A Thurston County court again issues an adverse ruling against Prosecuting Attorney Mark Lindquist and his battle over whether texts on his private phone are public records.
A long-running case involving text messages on Pierce County Prosecutor Mark Lindquist’s personal phone has brought another adverse ruling for the county.
Thurston County Superior Court Judge Christopher Lanese ruled that nine of 17 text messages on Lindquist’s phone are public records, setting the stage for disclosure and a possible payout of legal fines and attorney fees.
Over the past six years, Pierce County has spent $623,441 on the case, much of it paid to outside attorneys hired to argue against disclosure.
On Friday, Lanese walked through a list of text messages line by line, delivering his assessment of a batch he examined in a private review.
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“Lindquist prepared outgoing text messages within the scope of his employment,” Lanese said.
The exact wording of the text messages sent during one week in 2011 remains unclear, but they involve conversations between Lindquist and other unidentified county employees.
Topics include rumors of possible job applicants and related jokes. Other messages appear to involve discussions of letters written to the editorial page of The News Tribune, and references to online comments on news stories.
Lanese noted that such messages, even if intended as humor, still related to the conduct of Lindquist’s office. He ordered the private review of the messages in December over the county’s objections, after finding that two affidavits submitted by Lindquist regarding the messages didn’t provide sufficient information.
Glenda Nissen, a former county sheriff’s deputy who has been seeking the text messages for the last six years, said Friday’s ruling represented relief and vindication.
“It means the world,” she said. “It means that I was right. It gives me my credibility, and that’s a powerful thing.”
The News Tribune sought comment from Lindquist on Friday. He referred questions to attorney Stewart Estes, who has represented his interests in the case at no cost for several years.
Estes provided this statement:
“From hundreds of private records the plaintiff requested, the judge found nine to be public. We respectfully disagree. No government business was conducted with any of these messages.
“This case was always about protecting the safety and privacy of all public employees, including deputy prosecutors, police, firefighters, teachers, and others who serve the public.
“Public servants and the people who contact them should not have to give up all their privacy rights. They are entitled to those rights just like the rest of us.”
Nissen contends Lindquist tried to sabotage her career after she publicly opposed his first campaign for public office in 2010. Apart from the fallout over text messages, public records show that the prosecutor’s office attempted to restrict her case assignments, shunned her, and refused to use evidence she gathered in sexual- assault cases involving child victims.
Nissen won the first phase of the text-message case in 2015, following an argument that stretched to the Washington State Supreme Court and back. Lindquist and lawyers for the county opposed disclosure, arguing that messages created on his private phone were exempt from disclosure.
The high court disagreed, ruling that records held on private devices can be public if they relate to public business.
A subsequent lower-court ruling found that a text message Lindquist sent to a subordinate, urging comment on a News Tribune story involving Nissen, qualified as a public record. That ruling led to a $128,000 award of fines and fees against the county in 2016.
The current case, known in legal shorthand as “Nissen II,” represents the second phase of the same argument. It relates to a larger batch of text messages sent over a week in 2011.
Friday’s ruling sets the stage for a status conference before Lanese on March 2. He indicated he would order the text messages disclosed on that date, barring an appeal from the county.
Attorney Michael Tardif, representing the county, said he needed time to consult with County Council members before he could say whether an appeal will follow.
Ultimately, the decision rests with County Council members, who will meet with Tardif in a private executive session in the coming days to discuss their options. The decision to pursue an appeal might require a public vote.
The council asserted its control over the case in late 2015, after questions emerged about possible conflicts of interest, and whether Lindquist could represent himself and the county’s legal interests at the same time. The answer was no, which led to Tardif’s appointment.
Throughout the life of the case, the county has shouldered the burden of legal fees, as well as fines and payouts.
The legal loss in 2016 involved one text message. The current argument involves nine, which have been withheld for five years. Penalties for nondisclosure in public-records cases can reach a maximum of $100 a day.
The News Tribune sought comment from County Council members Friday, including Councilwoman Pam Roach, who joined the council in 2017 and had no role in earlier legal decisions. Roach said she couldn’t say how she would vote on a possible appeal, but she was leery of the money already spent.
“I believe in open government,” she said.