Pierce County has spent more than $1 million to defend a text-message case involving the county prosecutor. A judge’s latest remarks were plain: “Mark Lindquist did not comply with the Public Records Act” and his attitude wasn’t helping matters.
The long-running saga of Pierce County Prosecutor Mark Lindquist’s text messages continues with a new bill for taxpayers: approximately $349,000.
The ruling came from Thurston County Superior Court Judge Chris Lanese, who penalized the county for withholding nine text messages that dated to 2011.
“Mark Lindquist did not comply with the Public Records Act,” Lanese said Friday, as he walked through his legal reasoning.
The fines for nondisclosure totaled $165,961. Lanese also awarded roughly $178,000 in attorney fees to former sheriff’s deputy Glenda Nissen, who first sought disclosure of the messages in 2012. Attorneys after the hearing were still working out exact figures related to roughly $4,000 in minor costs.
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Combined with earlier costs associated with Nissen’s lawsuit, the county has spent more than $1 million to defend the text-message case, including $510,829 paid to outside attorneys and a prior $128,000 payout to Nissen for nondisclosure of another text message.
The nine messages in question came from Lindquist’s private phone. Nissen sued for access to them, believing they would prove her claim that he retaliated against her for opposing him politically.
Some of the messages related to online comments posted anonymously by Lindquist’s subordinates on a 2011 News Tribune story about Nissen. Others referred to a local defense attorney, Andrew Morrison, who had sought a job at the prosecutor’s office. One message, not written by Lindquist but sent to him, referred to Morrison as “an evil Harry Potter.”
Lindquist released redacted versions of those messages in mid-February on the prosecutor’s office Facebook page. He called the messages “trivial” and “insignificant,” contending they weren’t related to government business.
Lindquist did not attend Friday’s hearing, in keeping with his standard practice throughout the six-year life of the case. Instead, outside attorney Mike Tardif represented the county. Fircrest attorney Joan Mell represented Nissen.
Mell argued that the penalty needed to be “a significant number” to send a clear message regarding the obligation of disclosure and to push back against the county and Lindquist’s stiff resistance.
Tardif argued the county shouldn’t be penalized at all.
“The county did what it was supposed to do,” he said, referring to a process created by the Washington State Supreme Court in 2015 in an earlier ruling on the Nissen case.
The high court ruled against the county and Lindquist, unanimously rejecting arguments that state public-records law didn’t apply to private devices. The ruling set up a process for examining records held on private devices, requiring Lindquist to submit an affidavit describing the records in order to determine whether they qualified as public records.
Lindquist submitted two such affidavits in the current case. In separate rulings last year and this year, Lanese found that both were insufficient. He referred to them again Friday, noting that Lindquist’s affidavits were “argumentative in nature.”
As he explained his ruling, Lanese suggested that penalties were justified, in part, by Lindquist’s attitude.
“The court doesn’t see much in terms of conduct or words to indicate that matters have improved,” he said. “There’s no privacy interest in public records. Public records belong to the public.”
Asked for comment, Lindquist did not respond directly. His spokesman, James Lynch, offered a statement that mirrored earlier statements from Lindquist about the case, including assertions contradicted by the state Supreme Court’s 2015 ruling.
“The county defended against this overreaching lawsuit when the plaintiff demanded ALL of Mark’s personal phone records and ALL of Mark’s personal text messages on his personal phone, including ALL of the messages of ALL who contacted him,” Lynch’s statement said. “The county prevailed at the Supreme Court on the constitutional principles and privacy interests at stake. Out of thousands of records the plaintiff sued for, they only received nine insignificant texts. This lawsuit could have been avoided if the plaintiff hadn’t demanded all of the personal phone records and personal text messages of Mark and all who contacted him.”
In 2015, the Supreme Court dismissed Lindquist’s contention that the lawsuit involved all records on his private phone.
“This case does not involve a public employer seizing an employee’s private cellphone to search for public records,” the high court’s ruling stated. “It does not involve a records request for every piece of data on a smartphone. And it does not involve a citizen suing a public employee for access to the employee’s phone.”
Asked what the prosecutor’s office has done in light of recent court rulings to ensure protection and segregation of public records on private devices, Lynch provided a second statement:
“As a result of the Supreme Court’s decision, which was the first case of its kind, Prosecutor Lindquist instituted a policy where office employees are required to forward to the civil division any text messages or emails on their personal phone or computer that directly relate to the conduct of government. These documents are retained as public records. Prosecutor Lindquist believes constitutional privacy rights are compatible with transparency and open government.”
After Friday’s ruling, Nissen stood outside the courtroom and dabbed her eyes.
“I’m just happy,” she said.
While the ruling seemingly ends the text-message case, the topic turned into instant campaign fodder late Friday. Mary Robnett, a former deputy prosecutor and Lindquist’s announced opponent in the pending race for the office, issued a statement in response to the judge’s findings.
“Unfortunately, it’s the taxpayers who will pay the costs for Mr. Lindquist’s arrogance,” Robnett said in part.