By Jayson Jacoby
Baker City Herald
BAKER CITY, Ore. — A panel of three judges from the Oregon Court of Appeals has rejected the claim by a former Baker City firefighter that his statement criticizing the Baker City Council’s decision to end ambulance service in 2022 was protected by a state law and that the lawsuit filed against him should be dismissed.
Three councilors — Kerry McQuisten, Joanna Dixon and Johnny Waggoner Sr . — filed a civil lawsuit in October 2022 against Casey Husk, who worked as a firefighter for the city from 2020 to 2022.
(None of the three is still a city councilor.)
Each of the three plaintiffs is seeking $2,500 in damages from Husk, a total of $7,500.
The three councilors, represented by attorney Vance Day of Powell Butte, also named Debbie Henshaw of Baker City as a defendant in the same lawsuit.
The basis of the complaint is the councilors’ claim that Husk and Henshaw made false statements in 2022 as part of a campaign, which failed, to force a recall election for councilors. Both referred to the effects of the council’s decision on the fire department.
Husk was the chief petitioner in the recall effort, which was based on the councilors’ decision to cease having the city fire department operate ambulances.
Both Henshaw and Husk are represented by Portland attorney Chad A. Naso, who filed motions seeking to dismiss the lawsuit.
Both cited Oregon’s anti-SLAPP law in their motions.
SLAPP is an acronym for “Strategic Lawsuit Against Public Participation” — lawsuits that allegedly are intended to intimidate people from speaking publicly about certain issues.
In February 2023 , Judge Lung S. Hung granted Henshaw’s motion to dismiss the lawsuit against her.
The judge declined to dismiss the suit against Husk.
The plaintiffs appealed the judge’s ruling regarding Henshaw.
Husk appealed the judge’s denial of his motion.
On Oct. 15, 2024, a three-judge panel — Robyn Aoyagi, James Egan and Jacqueline Kamins — heard oral arguments in both Husk’s and Henshaw’s appeals.
On Nov. 6, 2024, the panel affirmed Judge Hung’s decision to dismiss the lawsuit against Henshaw. The judges didn’t issue a written opinion.
Hung, in addition to dismissing the suit against Henshaw, ordered the plaintiffs to pay her $11,141 in attorney fees and other costs.
The appeals court panel issued its ruling on Husk’s appeal on Wednesday, Jan. 29.
The panel’s decision is not a ruling on the merits of the lawsuit, which continues and could potentially go to trial.
The judges only concluded that Judge Hung was correct in denying Husk’s motion, under the anti-SLAPP law, to dismiss the lawsuit.
The plaintiffs applauded the court’s denial of Husk’s appeal.
“It’s unfortunate that the secondary defendant, Debbie Henshaw, was dismissed from the case, but I’m pleased with this victory and have no doubt we’ll win should this go to trial,” McQuisten said.
“Both the Baker County Circuit Court (where Judge Hung presided over the case in 2023), and the Court of Appeals got it right: the law doesn’t allow someone to knowingly make and publish false statements about an important public matter,” Dixon said. “Casey Husk did just that, all in an attempt to scare people into voting for his doomed recall petition. The residents of Baker City didn’t fall for that ruse, and thankfully, neither did the court system.”
“I hope and pray this gives some closure. I know, many will never find that in any decision made,” Waggoner said.
Husk said on Wednesday that he had not talked with his attorney and would have a comment later.
Day, the plaintiffs’ attorney, said they will continue to pursue financial damages against Husk.
“This case will now head back to the Baker County Circuit Court , to the community where Casey Husk’s false statements caused a great deal of fear and concern, all in an attempt to gin up support for his recall petition,” Day said. “We are confident that the trial will end up with the same result reached by Judge Hung and by the Oregon Court of Appeals : the law does not allow a person to make false statements and get away with it.”
Husk’s statement
The basis for the lawsuit was a statement that Husk published in the petition he filed seeking to force a recall election for the city councilors.
Husk wrote, in part, that councilors “had directly sanctioned the dissolution of the professional fire department in Baker City, destroying the network of public safety that has been in place for more than 100 years.”
The plaintiffs argued that the statement is false, and that Husk knew it was false when he published it.
In their ruling, the appeals court judges wrote that Husk argued that his statement was not false because by dissolution he meant not the end of the fire department — which continues to operate, albeit primarily dealing with fires, not ambulance calls — but that it had fewer functions and fewer employees.
