Pierce County executive seeks judicial intervention to stop Lindquist in phone-records case

What began as a private disagreement between Pierce County Executive Pat McCarthy and Prosecutor Mark Lindquist erupted into a full-fledged legal war Wednesday.

Backed by outside lawyers, McCarthy and county risk manager Mark Maenhout filed a motion asking a Thurston County judge to appoint Seattle attorney Jessie Harris as an independent prosecutor to represent the county in a long-running case involving Lindquist’s personal phone records.

Arguments are scheduled for Dec. 18 in Olympia.

McCarthy contends Lindquist has a conflict of interest, can’t provide unbiased legal advice and continues to drag his feet in defiance of the Washington State Supreme Court while exposing taxpayers to financial risk.

Lindquist’s office disagrees, won’t back down and refuses to appoint the outside attorney McCarthy seeks. Instead, he has appointed an attorney of his own choosing with a prior involvement in the case.

Earlier this week, McCarthy asked the County Council to intervene. Members declined, saying they needed more information, though some hinted publicly that going to court might be the only path to a resolution.

Now McCarthy wants a judge to settle the debate. She contends Lindquist’s tactics are a thinly disguised power play that turns the county into “a captive litigant,” subject to the prosecutor’s exclusive control.

Lindquist can’t continue to represent the taxpayers in the phone records case, she contends, because the phone-records lawsuit alleges misconduct on his part, and he can’t separate his personal interest from the public interest.

“The county now seeks judicial intervention in order to ensure independent representation and to fully and promptly comply with the Supreme Court’s order,” according to her motion, filed by attorney Hunter Abell of the Seattle law firm Williams, Kastner and Gibbs.

“Prosecutor Lindquist’s refusal to appoint a special deputy prosecutor places the County in the unacceptable position of being a captive litigant, subject to the decisions of Prosecutor Lindquist and an attorney appointed by Prosecutor Lindquist. … The Court has the power to rectify the situation, and should do so.”

“The County is in the untenable position of being in litigation where the County Prosecutor has a personal stake in the outcome, while he is also the primary source of legal advice for the County.”

The News Tribune sought comment from Lindquist. He did not respond. Instead, an emailed reply came from deputy prosecutor Dan Hamilton, a senior member of the prosecutor’s civil division who has worked on the phone-records case.

The tone of the message underscored the bitterness of the roiling debate, as well as Lindquist’s willingness to pit the County Council against McCarthy.

“The real issue is not a supposed conflict of interest by the County’s current lawful attorneys, but a conflict the Executive branch has with both the independently elected County Council and Prosecutor,” Hamilton wrote.

“The County expects the Court will reject this unfortunate attempt by the Office of the Executive to usurp the powers granted by law to other independent branches of government. In bringing this baseless motion, the County Executive has not been well advised.”

The phone-records case involves a sheriff’s deputy, Glenda Nissen, who sued for access to Lindquist’s text messages in 2011, believing they would prove he retaliated against her in the course of a long-running dispute.

The county has paid outside attorneys $315,945 to defend the case over the past four years. Lindquist and his staff members have been directly involved in writing multiple legal briefs tied to the matter.

Lindquist also intervened personally in the case. He received free representation from Seattle attorney Stewart Estes, whose law firm subsequently received more than $587,000 in taxpayer-funded legal work on other cases. Those facts are part of a recently announced ethics investigation of Lindquist’s office.

On Aug. 27, the state Supreme Court rejected Lindquist’s arguments that his privacy rights protected the text messages. The court’s ruling required Lindquist to review the text messages and disclose any that pertain to public business, or file an affidavit saying none qualify as public records.

To date, Lindquist has not done so. McCarthy and Maenhout fear that taxpayers will face possible penalties and fines for failure to disclose public records, hence their request for an outside attorney.

On Nov. 10, McCarthy sent Lindquist a letter citing the perceived conflict of interest. She asked him to appoint an outside attorney, Jessie Harris, to represent the county’s interests.

At first, Lindquist declined, saying (via a letter from Hamilton) that no conflict existed.

Late on Friday, Nov. 20, Lindquist changed course, and announced the appointment of a special deputy prosecutor — but he didn’t pick the attorney McCarthy sought.

Instead, Lindquist appointed Ramsey Ramerman, an assistant city attorney in Everett who had prior involvement in the phone-records case and wrote legal briefs in support of Lindquist’s position.

Lindquist did not consult McCarthy or Maenhout before appointing Ramerman. They believe the choice doesn’t serve the needs of taxpayers, according to court documents filed Wednesday.

“(Ramerman’s) appointment does not provide the independent legal advice required by the County,” McCarthy’s brief states.

This story was originally published November 25, 2015 at 9:19 AM with the headline "Pierce County executive seeks judicial intervention to stop Lindquist in phone-records case."