STATE OF SOUTH CAROLINA

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IN THE COURT OF COMMON PLEAS
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COUNTY OF JASPER
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CIVIL ACTION NO: 2014-CP-27-00155
VASHTI K. WASHINGTON,
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Plaintif,
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ANSWER
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RANDY HORTON,
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COUNTERCLA':
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TO: JAMES H. MOSS, ESQUIRE, ATTORNEY FOR PLAINTIFF:
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Defendant Randy Horton, specifically reserving all rights pursuant to any
and all motions previously served, answering the Complaint of the Plaintif and
asserting a counterclaim, would allege unto this Honorable Court as follows:
FOR A FIRST DEFENSE
(Specific Denial)
1. That Defendant denies each and every allegation of Plaintif's Complaint
not specifically admitted hereinafter.
2. That, upon information and belief, Defendant admits the allegations
contained in Paragraph 1 of Plaintiff's Complaint.
3. That Defendant admits the allegations contained in Paragraph 2 of
Plaintif's Complaint.
4. That, upon information and belief, Defendant admits only so much of the
allegations contained in Paragraph 3 of Plaintif's Complaint as allege that
the Plaintif is the Superintendent of Education for the County of Jasper,
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5.
6.
7.
8.
9.
10.
State of South Carolina, and has been for a period of over three (3) years;
and that she has been certified by the State of South Carolina. Defendant
lacks sufficient knowledge or information with which to form a belief as to
the truth of the remaining allegations contained in said Paragraph and,
accordingly, demands strict proof thereof.
That Defendant denies the allegations contained in Paragraph 4 of
Plaintif's Complaint.
That Defendant denies the allegations contained in Paragraph 5 of
Plaintif's Complaint.
That Defendant denies the allegations contained in Paragraph 6 of
Plaintif's Complaint.
That Defendant denies the allegations contained in Paragraph 7 of
Plaintif's Complaint.
That Defendant denies the allegations contained in Paragraph 8 of
Plaintif's Complaint.
That Defendant denies the allegations contained in Paragraph 9 of
Plaintif's Complaint.
11. That Defendant lacks suficient knowledge or information with which to
form a belief as to the truth of the allegations contained in Paragraph 10 of
Plaintif's Complaint and, accordingly, denies the same and demands strict
proof thereof.
12. That Defendant denies the allegations as stated in Paragraph 11 of
Plaintif's Complaint.
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13. That Defendant lacks sufficient knowledge or information with which to
form a belief as to the truth of the allegations contained in Paragraph 12 of
Plaintiff's Complaint and, accordingly, denies the same and demands strict
proof thereof.
14. That Defendant denies the allegations contained in Paragraph 13 of
Plaintif's Complaint.
15. That Defendant lacks suficient knowledge or information with which to
form a belief as to the truth of the allegations contained in Paragraph 14 of
Plaintif's Complaint and, accordingly, demands strict proof thereof.
16. That Defendant denies the allegations contained in Paragraph 15 of
Plaintif's Complaint.
FOR A SECOND DEFENSE
17. That the allegations contained in Paragraphs 1 through 16 above, are
realleged and adopted the same as if repeated verbatim herein.
18. That Plaintiff's Complaint fails to state a claim upon which relief can be
granted against Defendant and, therefore, should be dismissed with
prejudice pursuant to Rule 12(b )(6) of the South Carolina Rules of Civil
Procedure.
FOR A THIRD DEFENSE
19. That the allegations contained in Paragraphs 1 through 16 above, are
realleged and adopted the same as if repeated verbatim herein.
20. That Plaintif's Complaint fails to state a claim upon which relief can be
granted because, inter alia, it fails to allege that the Defendant made any
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statements with "constitutional" or "actual malice," a First Amendment
Constitutional term of art and standard that is not defined as ill-will as
plead by the Plaintif and, therefore, causes the Plaintif's Complaint to fail
to state a claim for which relief can be granted. Rather, Plaintif pleads
common law malice and, therefore, the Complaint must be dismissed.
