Waggoner v. Husk

No. 51 January 29, 2025 519

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Johnny WAGGONER, Sr.;

Joanna Dixon; and Kerry McQuisten,

Plaintiffs-Respondents,

v.

Casey L. HUSK,

Defendant-Appellant,

and

Debbie HENSHAW,

Defendant.

Baker County Circuit Court

22CV34538; A181038

Lung S. Hung, Judge.

Argued and submitted October 10, 2024.

Chad A. Naso argued the cause for appellant. Also on the

briefs was Markowitz Herbold PC.

Vance D. Day argued the cause and filed the brief for

respondents.

Before Aoyagi, Presiding Judge, Egan, Judge, and Kamins,

Judge.

AOYAGI, P. J.

Affirmed.

520 Waggoner v. Husk

Cite as 337 Or App 519 (2025) 521

AOYAGI, P. J.

Plaintiffs Johnny Waggoner, Sr., Joanna Dixon,

and Kerry McQuisten were city councilors for Baker City

in 2022. Defendant Casey Husk is a firefighter who was

employed by the Baker City Fire Department from 2020 to

July 2022. In 2022, the city council voted to stop providing

ambulance service through the fire department and instead

provide only fire suppression services. Defendant disagreed

with that decision. After the vote, defendant pursued recall

petitions against plaintiffs, in which he asserted that plain-

tiffs had “directly sanctioned the dissolution of the profes-

sional fire department in Baker City, destroying the network

of public safety that has been in place for more than 100

years.” Plaintiffs filed this action against defendant, alleg-

ing that the foregoing statement was false and thus violated

ORS 260.532, a provision of Oregon’s Corrupt Practices Act

(OCPA). Defendant moved to strike the complaint pursuant

to Oregon’s anti-SLAPP (Strategic Lawsuits Against Public

Participation) statute, ORS 31.150.1 The trial court denied

the motion, and defendant appeals. We affirm.

ANTI-SLAPP FRAMEWORK

“ORS 31.150 provides a mechanism for a defendant

to move to strike certain nonmeritorious claims predicated

on speech and petitioning activity potentially entitled to

constitutional protection.” Tokarski v. Wildfang, 313 Or App

19, 21, 496 P3d 22, rev den, 368 Or 788 (2021). The purpose

of ORS 31.150 is to “permit a defendant who is sued over cer-

tain actions taken in the public arena to have a questionable

case dismissed at an early stage, * * * before defendant is

subject to substantial expenses in defending against them.”

Mullen v. Meredith Corp., 271 Or App 698, 700, 353 P3d 598

(2015) (internal quotation marks omitted).

A special motion to strike under ORS 31.150 trig-

gers a two-step process. First, the defendant must establish

that the claim falls within the scope of protected activity

under ORS 31.150(2). If that is established, then, second,

“the burden shifts to the plaintiff in the action to establish

1

ORS 31.150 has been amended since the trial court ruled on defendant’s

motion. That amendment is immaterial to our analysis, but it changed the num-

bering of some subsections. All citations herein are to the current statute.

522 Waggoner v. Husk

that there is a probability that the plaintiff will prevail on

the claim by presenting substantial evidence to support

a prima facie case.” ORS 31.150(4). Substantial evidence

means “sufficient evidence from which a reasonable trier of

fact could find that the plaintiff met its burden of produc-

tion.” Wingard v. Oregon Family Council, Inc., 290 Or App

518, 523, 417 P3d 545, rev den, 363 Or 119 (2018) (internal

quotation marks omitted).

Plaintiffs face a “low bar” to defeat a special motion

to strike. Yes on 24-367 Committee v. Deaton, 276 Or App 347,

361, 367 P3d 937 (2016). If the plaintiff clears that bar, the

trial court must deny the motion and allow the claim to pro-

ceed. ORS 31.150(1). However, the court’s determination that

the plaintiff has established a probability of prevailing is rel-

evant only to the anti-SLAPP motion itself—neither the fact

nor substance of that determination is admissible in evidence

at any later stage of the case, ORS 31.150(6)(a), and the deter-

mination “does not affect the burden of proof or standard of

proof that is applied in the proceeding,” ORS 31.150(6)(b).

We review the grant or denial of an anti-SLAPP

motion for legal error. Davoodian v. Rivera, 327 Or App 197,

201, 535 P3d 309 (2023).

