Lindquist
Lindquist

Politics & Government

Lindquist text message case: Still going, defense bills exceed $584,000

March 11, 2017 04:18 PM

UPDATED March 22, 2017 04:47 PM

Pierce County Prosecutor Mark Lindquist’s text messages are back in court again, and taxpayers are still underwriting efforts to prevent their disclosure.

According to the latest figures from the county’s risk management division, the public bill for the long-running legal tussle stands at $584,989 and climbing, with the next stage of court action set for April 7 in Thurston County.

Coupled with other legal bills tied to complaints of misconduct by Lindquist and his subordinates, the collective costs rise to $1.92 million, with no near-term prospects for resolution.

The News Tribune sought comment Thursday from Lindquist regarding the text-message case and other actions. He declined a request to speak over the phone and responded with an emailed statement: “We have a duty to protect the people who protect our community.”

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A separate and lengthy e-mailed response came from deputy prosecutor Dan Hamilton, who said, among other things, that the text messages in question are, “private communications made outside the scope of employment.”

Recently filed court records include a striking revelation: a 2014 email from King County Prosecutor Dan Satterberg, assessing the text-message case before it was resolved.

“A dead bang loser,” Satterberg said via email to fellow county prosecutors. At the time, Satterberg was weighing Lindquist’s chances of convincing the Washington State Supreme Court that public officials could block disclosure of records by using private phones.

Satterberg’s prophecy proved correct. The Supreme Court ruled 9-0 against Lindquist in August 2015, concluding that public officials can’t claim a blanket privacy exemption for public records created on personal devices.

The Supreme Court ruled 9-0 against Lindquist in August 2015, concluding that public officials can’t claim a blanket privacy exemption for public records created on personal devices.

The court’s precedent-setting decision also set guidelines for examining such records. The California state Supreme Court recently referenced the Washington ruling in a similar case.

The same examination has been triggered in the current text-message case involving Lindquist. At issue: another 153 text messages sent and received in 2011 by the prosecutor on his private phone.

Lindquist filed a declaration last week contending all the messages are private and unrelated to public business, though he admits at least 24 involve unnamed county employees.

In his declaration, Lindquist briefly describes the messages and their content. He notes that 37 were sent to and from his wife. Another 37 are messages to and from friends he does not name. He describes 12 sent to “friends” in the media. He lists 12 messages as electronic spam or data-based messages that simply indicate a message was delivered.

He notes that another 34 messages are to and from county employees he does not name — nor does he say whether the employees used public devices in responses to him.

One statement from Lindquist’s declaration refers to a series of seven messages sent on Aug. 3, 2011. He states that the messages are “between me and a friend who is also a county employee noting location of online comments and joking about comments without describing content except for one sentence about a deceased public figure allegedly being in my house.”

Another 21 messages fall into an unknown category: The senders and recipients are not identified. Lindquist briefly describes the content of the messages with a word or two (“about a wedding,” for example), sometimes noting that the messages were sent “after hours.”

I did not use any of these messages to conduct public business, nor did I use them within the scope of my employment in a decision-making process for the Prosecutor’s Office.

Pierce County Prosecutor Mark Lindquist

“I did not use any of these messages to conduct public business, nor did I use them within the scope of my employment in a decision-making process for the Prosecutor’s Office,” Lindquist wrote.

Retired sheriff’s Deputy Glenda Nissen says Lindquist’s declaration is insufficient. She is seeking the messages to underline a broader claim that he retaliated against her at work for criticizing him politically.

Through her attorney, Joan Mell, Nissen has asked Thurston County Superior Court Judge Chris Lanese to settle the question by privately reviewing the actual messages to determine whether any qualify as public records, as in the first case.

“Lindquist has acted out of self-interest to hide his retaliatory antics that expose him to civil liability and otherwise make him look bad,” Mell wrote in a brief filed Thursday.

Lindquist lost the first round of the argument in 2015, when the state Supreme Court ruled against him in the case known in legal shorthand as “Nissen I.”

Attorneys for the county argued that any records created on a privately owned device were exempt from public disclosure. The Supreme Court disagreed, saying, “We therefore reject the County’s argument that records related to an employee’s private cellphone can never be public records as a matter of law.”

Hamilton, the deputy prosecutor speaking on Lindquist’s behalf, said the high court’s ruling was still favorable to the county because it “ruled that non-governmental private conversations of government employees are constitutionally protected and not subject to disclosure under the PRA (Public Records Act).”