See Sanders v. Prince, 304 S. C. 236, 403 S. E.2d 640 ( 1991) (holding "[i]n
cases involving the defamation of a public oficial, the plaintiff must prove
that the defendant acted with constitutional actual malice, that is, with
knowledge that the statement was false or with reckless disregard of its
falsity . . . 'Instructions [on common law malice], which permit the jury to
impose liability on the basis of the defendant's hatred, spite, ill will, or
desire to injure are clearly impermissible. ' 'Ill will toward the plaintiff, or
bad motives, are not elements of the New York Times standard. ' (citing
New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726, 11
L.Ed.2d 686, 706 ( 1964)).
FOR A FOURTH DEFENSE
21. That the allegations contained in Paragraphs 1 through 20 above, are
realleged and adopted the same as if repeated verbatim herein.
22. That the Defendant specifically pleads the afirmative defense of truth and
because this involves First Amendment protections, Plaintif must prove
falsity.
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FOR A FIFTH DEFENSE
23. That the allegations contained in Paragraphs 1 through 22 above, are
realleged and adopted the same as if repeated verbatim herein.
24. That the Defendant is entitled to absolute and/or qualified and/or
conditional privilege for any and all speech made during the course and
scope of his duties as a citizen and Trustee of the Jasper County Board of
Education.
FOR A SIXTH DEFENSE
25. That the allegations contained in Paragraphs 1 through 24 above, are
realleged and adopted the same as if repeated verbatim herein.
26. That Defendant is entitled to the well-recognized privilege of "fair
comment. " Further, Defendant is entitled to the recognition of the privilege
of "public duty," whereby the law entitles a qualified or conditional privilege
to statements made in the discharge of a public duty to one who may act
in the public interest.
FOR A SEVENTH DEFENSE
27. That the allegations contained in Paragraphs 1 through 26 above, are
realleged and adopted the same as if repeated verbatim herein.
28. Plaintifs alleged injuries and damages may have been the result of an
independent, intervening, and superseding cause over which Defendant has
no control; further, that any alleged action or alleged omission on the part of
Defendant was not the proximate cause of the alleged damages.
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FOR AN EIGHTH DEFENSE
29. That the allegations contained in Paragraphs 1 through 28 above, are
realleged and adopted the same as if repeated verbatim herein.
30. That Plaintiffs alleged injuries, if any, may have been caused in whole or in
part by Plaintifs own comparative negligence, as may be proven through
discovery and/or at trial, and, therefore, Plaintiff's claim for damages should
be diminished proportionally and/or excluded according to South Carolina
law.
FOR A NINTH DEFENSE
31. That the allegations contained in Paragraphs 1 through 30 above, are
realleged and adopted the same as if repeated verbatim herein.
32. That any recover by Plaintif must be reduced or offset by amounts Plaintif
has received or will receive from others for the same injuries to Plaintiff
claimed in this lawsuit.
FOR A TENTH DEFENSE
33. That the allegations contained in Paragraphs 1 through 32 above, are
realleged and adopted the same as if repeated verbatim herein.
34. That Plaintiff's claims should be barred or reduced to the extent Plaintif
failed to mitigate her damages.
FOR AN ELEVENTH DEFENSE
35. That the allegations contained in Paragraphs 1 through 34 above, are
realleged and adopted the same as if repeated verbatim herein.
36. That Plaintifs claims are barred because the Defendant did not breach any
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legal duty owed to the Plaintif.
FOR A TWELFTH DEFENSE
37. That the allegations contained in Paragraphs 1 through 36 above, are
realleged and adopted the same as if repeated verbatim herein.
38. That Defendant hereby gives notice that he intends to rely upon such other
defenses as may become available or appear through discovery or
otherwise, or as may be raised by any other party, and hereby reserves the
right to amend this Answer to assert furher defenses.
COUNTERCLAIM
Defendant Randy Horton, by and through his undersigned counsel, Joshua S.
