A court hearing Friday could resolve the argument over Pierce County Prosecutor Mark Lindquist’s phone records. Peter Haley Staff photographer
A court hearing Friday could resolve the argument over Pierce County Prosecutor Mark Lindquist’s phone records. Peter Haley Staff photographer

Crime

Who’s in charge here? County powers brace for legal collision

December 17, 2015 06:57 PM

UPDATED December 18, 2015 05:59 PM

An unprecedented legal spectacle will play out Friday in Thurston County Superior Court, as Pierce County’s elected leaders clash in an argument drawing attention from law junkies throughout the state.

The case has everything: arguments over conflicts of interest, separation of powers, legal misconduct and public disclosure. As many as eight lawyers could appear, all claiming to represent Pierce County in some fashion, and contending that their rivals in court lack the authority to claim the same.

At its heart, the argument involves six text messages written by Prosecutor Mark Lindquist four years ago on his personal phone. Since 2011, sheriff’s deputy Glenda Nissen has been trying to obtain those messages, believing they will prove Lindquist retaliated against her because she criticized him politically.

The case has sailed to the Washington State Supreme Court and back, and taxpayers have shelled out $315,945 to defend it, though that number has likely increased in recent weeks. The high court ruled against Lindquist’s claim that nothing on his phone could be a public record, instead saying that text messages could be public if they pertained to public business.

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The case has sailed to the Washington State Supreme Court and back, and taxpayers have shelled out $315,945 to defend it, though that number has likely increased since it was tallied a few weeks ago. The high court ruled against Lindquist’s claim that nothing on his phone could be a public record, instead saying that text messages could be public if they pertained to public business.

Lindquist was ordered to review the text messages, provide any that met the definition of a public record, and submit an affidavit explaining why some of the messages might be private.

On Dec. 10, Lindquist finally responded. All the messages were private, he said in an affidavit. But that statement came after County Executive Pat McCarthy sued for the right to seek outside legal advice uncontrolled by Lindquist. That provoked an argument with the prosecutor and the County Council. For two months, Lindquist has refused to appoint the attorneys McCarthy requested, though they have filed several briefs and will appear in court Friday morning. Lindquist’s staffers have filed motions urging the court to disregard any statements from those lawyers.

In short, it’s a gigantic legal mess, thrown at the feet of Superior Court Judge Gary Tabor. How it ends is anyone’s guess.

WHAT THE EXECUTIVE WANTS

McCarthy wants the court to appoint outside attorneys Jessie Harris and Hunter Abell to represent the county’s interests in the phone-records case. She’s armed with legal opinions that say Lindquist has a conflict of interest and cannot fairly represent taxpayers and himself at the same time.

The conflict puts taxpayers at continuing risk, McCarthy contends. She and her attorneys argue that she is duty-bound to seek outside legal advice and protect the county from fines and penalties tied to the phone-records case. They argue that Lindquist is actively trying to stop her from seeking that advice.

“The right to counsel is a closely guarded and important right,” Harris and Abell wrote in one of their recent briefs. “An integral component of that right is the right to receive conflict-free advice.”

Lindquist disagrees, and insists there is no conflict — but the opinion comes from his staffers and hand-picked appointees. McCarthy’s attorneys, Williams and Abell, say the conflict is obvious. In legal briefs filed this week, they argue that Lindquist is neglecting his official duties as well as the rules of professional conduct that apply to all lawyers.

“Prosecutor Lindquist is wholly conflicted in this matter,” the briefs state. “Prosecutor Lindquist has a personal interest in the outcome of this matter as the case involves allegations of personal misconduct against him.”

Prosecutor Lindquist is wholly conflicted in this matter. ...Prosecutor Lindquist has a personal interest in the outcome of this matter as the case involves allegations of personal misconduct against him.

Excerpt of legal briefs filed by McCarthy’s attorneys

Lindquist and his staffers contend that his recent appointment of two outside attorneys, Michael Tardif and Jeffrey Freimund, addresses concerns about the appearance of conflict in the phone-records case, though they continue to deny any conflict exists.

McCarthy’s outside lawyers say the appointment fails to satisfy the need for independent legal advice. They note that Lindquist continues to control the outside attorneys. He and his staff have directed Tardif and Freidmund to report to the County Council, not the executive. Meanwhile, Lindquist’s staffers continue to file legal briefs regarding other aspects of the phone-records case.

McCarthy’s attorneys use the analogy of a salad bar to describe Lindquist’s tactics.

“Prosecutor Lindquist is engaged in ‘salad bar’ litigation, where the newly appointed deputy prosecutors take on certain aspects of the litigation, and the Prosecutor’s office retains control of others,” the briefs state. “It entirely defeats the purpose of independent counsel.”

McCarthy and county risk manager Mark Maenhout also contend that Lindquist and his staffers have kept them at arm’s length in the phone records case, supplying limited information about legal strategy. Lindquist’s staffers disagree.

McCarthy said Wednesday she would accept the judge’s decision, whatever the outcome.

Asked the same question Friday, Lindquist offered no such promise. In an emailed statement, he reserved the option to appeal the court’s ruling if he and his staff don’t like it.

“As with all legal issues involving the County in the civil arena, our Civil Division will review the Court’s decision, consult our client and make a recommendation to me based on the best interest of the County,” Lindquist said. “Pete Carroll doesn’t announce the game plan before kickoff.”

WHAT LINDQUIST WANTS

Lindquist, his staffers and appointed attorneys want the phone-records case to end.

