A text message written four years ago by Pierce County Prosecutor Mark Lindquist is a public record, despite Lindquist’s long-running claims to the contrary, a Thurston County judge ruled Tuesday.
The decision by Superior Court Judge Gary Tabor is a loss for Lindquist and a victory for sheriff’s deputy Glenda Nissen, who sought access to the record for more than four years.
The judge’s ruling exposes the county to potential fines for withholding the record. Taxpayers have shelled out $325,000 to outside attorneys defending Lindquist’s position. A related request by Nissen seeks a slightly larger batch of text messages from the same period. That review remains to be conducted, but Tabor’s ruling Tuesday suggests more messages could come to light.
“The text sent by Mr. Lindquist at 23:51:47 hours (11:51 p.m.) is a public record in light of its content and the context of the subject matter in light of co-occurring events,” Tabor wrote. “This text should be turned over by Pierce County to Glenda Nissen pursuant to her public records request.”
Asked for comment, Lindquist said, “I went above and beyond the ruling of the Supreme Court, where we prevailed on key issues, and asked the trial court to review text messages from my personal phone. We can have open government and still respect constitutional privacy rights, which was always our goal.”
In a separate statement, Seattle attorney Stewart Estes, who has represented Lindquist at no cost throughout the four-year lawsuit, said Lindquist disagrees with Tabor’s ruling about the text message and raised the prospect of another appeal. A decision to appeal, not yet made, could lead to an internal confrontation with the County Council.
Nissen’s attorney, Joan Mell, called the ruling, “An important decision protecting the people of Pierce County. Unfortunately, the truth is unpleasant, but at least we are well-informed rather than misinformed.”
The key text message, written by Lindquist to a subordinate, said, “Tell allies to comment on TNT story.”
The story appeared in The News Tribune on Aug. 2, 2011. It involved a legal settlement between the county and Nissen, who believed Lindquist retaliated against her for political criticism. The settlement agreement included a promise to avoid further retaliation.
After publication of the story, Nissen sued for access to text messages on Lindquist’s private phone, believing they would prove he violated the non-retaliation clause.
Initially, Lindquist turned over portions of his phone bills, but not the text messages themselves. He subsequently argued any text messages on his private phone were by definition exempt from public disclosure.
The Washington State Supreme Court unanimously rejected the argument in August and ordered Lindquist to review the text messages and determine whether any met the definition of a public record.
Lindquist conducted the review in December and said the six messages on his phone had nothing to do with public business. He described the “Tell allies to comment” message as “political strategy to manage a news story.”
Lindquist subsequently agreed to allow the judge to conduct a private, in-camera review of the text messages. Tabor examined six messages sent Aug. 2 to then-Lakewood Police Chief Bret Farrar, sheriff’s spokesman Ed Troyer and Mary Robnett, then Lindquist’s chief criminal deputy in the prosecutor’s office. Robnett received the “Tell allies to comment” message.
Tabor found the other five messages weren’t public records, but the message to Robnett was.
Robnett didn’t comment on the news story, but others did, including deputy prosecutor Mike Sommerfeld, who posted anonymous comments under a pseudonym that disparaged Nissen and Mell, despite the legal agreement not to do so. Discovery of Sommerfeld’s comment, recently published by The News Tribune, led to Sommerfeld being relieved of his duties as legal adviser to county sheriff Paul Pastor.
WILL COUNTY PAY FOR MORE APPEALS?
In discussing a possible appeal, Estes said Lindquist disagreed with the judge’s ruling about the key message.
“While the ruling correctly concludes that five out of six messages were personal and private — as Mr. Lindquist has always maintained — the sixth message was also not a public record,” Estes said. “We are reviewing our options, which include an appeal, and asking Judge Tabor to consider other relevant information that he did not have before him in making this decision.”
However, another player in the case — the county — might have something to say about potential appeals.
Tuesday’s ruling plays out against a larger backdrop involving separation of powers. The county, which would be liable for fines or penalties associated with the text-message case, is represented by outside attorney Michael Tardif, who theoretically represents the taxpayers’ interests.
Tardif was appointed after a heated struggle in December between County Executive Pat McCarthy and the County Council. McCarthy asserted Lindquist was too personally conflicted in the text-message case to make legal decisions on behalf of taxpayers. The clash ended with a decision that Tardif would report to the council, which has asserted its authority over litigation decisions.
Tardif said Tuesday that he needed to examine the the judge’s ruling and discuss it with county leaders. Would he recommend an appeal?
“I’ll have to talk it over with the county,” he said. “It’s a little too early to tell.”
Council chairman Doug Richardson couldn’t say whether the county would be willing to spend additional public money on appeals.
“I’m waiting to talk to our attorney,” Richardson said. “My view right now is that the county has done everything that the court asked them to do.”
Councilman Derek Young, asked whether the council would support spending more public money for an appeal, voiced reluctance and suggested the county and Lindquist might disagree on next steps.
“I guess this is the point where our interests part company,” he said. “I don’t see any reason that the county would continue to be involved. Certainly I want to talk with our legal counsel to find out if there’s some reason we need to accrue additional time or cost. I would think that we would accept the judge’s ruling and move on.”