Judge will review Lindquist texts, decide whether they’re public

A long-running, costly legal battle over text messages on Pierce County Prosecutor Mark Lindquist’s personal phone reached a crossroads Friday in Thurston County Superior Court.

Judge Gary Tabor decided to conduct a private, in-chambers review of messages sent and received by Lindquist more than four years ago and determine whether the messages are public records.

“I’m going to see if I can make a decision simply, one way or the other,” Tabor said. “Are these public or private texts?”

It sounded simple, but the decision followed four years of legal wrangling between the county and sheriff’s Deputy Glenda Nissen, and an argument that climbed to the Washington State Supreme Court and back.

Nissen believes the messages will prove her claim that Lindquist retaliated against her after brokering a legal settlement and agreeing not to do so. Since 2011, the county has paid $325,000 to outside attorneys in efforts to oppose disclosure of the records.

Tabor’s in-camera review, opposed by Lindquist and county attorneys until recently, carries freight that could be fiscally damaging.

On one hand, he could rule the messages are private, effectively ending the dispute. On the other, if he decides even one of the six text messages sent Aug. 2, 2011, are public, it will mean Lindquist and the county have wrongly withheld the records from Nissen and her attorney, Joan Mell, for four years: an outcome that exposes the county to potential fines and fees.

Tabor acknowledged the issues were thorny.

“This case has presented lots of unusual issues for me,” he said. “I am told that three of the six texts have been released.”

It was a not-so-subtle reference to disclosure outside the court of a key text message Lindquist sent to Mary Robnett, formerly the chief criminal deputy prosecutor in Lindquist’s office.

The message said, “Tell allies to comment on TNT story.” The story referred to appeared in The News Tribune on Aug. 2, 2011. It described a $39,500 settlement between Nissen and the county. She had filed a claim for damages, saying Lindquist retaliated against her at work because she criticized him politically.

Lindquist spent much of that day trying to manage the wording of the news story, according to various public records.

The message is part of the court case, one of the six at issue in court. Within the case, it’s still a confidential record, though it has been released by other means. The News Tribune obtained it via a public disclosure request to the county for a letter written by Robnett that included the content of the message.

Lindquist contends the text message was “political strategy” to manage the news story, and thus not a public record. Robnett disagrees, and she filed a declaration Jan. 9 in the court case, explaining her reasoning.

“This message, prepared by (Lindquist) and sent to me, is a directive to me, a subordinate county employee,” Robnett wrote. “Given these circumstances, the message he prepared and sent contains information that refers to or impacts the actions, processes and functions of Pierce County government and/or information that relates to the conduct or performance of Pierce County government.”

While Robnett did not comment on the News Tribune story, another Lindquist employee did. Deputy prosecutor Mike Sommerfeld, posting under a pseudonym, wrote a comment disparaging Nissen and her attorney, after the prosecutor’s office had explicitly agreed not to retaliate against Nissen.

The News Tribune revealed Sommerfeld’s actions in a story earlier this week. Lindquist, asked for comment on whether Sommerfeld will face any consequences for his actions, has not responded.

Tabor implicitly acknowledged those developments in court Friday, saying he was aware of Robnett’s declaration, and that the text message she received had been disclosed outside the courtroom.

“I understand the context of how all this played out,” he said.

In December, following a directive from the Supreme Court, Lindquist signed an affidavit giving general descriptions of the text messages. He characterized all of them as private and said he believed they had nothing to do with public business.

He did not name the recipients or identify them as public employees. Other records show the messages were sent to Robnett, sheriff’s spokesman Ed Troyer and Bret Farrar, then Lakewood’s police chief.

A separate legal development went unmentioned in court Friday, though all parties were aware of it: Nissen won an appeals court ruling regarding a larger set of Lindquist’s text messages, sent and received between July 29 and Aug. 4, 2011.

The appeals court ruled that Lindquist must review the new set of messages and determine whether any are public, just as he did in the original case. That review, still to come, could reveal as-yet-undisclosed material regarding the text-message case and surrounding issues.

Friday, Mell asked the judge to hold Lindquist in contempt. She contended his December affidavit failed to meet the standard of good faith required by the Supreme Court, because Lindquist didn’t disclose that the recipients of his six messages were public employees, including Robnett, Lindquist’s direct subordinate.

“Lindquist fails to even identify the official character and status of those recipients of his text messages,” Mell said. “He doesn’t clarify the subject, which so clearly relates to a case he was directly involved in negotiating and resolving.”

Mike Tardif, the outside attorney hired to defend the county, said the judge’s private review of the messages could resolve Mell’s objections. Stewart Estes, a private attorney who has represented Lindquist at no cost throughout the case, said Lindquist’s affidavit complied with the Supreme Court’s directive, even if Mell didn’t like it.

“You did what you were told, but you didn’t do it like we wanted you to,” Estes said. “If the plaintiff has an issue, she can argue after the decision about whether these are public records.”

Tabor reserved his options.

“Now is not the time for me to consider contempt of court,” he said.

Tabor gave little detail about his in-camera review. He didn’t say when he’ll finish it or when he expects to issue an order. He said he’s unsure how the process will end.

“Quite frankly, I don’t know how all this is gonna play out,” he said. “I may be surprised. There have been a number of surprises.”

This story was originally published January 22, 2016 at 9:33 AM with the headline "Judge will review Lindquist texts, decide whether they’re public."