Whitley, hereby asserts the following counterclaim against Plaintiff Vashti
Washington for Causes of Action One through Two as set forh below:
39. That the Plaintif is a public ofcial and/or figure as the appointed
Superintendent of Education of Jasper County, South Carolina, and reports
to the Board of Trustees of Jasper County, South Carolina, a duly elected
board of nine Trustees elected by the citizens of Jasper County.
40. That the Defendant is a duly elected Trustee of the Board of Trustees of
Jasper County.
41. That it is the right and/or privilege of a duly elected Trustee to ask questions
of the Superintendent.
42. That the Board of Trustees must hire, supervise, evaluate, and even
terminate the Superintendent as the only entity responsible in that regard.
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43. That Plaintiff did file a lawsuit solely intended to harass the Defendant and/or
intimidate the Defendant as a critic of her actions as Superintendent of
Jasper County.
44. That upon information and belief, the State Department of Education only
reflects that Vashti Washington holds a Master's Degree plus 30.
45. That upon information and belief, Vashti Washington has never achieved
obtaining her full doctorate.
46. That upon information and belief, Vashti Washington applied to be
Superintendent and represented to the Defendant and other Trustees that
she held a doctorate degree.
47. That upon information and belief, Vashti Washington has continuously held
herself out as having a doctorate degree and continues to do so to the
present.
48. That upon information and belief, Vashti Washington filed this lawsuit
claiming she had a doctorate degree but knowing that to be false.
49. That at no time has Plaintif Vashti Washington presented true and accurate
credentials demonstrating she indeed has a doctorate.
50. That even if she has a doctorate, Defendant never made knowingly false
accusations regarding the same and is absolutely protected in his speech
under the First Amendment and New York Times v. Sullivan, 376 U.S. 254,
297-298 ( 1964) (holding "[t]he Court today announces a constitutional
standard which prohibits 'a public oficial from recovering damages for a
defamatory falsehood relating to his oficial conduct unless he proves that
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the statement was made with 'actual malice' -- that is, with knowledge that
it was false or with reckless disregard of whether it was false or not"') and
under the rights and privileges afforded elected officials in this state.
51. That Plaintif in her lawsuit likens malice to ill will, see Campi. 9 (stating
"[t]his, in addition to the other statements made by the Defendant,
demonstrate substantial malice and ill will toward this Plaintif"), and
clearly misunderstands an established fifty year precedent of the United
States Supreme Court that malice is not defined or synonymous to ill will
in the First Amendment context but rather "actual malice" is a term of art
and requires proof that the Defendant made the statement knowing it was
false or with reckless disregard to the same.
52. That the First Amendment protects school board members (and even non-
elected citizens) from critiquing a Superintendent or for holding an opinion
that the Superintendent should be fired, retained, demoted, or whatever
the criticism may be.
53. That the filing of this lawsuit on false or otherwise protected grounds is
meant to harass the Defendant and silence him as a critic - efectively
silencing the district of citizens for which he represents on the Board of
Trustees.
FIRST CAUSE OF ACTION
(Abuse of Process)
54. The Defendant incorporates by reference the allegations of Paragraphs 39
through 53 of the Counterclaim as fully as if repeated herein, as well as, the
Defenses asserted in Paragraphs 1 through 38 of his Answer.
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55. That the Plaintiff has employed a legal process - the filing of a civil action -
for some purpose other than which it was intended by law to effect - namely,
to silence a critic and duly elected official.
56. That although the mere filing of a complaint may not constitute abuse of
process, the filing of a knowingly false Complaint for unlawul purposes -
i.e., silencing a critic and retribution against a critic for the discharge of his
public duties - does constitute abuse of process.
57. That the Plaintiff has an ulterior purpose in the filing of this legal process
namely harassment, retribution, discrediting his reputation, or to silence the
Defendant.
58. That the filing of this process is a willful act by Plaintif not proper in the
regular conduct of the proceeding as the Plaintif is willfully, intentionally or
with reckless disregard using the process to make false allegations about
Defendant's medical condition that are neither necessary nor authorized by
the South Carolina Rules of Civil Procedure in asserting her claims against
Defendant.
