case.
Banks claimed the transcripts simply indicated he was unable to persuade Terry Doughty to understand the arguments which were made.
While Carroll read clips of Terry Doughty’s remarks in open court, one of Banks’ clients rose and left the courtroom, muttering that he could no longer sit there and listen to Carroll’s arguments, which were “bullshit,” he murmured in a comment directed to The Sun.
A hearing on whether sanctions, or penalties, should be levied against Banks in the KT Farms case is expected to be held soon.
“Plaintiff’s counsel (Banks) should not be allowed to use a motion to recuse as a litigation tool to ‘judge shop’ in the Fifth Judicial District Court,” wrote David Doughty in an April 27 memorandum filed in the KT Farms case.
While the court was off the record, an attorney was overheard to tell Jimbo Stephens, Banks and other attorneys that Banks had a pattern: “Once he loses, he files his motion to recuse.” That comment appeared to incense Banks, who called for any other comments to be made on the record.
James Mixon, an attorney with Mixon, Carroll & Frazier, claimed Banks had acted unethically, which prompted an objection from Banks: “This is a total ambush.”
Jimbo Stephens called the discussion about Banks’ conduct to end.
“You can take that up with the Office of Disciplinary Counsel,” Jimbo Stephens said.
Mixon provided a list of cases from several courts along with court documents that he said would show Banks had a pattern of trying to recuse judges when he lost. Jimbo Stephens allowed the cases and court documents — many of which were detailed in a news report “Recusal tactics draw criticism” last month by The Sun — to be proffered as evidence, but Jimbo Stephens said the court would not consider Mixon’s arguments.
Though Fourth Judicial District Court Judge Sharon Marchman had been issued a subpoena to testify at Terry Doughty’s recusal hearing, Jimbo Stephens ruled Marchman would not be allowed to testify (she did not appear in court last week).
Carroll said a certain statute controlling the subpoenas of judges only allowed a judge to testify if there were no other practical means of obtaining information. Since Banks’ subpoena of Marchman claimed he wanted her to testify as an expert on matters of law, the subpoena ran afoul of the statute since the presiding judge — Jimbo Stephens — was the court’s expert on legal matters, Carroll argued.
“This court is the expert in matters of law,” Carroll said.
Stephens agreed with Carroll’s argument, though he said Marchman would be allowed to testify as to facts about Terry Doughty, but she would not be allowed to testify as an expert on law.
Banks then argued that Marchman should be allowed to testify as an expert on ethics, not law.
That argument could place Marchman in violation of the Code of Judicial Conduct, Stephens argued, since she would be offering public comments on a pending proceeding that might reasonably affect its outcome. Such actions were prohibited and would place in doubt Marchman’s claim as an authority on ethics, Stephens said.
Stephens’ remarks appeared to cause Terry Doughty to refrain from offering certain testimony after he first took the stand.
After the judge was sworn in, Banks asked Terry Doughty to explain how he was familiar with Banks’ cases. (Banks indicated in court documents that he was searching for testimony that Terry Doughty’s remarks about Banks’ “every case” stemmed from discussions of the attorney’s cases — some of them controversial and involving accusations against other judges — with other individuals.)
“I based it on cases I’ve had with you,” Terry Doughty said.
“How many cases?” Banks said.
“Three,” Terry Doughty said.
“Do you remember those?” Banks said.
“Yes,” Terry Doughty said.
Banks paused, perusing documents before him. “What were those cases?” said Banks, awaiting Terry Doughty’s answer.
Terry Doughty could not immediately answer the question. He hesitated at several points and later — looking at Stephens — said he did not believe he could offer public comment on cases, though the canon referred to earlier by Stephens had certain criteria that were not applicable. After further questioning, Terry Doughty provided the name of all three cases, which led to more of Banks’ random probing and objections from defendants’ attorneys.