They argue that Lindquist satisfied the Supreme Court’s directive by filing an affidavit Dec. 10 that declared the text messages on his phone were private and exempt from public disclosure.

In that affidavit, Lindquist generally described six messages. He didn’t provide the content or name the recipients. The messages amount to a total of 31 words, he said.

Other records from the case make the identities of the recipients plain. Two messages were exchanged with former Lakewood Police Chief Bret Farrar, reportedly discussing a meeting Lindquist had missed. One message was sent to county sheriff’s spokesman Ed Troyer, requesting a phone call.

The other three messages were sent to deputy prosecutor Mary Robnett, who at the time was Lindquist’s chief criminal deputy. One of the messages “suggested a possible political strategy to deal with a news story,” Lindquist wrote in his affidavit.

The story appeared online in The News Tribune on Aug. 2, 2011. It described a settlement between Lindquist’s office and Nissen tied to a complaint that she filed alleging retaliation by Lindquist in response to Nissen’s political criticism.

Lindquist contends his text message to Robnett about the news story is private and political. Nissen and her attorney, Joan Mell, disagree. They argue that the message proves what they’ve claimed for four years: that Lindquist continued to retaliate against Nissen after agreeing to a settlement and promising not to.

Lindquist also seeks something else in his pleadings: a ruling that limits the executive’s role in county litigation. Lindquist and his staffers say the county council should control it. McCarthy and her attorneys disagree, but deputy prosecutor Dan Hamilton filed briefs Thursday accusing McCarthy of a power grab.

“The Executive cannot appear for the county and request a court to approve her effort to judicially usurp both the Council’s exclusive authority to control litigation and the separately elected Prosecutor’s authority to appoint special deputies,” Hamilton’s brief states.

The Executive cannot appear for the county and request a court to approve her effort to judicially usurp both the Council’s exclusive authority to control litigation and the separately elected Prosecutor’s authority to appoint special deputies.

Excerpt of legal brief by Deputy Prosecutor Dan Hamilton

Council chairman Dan Roach recently wrote a letter to McCarthy’s attorneys that essentially attempted to fire them, though it didn’t reflect a council vote.

Tuesday, council members passed an emergency resolution, declaring support for Lindquist’s appointed attorneys. The resolution was added to the council’s agenda without public notice.

McCarthy’s legal adviser, Al Rose, appeared at the council meeting. He argued the resolution had no legal force and violated the county charter. Council members passed it anyway.

“We have to pass this to strengthen our position,” Roach said. He added that the council was not taking sides, but said, “The executive is not a dictator.”

Thursday, McCarthy’s attorneys filed briefs that responded to the council’s emergency resolution. They described it as “a transparent political effort to short-circuit the Executive and the public in this matter.”

WHAT NISSEN WANTS

Nissen and her attorney, Joan Mell, want the text messages they’ve been seeking for four years -- not just those from Aug. 2, 2011, but a set from July 29 to Aug. 4 of that year.

Mell has filed motions seeking a contempt of court ruling against Lindquist, as well as a request for in-camera review of his messages. She and Nissen believe the text messages are public, and that his manipulation of a news story proves his retaliation.

“Lindquist asks to hide from public scrutiny his actual communications with his top Deputy Prosecuting Attorney about the very work-related article he admits he manipulated,” Mell’s brief states. “Lindquist asserts a nonexistent ‘political’ exemption from public disclosure, and alternatively, a ‘friend’ exemption. the Supreme Court did not authorize such nonsense.”

Lindquist’s efforts to manage the 2011 news story are undisputed. Public records are replete with references to his involvement, and he’s admitted trying to seek changes in wording after the story was published.

Lindquist asks to hide from public scrutiny his actual communications with his top Deputy Prosecuting Attorney about the very work-related article he admits he manipulated. Lindquist asserts a nonexistent ‘political’ exemption from public disclosure, and alternatively, a ‘friend’ exemption. the Supreme Court did not authorize such nonsense.

Excerpt of legal brief by Joan Mell, Nissen’s attorney

The News Tribune, aware of the Nissen settlement, had been seeking an official statement from county risk manager Mark Maenhout. Behind the scenes, records show Lindquist fussed with the wording of the statement throughout the day. One email from former county spokesman Hunter George, included in court briefings, gives a sense of Lindquist’s intense involvement.

“I spent FIVE HOURS negotiating with Lindquist on a revised statement from Maenhout,” George wrote. “Five hours. On a 2-sentence statement. Man.”

Later that night, at 11:51 p.m., Lindquist wrote his text message to Robnett — the message he now contends was private because it was about “political strategy to deal with a news story.”

Last week, Robnett told The News Tribune and McCarthy’s staffers that she didn’t remember the content of the text message. She said she would be willing to disclose the message if she could obtain it. She said she asked Lindquist to provide her a copy of the message — technically, she has the same rights to it as Lindquist. Robnett said Lindquist did not respond to her.

Lindquist had won an election to offce in 2010, eight months before the news story and the text message were written. Robnett questioned his description of the message as political, telling The News Tribune, “I don’t think there was a political campaign going on at the time. I think the election was over.”

Mell cites those points in her brief, saying that Lindquist is arguing in bad faith: She contends Lindquist is inventing a public disclosure exemption that doesn’t exist regarding a message he sent to his co-worker and chief criminal deputy, about a public settlement involving public money, his public office and another public employee.

“None of (Lindquist’s) excuses justify his refusal to simply give Detective Glenda Nissen the six texts now identified that are indeed public records,” her brief states.