FACTS

We take the facts from the pleadings and affidavits

submitted to the trial court. ORS 31.150(5). We view the evi-

dence in the light most favorable to plaintiff. Handy v. Lane

County, 360 Or 605, 608 n 1, 385 P3d 1016 (2016).

Defendant worked for the Baker City Fire

Department from 2020 to July 2022. During that time, the

fire department employed 15 professional firefighters, all of

whom were also certified emergency medical technicians. In

addition to firefighting, the department provided ambulance

service in Baker City and a significant portion of Baker

County. Demand for ambulance service had increased

over time and, in 2021, accounted for 84 percent of the fire

department’s calls.

In March 2022, during a city council meeting,

Baker City’s city manager recommended that the city

Cite as 337 Or App 519 (2025) 523

stop providing ambulance service through its fire depart-

ment and instead let the county provide that service, as it

is legally required to do. The city manager explained that

providing ambulance service was costly and that “shortfalls

between the cost of service and the revenues collected from

the service * * * could approach a million dollars a year in the

very near future.” City taxpayers would have to cover any

shortfall, because the fire department receives most of its

funding from the city’s general fund. Defendant opposed the

proposed change to fire department services and voiced his

opposition at city council meetings. The city council voted in

favor of the change in April 2022. The fire department was

to stop providing ambulance service at the end of September

2022 and, relatedly, reduce the number of firefighters from

15 to nine. Defendant left the department in July 2022.

In September 2022, defendant filed with the city

elections office six prospective petitions to recall six of the

seven city councilors, including plaintiffs. He used the pro-

spective petition recall form, SEL 350, which includes a

“Statement” section with the instruction, “Provide the rea-

sons for demanding recall in 200 words or less. Any factual

information provided must be true.” In that section, as to

Waggoner, defendant stated in full:

“During the Spring of 2022, Councilor Johnny Waggoner

Sr. partook in the destruction of public safety in Baker

City. He voted to send notice to Baker County that the city

would no longer provide ambulance service. When Dean

Guyer made a motion to disregard overwhelming public

opposition several weeks later, Waggoner voted in support.

Waggoner’s consistent disregard for public input and lack

of leadership have shown that he is unfit for the office he

holds.

“It is not our intent to denigrate Waggoner’s character,

rather we are here to hold him accountable for his errant

actions in governance. It is the responsibility of the pol-

itician to heed the desires and interests of his citizens:

serving in American representative government dictates

as much. Waggoner has not followed those guiding princi-

ples and shown time and again an unwillingness to heed

public input. Furthermore, he has directly sanctioned the

dissolution of the professional fire department in Baker City,

destroying the network of public safety that has been in place

524 Waggoner v. Husk

for more than 100 years. The consequences of this action

must be the termination of his public service as he put

personal gain, fear, or incompetence above the safety and

interest of the people.”

(Emphasis added.)

Defendant provided materially identical statements

as to plaintiffs Dixon and McQuisten. At the bottom of each

form, defendant signed below the statement, “By signing

this document, I hereby state that any factual information

(not a matter of opinion) in the above statement is true.”

Based on his filings, the city elections office approved

defendant circulating recall petitions containing identical

language to the statements in his filings. Defendant pro-

ceeded to gather signatures to support a recall election of

plaintiffs.

In October 2022, plaintiffs filed this action. They

allege that defendant violated the OCPA, specifically ORS

260.532, by publishing false information in his SEL-350

filings and the recall petitions, specifically that plaintiffs

“ha[d] 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.”

Plaintiffs allege that statement is false and that defendant

knew it was false when he published it.

Defendant filed a special motion to strike plaintiffs’

claims under ORS 31.150. After hearing argument, the trial

court denied the motion. It concluded that a reasonable trier

of fact could find that the statement that plaintiffs “ha[d]

directly sanctioned the dissolution of the professional fire

department in Baker City” was a false statement of objective

fact that defendant knew was false when he published it,

allowing the claim to proceed. The court explained, “When

you dissolve a fire department, unless other contexts exist,

there is no way to understand it, except the fire department

has been terminated or ceased to exist.” Further, the record

was “clear” that defendant “knew the fire department did

not dissolve.” At the same time, the court concluded that

the attached participial phrase “destroying the network

of public safety that has been in place for more than 100

Cite as 337 Or App 519 (2025) 525

years” was nonactionable opinion, given the hyperbolic use

of “destroying.”

