WEST JORDAN — The legal battle between former Salt Lake County Recorder Gary Ott's family and his girlfriend and former employee Karmen Sanone won't have a resolution for at least another five weeks.
Insisting that Ott be present in court before proceeding, 3rd District Judge Bruce Lubeck decided Wednesday to delay testimony until Oct. 12.
The judge also declined to rule on whether he will approve or reject a motion to close the hearing to the public — a motion Utah journalists are fighting, arguing that unanswered questions remain about how and when Ott's health began declining and how it impacted his time in office.
At least three Salt Lake County elected officials — Clerk Sherrie Swensen, Assessor Kevin Jacobs and Surveyor Reid Demman — and a handful of current and past county employees, including Ott's former deputy Julie Dole, have been subpoenaed to testify under oath in the case.
"I really think this is potentially the public's last opportunity to find out about this," argued attorney Jesse Oakeson representing the Deseret News, Salt Lake Tribune, KTVX Ch. 4 and the Utah Headliners Chapter of the Society of Professional Journalists.
The judge's decision prolongs the dispute over whether Ott needs a permanent guardian and who that guardian should be — his siblings or Sanone, who worked as Ott's office aide and has also been identified as Ott's girlfriend, fiancée, wife, caregiver and longtime friend.
Ott, 66, has been identified as an "incapacitated adult" with a "mental capacity that is not temporary in nature" in court documents, specifically the agreement between Ott's family and Salt Lake County officials to have him resign from his elected position Aug. 1.
But faced with complicated legal and logistical issues that prevented both Ott's family and Sanone from bringing him to court Tuesday, Lubeck was reluctant to decide whether to keep the hearing open to the public or continue with testimony from both parties.
"This is a mess," the judge said. "This isn't remotely what I anticipated happening today. Not remotely."
Ott's independently appointed attorney, Dara Cohen, filed a motion last week to close the hearing to protect Ott's privacy. But Wednesday, Cohen withdrew her motion, hoping the court hearing would be able to proceed sooner rather than later so Ott would no longer be in the middle of two "competing decision-makers" — Sanone and his family.
Cohen said her motion supported by "privacy and dignity" compared to the media's "40 pages citing the constitutional law," means her motion to close the hearing "likely would not prevail."
Ultimately, Cohen said any public knowledge of the court proceeding likely would not impact Ott in his "day-to-day life" because he's not reading the online "comment threads" and that there have already been many media reports about his health.
Lubeck said he was "a little surprised" by Cohen's withdrawal. He said, personally, he believed Ott's right to privacy would "outweigh" the media's arguments.
"It seems to me that may cause him some damage even if he's unaware of it because he doesn't read the news or look at the paper because he's in a mental state that it has no meaning to him — but I don't know if he is or isn't," Lubeck said. "That's one of the reasons why we're having this hearing is to see if he's incapacitated and to what degree."
But Cohen argued that "leaving at the end of the day with two competing decision-makers in place will do more harm to (Ott) than a few more articles."
Ott's family's attorney, Mary Corporon, agreed.
"I have a concern that there is a well-taken fight on both sides of this issue and there may well be well-taken First Amendment issues. … I would much rather spend the time this morning to address who is going to be guardian and conservator for Mr. Ott than whether KSL or Deseret News or the Trib are present in the courtroom."
Sanone's attorney, Aaron Bergman, initially did not oppose the motion to keep the hearing open until after Sanone — who arrived late — whispered in his ear. Bergman then said Sanone wished the hearing would be closed because she was "concerned about the fact that to date the media has been a difficult thing for her, but also for Gary."
Sanone and Dole have been accused of "taking advantage" of Ott and hiding his condition so they could stay in their appointed positions in the recorder's office. Both women have denied those accusations.
"While we're going to be talking about things that took place during Gary's role as a county official — and to some extent, my client would like to exonerate herself … but on the other hand, she has serious concerns about privacy," Bergman said.
Lubeck questioned why Ott wasn't present at Tuesday's hearing.
Because of a decision Lubeck made on Aug. 30 to give Sanone the power to make medical decisions on Ott's behalf — due to an advance health care directive Ott signed in January of 2015 — that "created a conflict," Corporon said, because while Ott's siblings had financial conservatorship of Ott, they no longer have the power to make medical decisions for him and couldn't discharge him from the facility he is residing in.
Sanone, on the other hand, couldn't discharge Ott from the facility either, Bergman said, because while she can make medical decisions on his behalf, doctors won't discharge him until he has a new facility to go to, and Sanone couldn't find a new facility because she couldn't secure payment.
Corporon also said transporting Ott to court would be logistically difficult because he's become "agitated" and even "aggressive" if he strays from his routine.
"There is a report that at one point … he put a nurse into a headlock and smashed a TV set," Corporon said.
William Fontenot, an attorney appointed to be an impartial third party to provide information to the judge, said from his visits with Ott, he's difficult to communicate with, but "one reason why he has had those outbursts is maybe because he does feel a little bit confined."
"What he expressed to me and things I've heard is that he wanted to go home and (asked), 'Why am I here,' that sort of thing," Fontenot said.
Fontenot also noted that because Ott has trouble communicating coherently, the judge's interaction with him would be "of limited value."
But Lubeck was reluctant to let the case continue without Ott present, specifically because he didn't have an order from a doctor or physician declaring Ott was not able to travel to court.
"My feeling is he ought to be here and I want to talk to him," Lubeck said. "I'm making decisions (about) where he ought to spend the rest of his life and who it ought to be with and under what conditions and who is going to pay his bills. … I'd like to see him, and I don't think that's unreasonable."
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