A Thurston County judge followed the Supreme Court’s decision last year with a ruling that awarded $128,000 in fees and costs to Nissen. The penalties were based on a single text message written by Lindquist at 11:51 p.m. on Aug. 2, 2011. Lindquist and Hamilton continue to argue that the ruling was erroneous.

“The County chose not to appeal what it believed was a misapplication of the facts and law on this final single issue,” Hamilton said.

The message written by Lindquist said, “Tell allies to comment on TNT story.” It urged a subordinate to coordinate online comments on a News Tribune story about Nissen’s legal settlement with the prosecutor’s office. Additional records established that Deputy Prosecutor Mike Sommerfeld, using a pseudonym, wrote comments critical of Nissen.

The original case involved six text messages sent on one day in 2011. The current case, known as “Nissen II,” involves a larger batch of messages sent in the same time frame in 2011, over the course of a week.

Recently released records tied to the case have emerged from a separate lawsuit against Pierce County filed in late 2015 by the nonprofit Washington Coalition for Open Government. The records include correspondence from other county prosecutors, including Satterberg, who were being lobbied to support an amicus brief backing Lindquist’s position.

The brief by the Washington Association of Prosecuting Attorneys ultimately was approved and filed, but beforehand, Satterberg and other county prosecutors suggested the text-message case was problematic.

We will lose any PRA (Public Records Act) case that goes before the Supreme Court if we are arguing that an elected official can use a private cellphone to conduct public business. ... arguing for a privacy exemption for a public official in the contents of their cellphone that is also used for county business is a dead bang loser.

King County Prosecutor Dan Satterberg, 2014

“We will lose any PRA (Public Records Act) case that goes before the Supreme Court if we are arguing that an elected official can use a private cellphone to conduct public business,” Satterberg wrote. “There are a lot of facts specific to this litigation that make the case more complicated than that, but arguing for a privacy exemption for a public official in the contents of their cellphone that is also used for county business is a dead bang loser.”

Walla Walla County Prosecutor James Nagle also raised concerns about pursuing Lindquist’s argument.

“The reasons for an amicus are good, but I don’t think the Supreme Court will improve the situation,” Nagle wrote. “Use a payphone.”

Speaking on Lindquist’s behalf, deputy prosecutor Hamilton said Friday that the state’s prosecutors, among other entities, agreed to file an amicus brief and “win a positive ruling from the Supreme Court.”

WCOG’s lawsuit seeks records related to Lindquist’s alleged conflict of interest in the text-message case. To date, the arguments have hinged on the county’s method of disclosure (electronic records versus printed paper records), as well as disputes over extensive redactions. To date, the county has paid $51,672 to outside attorneys defending the case.

WCOG contends Lindquist created a conflict of interest when he intervened personally in the text-message case while continuing to make strategic decisions about it as the county’s chief legal officer. (Disclosure: News Tribune Executive Editor Karen Peterson sits on WCOG’s 19-member board, but she did not vote on this legal action.)

Questions of conflicts of interest in the text-message dispute led to a clash among the county executive’s office, Lindquist and the County Council in December 2015. A legal opinion obtained by then-Executive Pat McCarthy concluded it was problematic for Lindquist to act for the county and himself at the same time in the case.

Ultimately, County Council members hired Mike Tardif, an outside attorney recommended by Lindquist, to handle the ongoing text message litigation on the county’s behalf.

Filings from WCOG include a declaration from Arthur Lachman, an attorney and legal ethics expert, who repeats the allegation that Lindquist had a conflict of interest, though the county has argued otherwise.

“From the beginning, (Lindquist’s) personal interests implicated in the PRA matters were numerous and substantial,” Lachman wrote.

(Lindquist’s) affidavit is not sufficient for me to conclude that the texts are not public records. I reach the opposite conclusion. Those texts to and from other County employees would appear to be public records, even if merely transitory communications about where an employee can be found.

Toby Nixon, president, Washington Coalition for Open Government

WCOG’s president, Kirkland City Councilman Toby Nixon, has filed a declaration in the active text message case, contending the messages between Lindquist and county employees appear to be public records.

“(Lindquist’s) affidavit is not sufficient for me to conclude that the texts are not public records. I reach the opposite conclusion,” Nixon wrote. “Those texts to and from other County employees would appear to be public records, even if merely transitory communications about where an employee can be found.