ANALYSIS

On appeal, defendant challenges the denial of his

anti-SLAPP motion. It is undisputed that defendant’s con-

duct is protected activity under ORS 31.150(2). The sole issue

on appeal is whether plaintiffs presented a prima facie case

that defendant violated ORS 260.532(1), which provides:

“No person shall cause to be written, printed, pub-

lished, posted, communicated or circulated, including by

electronic or telephonic means, any letter, circular, bill,

placard, poster, photograph or other publication, or cause

any advertisement to be placed in a publication, or sin-

gly or with others pay for any advertisement or circulate

an advertisement by electronic or telephonic means, with

knowledge or with reckless disregard that the letter, circu-

lar, bill, placard, poster, photograph, publication or adver-

tisement contains a false statement of material fact relat-

ing to any candidate, political committee or measure.”

A prima facie showing under ORS 260.532 requires

evidence that defendant (1) published (2) a false statement

(3) of a material fact (4) with knowledge or reckless disregard

that it was false. ORS 260.532; Bryant v. Recall for Lowell’s

Future Committee, 286 Or App 691, 698, 400 P3d 980 (2017).

In assessing whether plaintiffs met their burden, we do not

weigh the evidence to determine whether they are likely to

prevail at trial; we consider only whether they put forth sub-

stantial evidence for their claim. Young v. Davis, 259 Or App

497, 509, 314 P3d 350 (2013).

Defendant argues that plaintiffs failed to carry

their burden on the second element (falsity)—for either

of two reasons—as well as on the fourth element (mental

state). Plaintiffs disagree. We consider each of defendant’s

arguments in turn.

As to the falsity element, defendant first argues that

his statement that plaintiffs “directly sanctioned the disso-

lution of the professional fire department in Baker City” “can

reasonably be inferred to be a correct statement of fact.” A

statement is not “false” for purposes of ORS 260.532 if “any

526 Waggoner v. Husk

reasonable inference can be drawn from the evidence that

the statement is factually correct.” Yes on 24-367 Committee,

276 Or App at 355 (internal quotation marks omitted). In

other words, an “ambiguous statement” that may be true

or false, depending on how one resolves the ambiguity, is

not actionable. Bryant, 286 Or App at 699; see also Yes on

24-367 Committee, 276 Or App at 353 (“[T]he mere possibil-

ity of an inference of falsity does not confer a right of action

under ORS 260.532 if the evidence may also give rise to a

reasonable inference of correct fact * * *.” (Internal quotation

marks omitted.)).

Defendant’s argument that his statement regarding

dissolution of the fire department can reasonably be inferred

to be a correct statement of fact turns on the meaning of

“dissolution,” so we begin with some representative defini-

tions. The dictionary that we cite most frequently, Webster’s

Third New Int’l Dictionary 657 (unabridged ed 2002), defines

“dissolution” to mean:

“1 : the act or the process of dissolving or breaking up:

as a : separation into components parts <the [dissolution] of

the phenome into simultaneous distinctive features—John

Lotz> b : disintegration, decay <the old hostelry, then not

many years from its final [dissolution]—A.W. Long>; esp:

the extinction of life in the human body : decease, death

<grew convinced of his friend’s approaching [dissolution]—

Elinor Wylie> c : termination or destruction by breaking

down, disrupting, or dispersing <the [dissolution] of the

republic> <the [dissolution] of a treaty> <the [dissolution]

of American urban life—Richard Hofstadter> <he saw his

lifework threatened with [dissolution] through the politi-

cal and shortsighted muddling—J.C. Fitzpatrick> d : final

dispersion (as of an organized group) <the power of [dis-

solution] of a legislature at will possessed by the colonial

governor—O.P. Field> e : liquefaction <the [dissolution] of

ice> f : solution 2a g : the final liquidation of a business.”2

Other widely available dictionaries define “dissolu-

tion” similarly, and there is no indication that the word’s

meaning has changed in current usage. Oxford Languages

defines “dissolution” to mean “the closing down or dismissal

2

The secondary and tertiary meanings of “dissolution” in Webster’s Third New

Int’l Dictionary 657 (unabridged ed 2002) are clearly inapplicable, so we omit them.