“We are unpersuaded,” the judges wrote. “The definitions of ‘dissolution’ applicable to an entity or organization all incorporate the idea that the entity or organization ceases to exist as a result of the dissolution. Here, the Baker City Fire Department no longer provides a service that it used to provide — ambulance service — but it continues to exist and cannot be said to have ‘dissolved’ under any commonly recognized meaning of that word.”
The judges noted that the recall petition did not mention that despite the cessation of ambulance service, the Baker City Fire Department would continue to fight fires.
“Without that information, the statement that plaintiffs ‘directly sanctioned the dissolution of the professional fire department in Baker City’ is much more attention grabbing — and can only be understood to mean what it says,” the judges wrote in their decision denying Husk’s appeal.
The judges also rejected Husk’s argument that his statement, if it can’t be viewed as factually accurate, should be taken as opinion.
“Again, we are unpersuaded,” the judges wrote.
They cited a previous case that is used as a test for determining whether a statement could reasonably be viewed as opinion rather than a statement of objective fact.
One of the factors is whether the person “used figurative or hyperbolic language that negates that impression” that the statement is objective fact.
The judges wrote that nothing about Husk’s statement in the recall petition negates the impression that he was stating an objective fact rather than an opinion.
The judges also rejected Husk’s contention that when he made the statement about the dissolution of the fire department, he believed that it was accurate at the time, and thus that he fulfilled the requirements of Oregon election law.
The plaintiffs don’t have to prove that Husk “acted knowingly or recklessly in making a false statement,” the judges wrote.
The judges wrote in their ruling that “The record supports a reasonable inference that he knew that the city council did not vote to dissolve the fire department.”
As a firefighter, Husk should have known that the council, in voting to cease ambulance service, was not actually dissolving the fire department, the judges concluded.
McQuisten, who was mayor in 2022 when the council voted to cease ambulance service, said that “during the City Council meeting when Casey Husk threatened to file recall paperwork, he said his motivation was to give me a political ‘black eye.’ When he published those lies on state forms (for the recall campaign), we were left with only one avenue per Oregon statute for clearing our names: filing an action in court. We have never asked for much in the way of a financial award — mostly for Husk to publicly retract what was clearly a targeted smear campaign.”
McQuisten said she believes that Husk’s contention about the “dissolution” of the fire department unnecessarily frightened some city residents.
“The false claims in Husk’s (recall) filings had elderly citizens believing no one would respond if they had a medical emergency or a fire,” McQuisten said. “They were scared that their lives were in danger. That Casey Husk instilled this kind of fear in the community and made some citizens believe I had made decisions as mayor that I had not, was wicked in my opinion.”
Henshaw’s statement
In the lawsuit against Henshaw, the plaintiffs cited a comment that Henshaw wrote on Facebook in response to a question from a resident about why Husk and other proponents, including Henshaw, were trying to force a recall election for the councilors in 2022.
The plaintiffs claimed that Henshaw’s comment, like Husk’s statement on the recall petition, contained “a false statement of material fact,” and thus violated Oregon election laws.
Henshaw’s comment reads, in part: “In a tiny nutshell, our city council and mayor allowed our city manager to dissolve our city ran gold-standard fire department and ambulance service. We no longer have enough firefighters on shift to enter a burning building, and instead of the excellently dually trained EMT/Firefighters, we now have an ambulance service who’s (sic) staff rotates out. ...”
Naso argued in his motion to dismiss the suit that Henshaw’s comment was not false.
Judge Hung agreed. In his February 2023 ruling dismissing the complaint against Henshaw, Hung wrote that “plaintiffs have not provided substantial evidence that defendant Henshaw made a false statement.”
Henshaw’s and Husk’s comments were similar in the sense that Henshaw wrote “dissolve,” and Husk wrote “dissolution” in regard to the fire department.
In his analysis of Henshaw’s Facebook comment, the judge noted that although Henshaw’s use of the word “dissolve” could be construed as a claim that the city had closed the fire department altogether — which is not true — the statement, when read as a whole, can be interpreted as meaning “that the entities continue and are not terminated entirely.”
“Since the court found defendant Henshaw’s statements were not false, the court further finds she did not knowingly or with reckless disregard make a false statement,” the judge wrote in his 2023 ruling.
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