“A text to and from a reporter is a public record if it pertains to a news story about the public agency. Texts about someone working in the prosecutor’s office would seem to be a public record. Texts about Pierce County cases or media coverage or public comments on County’s cases are public records.”

The test for Lindquist and the county in the next stage is the prospect of a private, in-camera review by Judge Lanese, if he decides Lindquist’s affidavit fails to provide “sufficient facts” about the text messages.

During a status conference hearing Feb. 24, Lanese hinted that he might take that step. Tardif, the attorney for Pierce County, said another affidavit from Lindquist would be the answer, rather than in-camera review.

The test for Lindquist and the county in the next stage is the prospect of a private, in-camera review by Judge Lanese, if he decides that Lindquist’s affidavit fails to provide “sufficient facts” about the text messages. During a status conference on Feb. 24, Lanese hinted that he might take that step.

“I’m going to guess that Ms. Mell (Nissen’s attorney) disagrees with you,” Lanese said. “And I’m going to disagree with you as well, Mr. Tardif.”

An in-camera review would expose Pierce County to the same examination conducted last year, which ended with an adverse ruling for the county, and an award of fees and costs to Nissen.

While Lindquist is the target of the text-message suit, decisions about defending the case and the associated costs rest with the County Council. On Thursday, council Chairman Doug Richardson said members will wait to see what happens in court before making further decisions.

“We are not defending Mark Lindquist,” Richardson said. “Our attorney (Tardif) is representing the county. That’s why he is currently reporting directly to our counsel on these matters.

“I’ve been around lawyers and courts enough to know that I never know what’s going to happen. How the judge rules would drive what the council actions would be. I’m not going to presuppose what the judge’s ruling is, or how we would proceed with regard to settling or disposing of the case.”

The council also wields theoretical authority over the other cases that allege misconduct by Lindquist and his subordinates. Together with the text-message case and the WCOG suit, those actions have generated legal bills that exceed $1.92 million, according to risk management records.

The remaining actions are tangled in federal and local courts, while the state bar association continues to review complaints alleging violations of professional rules by Lindquist and his subordinates.

Hamilton, the deputy prosecutor speaking for Lindquist, noted that public agencies routinely use outside attorneys to defend lawsuits and complaints. He added that King County spends more than Pierce County on outside attorneys.

“Taxpayers are not served by failing to defend against such lawsuits because to do so only encourages further meritless suits and even more defense costs for taxpayers in the future.”

Here’s a rundown of the active suits, bar complaints and their status:

▪ Lawsuits from Nissen and retired sheriff’s Deputy Mike Ames, filed in U.S. District Court in 2016. The suits allege Lindquist and his subordinates tried to destroy the deputies’ reputations.

To date, judges have dismissed claims against Lindquist in his personal capacity, but accompanying claims against Pierce County remain active, and additional rulings are pending. If the federal suits are dismissed, the suits could return to local courts. The dispute then would hinge on state laws rather than federal statutes.

Combined costs to date (excluding Nissen’s text-message case): $910,303.

▪ Professional bar complaints accusing Lindquist and six subordinates of misconduct.

Bar complaints are not public records in their initial stages. The state bar association faces no obligation to disclose them publicly unless they reach the stage of hearings. Complaints and resulting investigations are confidential. The process leaves room for “appeals,” similar to court procedures, but reviewed by an independent committee.

Disciplinary action is rare; the bar association received 2,081 complaints (“grievances”) against lawyers in 2015. Most ended without consequence; 74 lawyers received some form of discipline in 2015, according to the bar’s discipline system annual report. The figures include some overlap from prior years.

The News Tribune has obtained records of the original complaints, filed by several individuals, as well as replies from the bar association’s office of disciplinary counsel. Those replies indicate the bar has dismissed complaints against Deputy Prosecutors Lori Kooiman, Tim Lewis and Mike Sommerfeld.

Two more complaints against Deputy Prosecutor Jared Ausserer and former Deputy Prosecutor James Richmond have been dismissed after an initial review, but appeals of both decisions are expected from the complainants (“grievants”).

Complaints against Lindquist remain under review.

Defense costs for the complaints have reached $227,513, according to risk management figures.

“The people responsible for the expense to taxpayers are the people who file these baseless lawsuits and complaints, not those who defend against them,” Hamilton said.