Cite as 337 Or App 519 (2025) 527

of an assembly, partnership, or official body.” https://www.

google.com‌/search?q‌= define‌+dissolution (accessed Jan 13,

2025). It gives as an example “the dissolution of their mar-

riage” and lists as “similar” words cessation, conclusion, end,

ending, finish, termination, breakup, split-up, winding up/

down, discontinuation, suspension, disbandment, disestab-

lishment, disunion, separation, dispersal, scattering, proro-

gation, and recess. Id. It also provides a “technical” defini-

tion, which is “the action or process of dissolving or being

dissolved,” such as “minerals susceptible to dissolution,” and

an “archaic” definition, which is “death.” Id.

The Cambridge Dictionary defines “dissolution” to

mean “the act or process of ending an official organization

or legal agreement.” https://dictionary‌.cambridge.org‌/dictio-

nary‌/english‌/dissolution (accessed Jan 13, 2025). The Collins

Dictionary defines it as “the act of breaking up officially an

organization or institution” or “the act of officially ending

a formal agreement, for example, a marriage or a business

arrangement.” https://www.collinsdictionary.com/us/dictio-

nary/english-word/dissolution (accessed Jan 13, 2025). The

American Heritage Dictionary of English Language, which

defendant cites, includes the definition “[d]ecomposition

into fragments or parts; disintegration.”3 https://ahdictio-

nary.com/word/search.html?q=dissolution (accessed Jan 13,

2025).

Defendant argues that, although dissolution can

mean termination or the end of existence—in which case his

statement about the fire department was false—it can also

mean the breaking up of an organization or the decomposi-

tion of something into parts. He contends that, understood

that way, his statement is true, because plaintiffs voted to

break up “the organization of the Fire Department, both in

terms of dividing its functions and its personnel.”

3

Defendant also cites Webster’s New Universal Unabridged Dictionary 416

(1994) for the definitions “the undoing or breaking of a bond, tie, union, partner-

ship, etc.” and “the breaking up of an assembly or organization; * * * dispersal.”

Those definitions are similar to the ones discussed in the text, but we have been

unable to locate that particular dictionary. We remind the bar that it is helpful

to provide a copy of more obscure sources in an appendix. See ORAP 5.52 (“A

party appropriately may include in an appendix, for instance, copies of a statute

or statutes at issue in the appeal, or copies of cases that are not readily available

from standard research sources.”).

528 Waggoner v. Husk

We are unpersuaded. The definitions of “dissolu-

tion” applicable to an entity or organization all incorporate

the idea that the entity or organization ceases to exist as a

result of the dissolution. See, e.g., Webster’s Third New Int’l

Dictionary at 657 (“termination or destruction by breaking

down, disrupting, or dispersing”; “final dispersion (as of

an organized group)”; and “the final liquidation of a busi-

ness”); Oxford Languages (“the closing down or dismissal

of an assembly, partnership, or official body”); Cambridge

Dictionary (“the act or process of ending an official organiza-

tion or legal agreement”). In other words, defendant has not

identified, and we have not found, any definition of “dissolu-

tion” that includes the dissolved entity continuing to exist.

Consider some common examples. When a mar-

riage dissolves, the individuals continue as individuals, but

the marriage (the thing dissolved) no longer exists. When a

partnership dissolves, the partnership (the thing dissolved)

ceases to exist, regardless of the status of the former part-

ners. The cessation of existence of the thing dissolved is

inherent in what “dissolution” means.

By contrast, if the Department of Motor Vehicles

were to decide to limit itself to issuing driver’s licenses and

stop offering voter registration services, it could not be said

that the Department of Motor Vehicles had “dissolved.” Or,

if the United States Postal Service decided to limit itself

to selling postage and stop selling greeting cards, it could

not be said that the United States Postal Service had “dis-

solved.” By conflating the entity itself with the services it

provides, defendant contorts the meaning of “dissolution.”

Imagine a corporation that sells two distinct prod-

ucts lines, say snack foods and frozen meals. If the corpora-

tion decided to split into two separate corporations, one that

sells only snack foods and one that sells only frozen meals,

it might be reasonable to describe that as a “dissolution” of

the original corporation. However, if the corporation sim-

ply decided to focus on snack foods and stop selling frozen

meals, leaving other companies to sell frozen meals, no one

could reasonably say that the board had voted to “dissolve”

the corporation. Here, the Baker City Fire Department no

longer provides a service that it used to provide—ambulance

Cite as 337 Or App 519 (2025) 529

service—but it continues to exist and cannot be said to have

“dissolved” under any commonly recognized meaning of that

word.

