A three-judge panel from the Oregon Court of Appeals has affirmed a circuit court judge’s decision to dismiss the lawsuit that three former Baker City Council members filed against Debbie Henshaw of Baker City two years ago.

The plaintiffs — Kerry McQuisten, Joanna Dixon and Johnny Waggoner Sr. — contended that Henshaw made false statements as part of a campaign seeking to remove the three as city councilors in 2022 following the council’s decision to end ambulance service through the city fire department.

That recall effort failed, as the proponents didn’t submit the required 680 signatures from registered city voters in time to force a recall election.

The plaintiffs, none of whom is a councilor now, filed the lawsuit in October 2022.

There were two defendants — Henshaw and Casey Husk, a former Baker City firefighter and paramedic who started the campaign to recall the city councilors due to their decision to curtail ambulance service.

Each of the three plaintiffs sought $5,000 in damages — $2,500 each from Husk and Henshaw — for a total of $15,000.

In February 2023, Judge Lung S. Hung granted Henshaw’s motion to dismiss the complaint against her. She is represented by Chad A. Naso of Portland.

Vance Day of Powell Butte is the plaintiffs’ attorney.

The judge denied to do the same for Husk.

Husk appealed that decision, and attorneys made oral arguments before a Court of Appeals panel in October. The judges have not issued a decision on Husk’s appeal.

The plaintiffs appealed Hung’s decision dismissing the lawsuit against Henshaw and ordering the plaintiffs to pay her $11,141 in attorney fees and other costs.

Attorneys argued that appeal on Oct. 15.

The same trio of judges heard both the Henshaw and Husk cases — Robyn Aoyagi, James Egan and Jacqueline Kamins.

On Wednesday, Nov. 6, the panel affirmed Judge Hung’s decision on Henshaw’s case. They did so without issuing a written opinion.

Henshaw said her attorney, Naso, notified her on Wednesday that the appeals court panel had affirmed the 2023 ruling.

Henshaw said she was surprised not by the result but by the timing.

She said Naso had told her the appeals court likely wouldn’t issue a ruling for several months.

Henshaw said that although she’s pleased that the court has ordered the plaintiffs to pay her attorney fees — which total about $70,000 — the issue for her is not about money.

Rather, Henshaw said she wanted a legal opinion protecting her right to comment about important public issues such as the Baker City ambulances.

Henshaw and Husk opposed the city council’s decision in 2022.

Henshaw said on Wednesday that she continues to believe that was a bad decision. During 2022 and 2023, more than half of the city’s firefighters quit, some citing the loss of ambulance service.

The Baker County Board of Commissioners, who by law are responsible for choosing ambulance providers, hired Metro West (now operating under the name Pioneer), a private company, to operate ambulances in the Baker Ambulance Service Area, which includes Baker City and much of Baker County.

“The whole situation is just so wrong,” Henshaw said on Wednesday. “It isn’t what our community wanted, and I wasn’t going to back down from that. My community is important to me.”

The Herald has requested comments from Day, McQuisten and Waggoner.

The lawsuit

The plaintiffs cited a comment that Henshaw wrote on Facebook in response to a question from a resident about why proponents were trying to force a recall election for the councilors.

The plaintiffs claimed that Henshaw’s comment contained “a false statement of material fact,” and thus violated Oregon election laws.

The 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 filed a motion seeking to dismiss the complaint against Henshaw under Oregon’s anti-SLAPP law.

SLAPP is an acronym for “Strategic Lawsuit Against Public Participation” — lawsuits that allegedly are intended to intimidate people from speaking publicly about certain issues.

Naso argued that Henshaw’s comment was not false.

Judge Hung agreed. In his 2023 ruling dismissing the complaint against Henshaw, Hung wrote that “plaintiffs have not provided substantial evidence that defendant Henshaw made a false statement.”

In his analysis of the 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 February ruling.

The judge came to a different conclusion, though, with regard to the statements Husk made in the recall petitions he filed.

Ultimately, Hung concluded that “although the court is not willing to find that plaintiff has presented enough evidence to prove defendant Husk knowingly made a false statement, there is certainly a genuine issue of material fact whether he did.”

That’s the legal standard of whether a plaintiff’s complaint should continue, potentially going to trial.

The appeals

Day, the plaintiffs’ attorney, appealed Judge Hung’s decision to dismiss the complaint against Henshaw.

In an April 2024 brief, Day argued that Hung should have ruled that Henshaw’s comment that there aren’t enough firefighters on shift to enter a burning building is “verifiably false” and that the appeals court should reverse Hung’s ruling.

Day cited statements from Sean Lee, former Baker City fire chief, and former Baker City Manager Jonathan Cannon, that the fire department, even after ending ambulance service and reducing the number of firefighters, did have enough firefighters available to meet the usual standard of four — two to enter a burning building and two to remain outside.

Naso, Henshaw’s lawyer, responded to Day’s brief in May 2024. Naso wrote that the plaintiffs were trying to “salvage their claim by contending that (Judge Hung) erred by not separately analyzing and ruling on the falsity of a single clause embedded within the three-sentence statement that forms the basis of their sole claim against Ms. Henshaw.”

Naso argued that Henshaw didn’t claim that the fire department didn’t have enough firefighters on staff to meet the standard for entering a burning building. Rather, Henshaw was pointing out that the department no longer had at least four firefighters on duty — “on shift” is how Henshaw put it in her Facebook comment.

Naso argued that her comment was “a correct statement of fact” because the city, to meet the four-firefighter minimum, would have had to call in off-duty firefighters.

Day replied to Naso’s brief in June 2024, reiterating his argument that Henshaw’s Facebook comment “cannot reasonably be interpreted in a manner that makes it factually correct.”

The attorneys made similar arguments during the Oct. 15 hearing before the appeals court judges.

Henshaw said on Wednesday that when she wrote the Facebook comment in 2022 she was not trying to claim that the fire department could never meet the requirement of four firefighters required to enter a building.

Her point, she said, was that because the department, which had reduced its workforce after ending ambulance service, no longer had four or more firefighters at the fire station at the same time.