Crime

Mixed bag at Lindquist hearing; text message case continues

A Friday court hearing pitting Pierce County officials against each other in a long-running case involving Prosecutor Mark Lindquist’s personal phone records resembled a holiday gift exchange game:

Nobody got everything they wanted, but everybody got something they wanted.

The upshot: After a flurry of 27 court filings from eight attorneys over the past two days, the phone records case will continue. Thurston County Superior Court Judge Gary Tabor asked for more arguments from Lindquist and other parties at a hearing in January, yet to be scheduled.

County Executive Pat McCarthy wanted a pair of outside attorneys she selected to represent county taxpayers in the phone-records case. She wanted a finding that Lindquist is stuck in a conflict between his personal interests and the public interest.

Tabor declined to say whether Lindquist was conflicted, and he didn’t appoint McCarthy’s preferred attorneys. But he confirmed that a separate pair of independent attorneys could take charge of the case, and Lindquist and his staffers have to stay out of the fray.

Lindquist and his staffers wanted the phone-records case to end. Tabor refused to dismiss it, but he accepted the appointment of independent attorneys selected by Lindquist rather than McCarthy.

Sheriff’s Deputy Glenda Nissen wanted the text messages she’s been seeking for four years and an order finding Lindquist in contempt of court. She didn’t get the contempt order, but Tabor opened a legal door that allows Nissen to keep pushing for full disclosure of the text messages. That push could include an affidavit from Mary Robnett, one of Lindquist’s former high-ranking staffers.

As for a separate power struggle between McCarthy and the County Council, Tabor refused to touch it.

“I am not getting into the middle of the fight between the Pierce County executive and the Pierce County Council,” Tabor said. “I don't have to do that. I don’t see this as germane to my decision. (But) I’m just amazed at the lack of communication between one branch of government and another.”

I am not getting into the middle of the fight between the Pierce County executive and the Pierce County Council. I don’t have to do that. I don’t see this as germane to my decision. (But) I’m just amazed at the lack of communication between one branch of government and another.

Thurston County Superior Court Judge Gary Tabor

The phone-records case began in 2011, when Nissen sued the county for access to text messages from Lindquist’s personal phone. She believes the messages will prove he retaliated against her for political criticism. County taxpayers have shelled out $315,945 to defend the case, which culminated in an Aug. 27 ruling from the Washington State Supreme Court.

The high court ordered Lindquist to obtain copies of the messages, review them, determine if any were public records, and disclose those. Lindquist filed an affidavit Dec. 10, arguing that all the messages were private, including one he sent to Robnett, which he characterized as suggesting “a possible political strategy to deal with a news story.”

The story appeared in The News Tribune on Aug. 2, 2011. It described a settlement between Nissen and the prosecutor’s office. The settlement included a stipulation that Lindquist would not retaliate against Nissen.

Lindquist, using his phone, worked throughout the day to spin the wording of the story, according to public records. Nissen, believing the text messages would prove Lindquist was breaking the agreement, sued for access to them.

In the months since the Supreme Court decision, McCarthy and her staffers, including county risk manager Mark Maenhout, suggested that Lindquist faced a conflict of interest and urged him to hire outside attorneys. Initially, Lindquist refused. Ultimately, he relented, and appointed outside attorneys Michael Tardif and Jeffrey Freimund as special deputy prosecutors, while stating his willingness to remove his office from the case.

Friday’s hearing represented the culmination of the dispute. Lindquist did not appear. His personal attorney, Stewart Estes, who represents the prosecutor at no cost (pro bono) appeared for him.

“This has turned into a bucket of worms,” Tabor said, referring to the reams of briefs he’d received.

“This has turned into a bucket of worms,” Tabor said, referring to the reams of briefs he’d received.

Traces of concerns about legal independence were still on display. Tabor looked at deputy prosecutor Dan Hamilton, who has filed numerous briefs in the case supporting Lindquist’s arguments. Tabor wondered why he was in the courtroom, since other attorneys had been appointed to provide independent representation.

“I had a question as to why you’re representing Pierce County at all,” Tabor said.

Tabor said his chief concern was figuring out who represented the county. Would it be Jessie Harris and Hunter Abell, the attorneys McCarthy sought, or Tardif and Freimund, the attorneys selected by Lindquist?

After hearing from Harris, who argued that Lindquist was too conflicted to appoint anyone, Tabor made his first call in Lindquist’s favor. Harris and Abell were out. Tardif and Freimund were in.

“I don’t find that there’s been a sufficient showing that there’s absolutely a conflict,” Tabor said. “That may or may not develop in the future.”

The next motion came from Joan Mell, Nissen’s attorney, who argued for disclosure of the text messages and a private-in-camera review by the court. She questioned Lindquist’s assertion that the message to Robnett was exempt from disclosure. She noted that Robnett disagrees with Lindquist’s description of the text message and is willing to disclose it if she can obtain it.

“You have factual information that Mary Robnett is willing to disclose when Mark Lindquist is not,” Mell said.

Tabor said the time would come for that argument, but not yet.

Next came Tardif, who argued that the entire case should be dismissed and that Lindquist had met his disclosure obligations.

“The county's position is that we've gotten to the end,” Tardif said.

Tabor disagreed.

“I’m not today granting a motion for judgment or dismissing this action,” he said. “From the very beginning, one of the issues has been what’s private and what’s public. I think I do have the right to say I want more affidavits. And there’s a certain deputy prosecutor (Robnett) who has more things to say.”

“I'm not today granting a motion for judgment or dismissing this action,” Tabor said. “From the very beginning, one of the issues has been what's private and what's public. I think I do have the right to say I want more affidavits. And there’s a certain deputy prosecutor (Robnett) who has more things to say.”

That was how the hearing ended, with briefings to come. Tabor wouldn’t rule out the possibility of an in-camera review of the messages, one of Mell’s key goals.

Following the hearing, all parties declared victory. Lindquist, asked for a statement, did not respond. An emailed reply came from Hamilton, the deputy prosecutor.

“We are pleased the Court found there was no conflict and upheld our office’s appointment of special deputies Mike Tardif and Jeffrey Freimund,” Hamilton wrote.

McCarthy issued a separate statement, saying the court’s ruling vindicated her concerns about Lindquist’s conflict of interest.

“Despite my request that the Prosecutor’s Office assign independent counsel more than two months ago, the appointment of Mr. Tardif and Mr. Freimund came only after a motion was filed in Superior Court,” McCarthy said.

“It is clear the independent attorneys would not have been retained if I had not taken this action and waited for the chair of the County Council to show leadership. Although the judge did not appoint the attorneys I requested, I am pleased that outside legal representation has been judicially approved.

“However, the judge did say a conflict of interest ‘may or may not develop in the future’ regarding the two attorneys appointed as independent counsel. Today’s ruling is a victory for the people of Pierce County who value transparency and open government.”

Mell said Nissen was happy to see the judge “cut to the chase and lay out a plan for deciding the substantive issue: who gets to see the texts.” She noted that the judge was willing to look more deeply at Lindquist’s assertions about the text messages and praised McCarthy’s intervention.

“Her demonstrated leadership in protecting Pierce County is what matters,” Mell said. “The fact that she asked shows she’s looking out for everyone, not just herself.”

  Comments