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Recall petition against Mark Lindquist can move forward, judge says

Barring a reversal by the state’s highest court, an effort to recall Pierce County Prosecutor Mark Lindquist will move forward.

The recall petition was approved Friday by Kitsap County Superior Court Judge Jay Roof, a visiting judge appointed to avoid potential conflicts of interest.

In his ruling, Roof found legal and factual sufficiency for the charge that Lindquist abused his authority by “engaging in a vindictive prosecution of a Pierce County woman; withholding evidence, and obstructing justice.”

The Pierce County woman is former Longbranch resident Lynn Dalsing, charged with sex crimes in 2010 and 2014 by county prosecutors, and accused of molesting her 7-year-old daughter.

Those charges have been dismissed twice, most recently in March by Superior Court Judge Edmund Murphy, who threw out charges of child rape against Dalsing due to prosecutorial vindictiveness. Prosecutors have appealed that decision.

Vindictive prosecution was one of 12 charges leveled against Lindquist in the recall petition. Roof’s ruling rejected the other 11 charges.

The finding triggers a possible appeal by Lindquist to the state Supreme Court, which would have the final word. Lindquist isn’t saying what he’ll do.

Asked for comment Friday, Lindquist replied with an emailed statement:

“Our office charged Lynn Dalsing for one reason only — evidence showed she assisted in the crimes of Child Rape, Molestation and Sexual Exploitation. Judges repeatedly found probable cause for the filing of these charges.

“I’m confident the people of Pierce County will support our efforts to pursue justice for the young victims and for our community.”

Jeff Helsdon, attorney for recall proponent Cheryl Iseberg, replied with a statement of his own, noting that charges against Dalsing were dismissed:

“Mr. Lindquist continues to trot out the false statement that he stacked new charges on Lynn Dalsing because there was new evidence. Unfortunately for Mr. Lindquist, two judges saw things very differently.

“Judge Murphy held that the second criminal case against Lynn Dalsing was the product of a vindictive prosecution, and he dismissed the case. Judge Roof has now found factual and legal sufficiency for the charge that Mr. Lindquist abused his authority.”

The original case against Dalsing is a complicated affair that has spilled into courtrooms in three counties over the past five years, as well as the state court of appeals, the state Supreme Court and federal court.

The News Tribune has covered the case at length. It’s also a key element in multiple whistleblower complaints and a state bar complaint against Lindquist and his staff members; all those actions are ongoing.

The Dalsing case began in 2010, after Pierce prosecutors filed charges of child rape against Dalsing’s husband, Michael Dalsing, who was convicted of raping the couple’s child and two of her young friends.

Prosecutors filed a related child molestation charge against Lynn Dalsing — but it was based on a pornographic photo later proved to have nothing to do with her. She spent seven months in jail before the case was dismissed in July 2011.

Lynn Dalsing subsequently sued the county for false arrest and malicious prosecution.

In the course of that suit, filed in King County, she began to win discovery rulings, gaining access to internal records that buttressed her arguments. They included emails between a sheriff’s deputy and deputy prosecutors that discussed the key photo.

Around the same time, Pierce prosecutors opened a new investigation of Dalsing, alleging she knew of her husband’s criminal acts and aided him in their commission. In 2013, county prosecutors forwarded that investigation to the Snohomish County Prosecutor’s office, citing the appearance of a conflict of interest.

Snohomish prosecutors subsequently declined to file new charges against Lynn Dalsing, saying the information gathered in the new investigation wasn’t new.

The next moment in the investigative process was the key to the later finding of vindictiveness, as well as Friday’s ruling on the recall.

After Snohomish prosecutors declined to file charges in 2013, Pierce prosecutors took charge of the case again and filed new charges of child rape against Lynn Dalsing in March 2014.

Deputy prosecuting attorney Jared Ausserer, one of Lindquist’s high-ranking deputies, filed the new charges.

Interviewed in 2014 by The News Tribune, Ausserer said Lindquist made the decision to proceed with the case. A year later, in a separate interview, Ausserer revised that statement, and said he made the decision to proceed.

Either way, the new criminal charges had the effect of halting discovery in Dalsing’s false-arrest lawsuit. Ultimately, Judge Murphy threw out the criminal case in 2015, citing, among other things, the back-and-forth between Pierce and Snohomish prosecutors.

Friday’s recall ruling from Judge Roof alludes to those actions. It addresses Lindquist’s argument that recall petitioners couldn’t prove he knew what his subordinates were doing. Like everything else tied to the Dalsing case, it’s complicated.

“Although Lindquist argues that many of the factual allegations pertaining to Charge 1 concern the actions of DPA’s, not Lindquist himself, and although it is correct that an official cannot be recalled for the acts of a subordinate done without the official’s knowledge or ability to direct, the facts alleged by Petitioner allow voters to draw reasonable inferences from those facts that Lindquist either knew of or directed the alleged conduct, thereby abusing his authority.”

While Roof dismissed the other 11 charges, which are tied to other alleged acts of misconduct by Lindquist, he found “factual sufficiency” for one of them: that Lindquist intimidated and retaliated against his staff for disagreeing with him.

The charge didn’t meet the other recall prong of “legal sufficiency,” because it didn’t rise to the level of malfeasance, Roof decided.

The recall ruling starts a new legal dance. Lindquist has 15 days to appeal it to the state Supreme Court. The News Tribune asked Lindquist whether he intends to appeal; he did not respond.

Nonetheless, recall proponents expect an appeal. If Lindquist pursues it, Helsdon said he would file a motion for expedited review by the high court.

He could also ask the court to reconsider the other recall charges, but that decision hasn’t been made.

The same cycle occurred in 2010, when then-County Assessor Dale Washam appealed a recall finding. The high court rejected Washam’s appeal; the process took about two and a half months.

The court could overturn Roof’s recall ruling — ending the recall effort — or uphold it, allowing Iseberg to begin collecting the 38,642 signatures required to bring a recall election to the ballot next year.

“Mr. Lindquist expresses confidence that the people of Pierce County will support him,” Helsdon said Friday. “Then he should put his money where his mouth is, and let the people decide in a recall election.

“His appeal will demonstrate that he doesn’t trust the people to support him after all.”

 
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