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Charleston public defender responds to lawsuit

Asks judge to dismiss complaint

By: Phillip Bantz//December 28, 2015//

Charleston public defender responds to lawsuit

Asks judge to dismiss complaint

By: Phillip Bantz//December 28, 2015//

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Charleston’s head public defender has responded to a federal lawsuit alleging that he fired his office’s chief litigator for publicly criticizing the city’s top prosecutor.

The public defender, Ashley Pennington, and his attorneys at Cleveland & Conley in Charleston raise 46 defenses in a Dec. 18 answer to Beattie Butler’s wrongful termination suit. They have asked U.S. Magistrate Judge Bristow Marchant to dismiss the complaint.

Butler, who was fired last fall while undergoing chemotherapy for rectal cancer, has accused Pennington of trying to muzzle public defender staff whenever they sought to report prosecutorial misconduct.

He argues that Pennington violated his free speech rights by restricting him from criticizing 9th Circuit Solicitor Scarlett Wilson and her assistant prosecutors. He also has brought a claim of employment discrimination against Pennington and Charleston County.

But the county contends that Butler was never its employee. Instead, the county, which also is represented by Cleveland & Conley, asserts that Butler was an employee of Pennington and the state.

Butler’s complaint includes several other actions for defamation, breach of contract, denial of due process and violations of the Family and Medical Leave Act.

One of Pennington’s attorneys, Caroline Cleveland, declined an interview request. But Pennington wrote in a November email that he has never tried to quash grievances about prosecutorial misconduct.

He also stated that Butler had a “tendency to air his sensationalized complaints in the media or by email rather than to the appropriate governing body,” which was “disruptive to the efficiency of the office and our ability to meet our mission.”

David Rothstein and Michael Corley of the Rothstein Law Firm in Greenville represent Butler. They also declined to discuss the case.

Pennington contends in response to the suit that Butler’s defamation claim is barred by self-publication, and that any statements he published about Butler “were true or substantially true.”

Pennington released a redacted copy of Butler’s termination letter to a reporter in Charleston who made a public records request for the document. He also issued a news release in late August in which he stated that the accusations that a “subordinate lawyer” had made against him were “utterly false.”

He made similar statements to the board of directors for the South Carolina Association of Criminal Defense Lawyers, according to Butler’s complaint. The suit alleges that Pennington, whiled addressing the board, “further accused [Butler] of manipulating SCACDL, an organization composed of [Butler’s] peers and colleagues in the legal profession, for the sake of advancing his personal agenda against Solicitor Wilson.”

Butler argues that Pennington’s statements are false, defamatory and made with “reckless disregard” to the truth, causing “lost earning capacity, embarrassment, humiliation, emotional distress, injury to reputation, and loss of enjoyment of life.”

He is seeking actual and punitive damages.

Pennington argues in response to the suit that there “is no causal nexus between any complaint or protected act by [Butler] and his discharge, nor was any protected speech the substantial or motivating factor in [Butler’s] discharge.”

Pennington also asserts that he is immune from liability because he was acting within the scope of his official duties and in good faith.

Discovery in the case is due by June 17 and mediation must occur by July 18, according to a recent scheduling order.

Follow Phillip Bantz on Twitter @SCLWBantz

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