59. Plaintif's willful acts of filing this process and improperly using the process
as described above are aimed at the illegitimate collateral objectives of
harassment, retribution, discrediting his reputation, and I or to silence the
Defendant.
60. That the Plaintiff's abuse of process has proximately caused damage to the
plaintif as a natural result of this wrong, including compensatory damages
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including, but not limited to, costs of attorney fees, mental anguish, loss of
time, and injury to property or financial standing.
61. That the Defendant is entitled to an award of punitive damages against the
Plaintiff.
SECOND CAUSE OF ACTION
(Defamation)
62. The Defendant incorporates by reference the allegations of Paragraphs 39
through 61 of the Counterclaim as fully as if repeated herein, as well as,
Paragraphs 1 through 38 of his Answer to Plaintif's Complaint as if fully
repeated herein.
63. That in the Plaintifs Complaint she states that, "the Defendant sufers from
some medical problems that do not enable him to logically conclude the truth
of many matters with which he is confronted. " This statement is libel per se.
64. That the Plaintifs allegation has a defamator meaning in that it tends to
impeach the Defendant's honesty, integrity, virtue, reputation, or publish the
natural or alleged defects, and subjects him to public contempt, hatred, and
ridicule and injures him in his ofice as a public oficial and as a private
business owner.
65. This statement is false because Defendant has never been diagnosed or
treated for a medical condition that does not allow him to logically conclude
the truth of many matters with which he is confronted.
66. The Defendant suffers from no medical problem that does not "enable him to
logically conclude the truth of many matters with which he is confronted."
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67. Plaintiff made this statement with actual malice because she made the
statement knowing it was false or with reckless disregard of its truth.
68. The Plaintiffs making of the statement regarding the Defendant's medical
condition was absolutely intended as defamation.
69. That the statement is false.
70. That the Plaintif made publication of the defamatory statement in this
lawsuit and, upon information and belief, in other venues to be determined in
discovery.
71. That the Plaintifs statement concerns the Defendant.
72. The statements are neither relevant nor pertinent to the claims assered in
Plaintifs Complaint.
73. That as a result of Plaintifs defamatory statements, the Defendant has
sufered presumed damages along with actual and special economic or
material loss and other damages including embarrassment, humiliation, and
mental sufering as a result of the Plaintifs defamatory statements.
Moreover, Defendant is entitled to punitive damages based on Plaintiffs
willful, reckless, and malicious statement.
WHEREFORE, having fully answered the Plaintiff's Complaint and
asserted the foregoing defenses, Defendant respectfully requests:
(1)
a trial by jury of twelve;
(2
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this Court to dismiss this matter with prejudice as to
Defendant and enter judgment in his favor and against
Plaintiff; and
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(3) the Defendant be awarded damages, compensatory,
presumed, punitive, and any other damages the Defendant is
entitled to under the law.
(4) this Court to award Defendant his costs and expenses,
including attorney's fees incurred in this matter and grant
whatever additional relief the Court deems appropriate.
WHEREFORE, the Defendant prays this Honorable Cour inquire into the
matters set forth herein, and enter its Order dismissing this matter, with an award
of attorneys fees and costs to the Defendant.
Beaufort, South Carolina
June 6, 2014
HOWELL, GIBSON & HUGHES, P.A.
Byu

2. - . . t -
David S. Black
Post Office Box 40
Beaufort, SC 29901
(843) 522-2400
DBiack@hghpa.com
-and-
SMYTH WHITLEY, LLC
Joshua S. Whitley, Esquire
Todd W. Smyth, Esquire
Claude 0. Tackett, Esquire
234 Seven Farms Drive
BB&T Plaza, Suite 215
Charleston, SC 29492
Phone: 843-606-5635
Fax: 843-654-4095
tsmyth@smythwh itley. com
jwhitley@smythwhitley.com
ctackett@smythwh it ley. com
Attoreys for Defendant Randy Horton
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