Pierce County must pay more than $118,000 in fees and fines for failing to disclose a text message created in 2011 on Prosecutor Mark Lindquist’s private phone, a judge ruled Friday.
The decision by Thurston County Superior Court Judge Gary Tabor is a victory for sheriff’s deputy Glenda Nissen, who has sought text messages from Lindquist’s phone for more than four years.
It’s also a loss for Lindquist, who orchestrated a three-front defense against Nissen’s lawsuit and subsequent appeals using his staff members, a private attorney working for free and other private attorneys who charged the county more than $325,000 in legal fees, according to public records.
The bulk of the penalties announced Friday go to fees incurred by Nissen’s attorney, Joan Mell. Tabor also fined the county roughly $9,700 for withholding the records.
His ruling left little doubt about the victor.
“Ms. Nissen is the prevailing party in this case,” he said. “Ms. Nissen was unrelenting in going forward on these issues and she prevailed. She’s entitled to the costs that I’ve awarded and the penalties.
“I understand that Pierce County has argued that much of what has taken place was outside their control because the ball was really in Prosecutor Lindquist’s court.”
Ms. Nissen is the prevailing party in this case. Ms. Nissen was unrelenting in going forward on these issues and she prevailed. She’s entitled to the costs that I’ve awarded and the penalties.
Judge Gary Tabor
The judge referred to the complicated nature of the case: The records were created by Lindquist on his personal phone, but his role as the county’s highest ranking legal officer also gave him control of defense strategy throughout the lifespan of the case.
In November, an argument over conflicts of interest led to the appointment of an independent attorney, Michael Tardif, to represent the county’s separate interests.
Tardif said Friday he was unsure of next steps; asked about the prospects of an appeal, he said he would have to check with members of the County Council first.
After the hearing, Nissen, an 18-year veteran of the sheriff’s office, allowed herself a few relieved tears.
“I’m emotionally overwhelmed,” she said. “I’ve got to absorb this. I’ve respected that judge since day one. I’m really, really happy.”
Attorney Stewart Estes has represented Lindquist’s personal interests in the case at no cost since 2011. Speaking on Lindquist’s behalf Friday, Estes said the decision was a win, and that Nissen didn’t get the full award she sought — roughly $400,000.
The full amount Nissen sought included costs incurred during the lengthy appeals process. Tabor declined to award those fees, saying he lacked the legal authority.
“This case has always been about the privacy and personal safety of all public employees in Washington,” Estes said via email. “The reduction reflects the fact that we won on the key issues. The Supreme Court found that the County and the Prosecutor acted in good faith, and the ruling today confirms that. The other win for us was that we now have rules for what was a very gray area when we started in 2011.”
We won on the key issues. The Supreme Court found that the County and the Prosecutor acted in good faith, and the ruling today confirms that.
Stewart Estes, attorney for Prosecutor Mark Lindquist
The key text message from Lindquist’s phone was sent to his then-employee, deputy prosecutor Mary Robnett, shortly before midnight on Aug. 2, 2011. It said, “Tell allies to comment on TNT story.”
The story Lindquist mentioned appeared in The News Tribune. It referred to a settlement agreement between Nissen and the county. Nissen had claimed that Lindquist retaliated against her at work in response to political criticism. The story described the $39,500 settlement, which included a stipulation that Lindquist would not engage in further retaliation.
Robnett didn’t comment on the news story, but others did, including deputy prosecutor Mike Sommerfeld, who posted anonymous online comments under a pseudonym that disparaged Nissen and Mell, despite the legal agreement not to do so.
Discovery of Sommerfeld’s comment, uncovered by The News Tribune earlier this year, led to Sommerfeld being relieved of his duties as legal adviser to Sheriff Paul Pastor.
After publication of the story, Nissen sued for access to text messages on Lindquist’s private phone, believing they would prove he violated the nonretaliation clause.
Lindquist and private attorneys hired by the county subsequently argued that none of the messages on Lindquist’s private phone was subject to public disclosure. The lawsuit continued for four years. In August, the Washington Supreme Court issued a ruling that said the text messages on Lindquist’s phone could be public records if they pertained to public business.
I understand that Pierce County was between a rock and a hard place throughout much of this. I think there should have been a series of serious discussions between counsel and Mr. Lindquist, but that’s not really my province. I am in effect holding the county responsible for the way that this all played out.
Judge Gary Tabor
In an affidavit filed in December, Lindquist argued that none of the messages on his phone pertained to public business. He argued that the message to Robnett, who he did not identify as a subordinate, involved political management of a news story.
In February, Tabor disagreed with Lindquist, and ruled that the “Tell allies to comment” text message was a public record. Friday’s ruling on fees completed the circle. Tabor discussed the Supreme Court’s August ruling and its importance in future disclosure cases.
“It was a important decision that will set precedent from this point forward,” he said. “I understand that Pierce County was between a rock and a hard place throughout much of this. I think there should have been a series of serious discussions between counsel and Mr. Lindquist, but that’s not really my province.
“I am in effect holding the county responsible for the way that this all played out. With the guidance of the Supreme Court’s opinion, in the future cellphone activity is going to be handled differently by employers.”
Friday’s ruling doesn’t end the argument over Lindquist’s text messages, or Nissen’s attempts to obtain them.
A related lawsuit filed by Nissen in 2011 touches on the same circumstances, and seeks about a week’s worth of text messages created in the same 2011 time frame. The discovery process in that case is still continuing, with possible disclosures and legal arguments still ahead.