As for the more technical meaning of dissolution,

which includes the concepts of decomposition and disinte-

gration—see Oxford Languages (“the action or process of dis-

solving or being dissolved”); American Heritage Dictionary

(“[d]ecomposition into fragments or parts; disintegration”)—

we understand that to refer primarily, if not solely, to physi-

cal processes by which an object ceases to exist, such as the

dissolution of a tablet in water or the decomposition of organic

material into soil. To the extent that it can be applied to a

governmental entity or organization, its meaning is no dif-

ferent from the other definitions discussed above. Like those

definitions more directly applicable to an entity or organiza-

tion, the more technical definition also incorporates the idea

that the original object ceases to exist.

Having addressed the text of the statement that

is the basis for plaintiffs’ claim, we next consider context.

Context can sometimes clarify the intended meaning of a

word, even in a way that may be at variance from its lit-

eral meaning. See Yes on 24-367 Committee, 276 Or App at

358 (“Of course, the truth and falsity of statements must

be evaluated in the context in which one would interpret

them.”). Here, context does not help defendant. Nothing in

the recall petitions alerts voters to the fact that the Baker

City Fire Department will continue to exist and continue

to fight fires. Including such information could have tipped

off readers that defendant was misusing the word “dissolu-

tion” or did not mean it literally. Without that information,

the statement that plaintiffs “directly sanctioned the disso-

lution of the professional fire department in Baker City” is

much more attention grabbing—and can only be understood

to mean what it says.

For those reasons, we reject defendant’s first argu-

ment regarding the falsity element and proceed to his sec-

ond, alternative argument on the falsity element.

Defendant argues in the alternative that, if his

statement cannot be viewed as factually correct, then it

530 Waggoner v. Husk

should be viewed as opinion. A statement that is “merely

an expression of opinion” cannot be considered “false” for

purposes of ORS 260.532. Id. at 353. In distinguishing

between statements of fact and expressions of opinion, “the

dispositive question is whether a reasonable factfinder could

conclude that the statement implies an assertion of objec-

tive fact.” Neumann v. Liles, 358 Or 706, 718, 369 P3d 1117

(2016). A statement that can reasonably be understood to

imply an assertion of objective fact is not “opinion.” Yes on

24-367 Committee, 276 Or App at 355-56.

In his opening brief, defendant relies entirely on

Sumner v. Bennett, 45 Or App 275, 280, 608 P2d 566 (1980),

to argue that his statement about dissolution of the Baker

City Fire Department should be viewed as opinion. In

Sumner, the plaintiff was an incumbent candidate for a seat

in the Oregon House of Representatives during the 1978 pri-

mary election. 45 Or App at 277. Before the election, the

defendant published a statement that the plaintiff “voted

against the Farm Use Deferral.” Id. at 278-79. The plaintiff

challenged that statement as false in an action under ORS

260.532. Id. at 278. The trial court concluded that it was a

nonactionable expression of opinion. Id. at 280. The plaintiff

had in fact “voted against a measure relating to the farm

use tax deferral,” and there was a reasonable dispute about

how that measure would ultimately affect the availability of

the farm use tax deferral. Id. at 280-81. Because it was rea-

sonably disputed whether a vote against that measure was

a vote against the farm use deferral, defendant’s statement

amounted to an expression of opinion. Id. at 281 (“Under

the facts of this case, the characterization of the plaintiff’s

voting record was an evaluation of what would be the likely

effect of plaintiff’s vote on certain bills. An evaluation is an

expression of opinion. Therefore, the challenged statements

by the defendant were not actionable falsehoods within the

meaning of ORS 260.532.”).

Defendant analogizes his statement to that in

Sumner, arguing that he was expressing an opinion regard-

ing the effect of not providing ambulance service through

the city fire department. We are unpersuaded. The trial

court properly treated defendant’s effect statement—that

Cite as 337 Or App 519 (2025) 531

dissolving the fire department would have the effect of

“destroying the network of public safety that has been in

place for more than 100 years”—as nonactionable opinion.

By contrast, defendant’s statement that plaintiffs “directly

sanctioned the dissolution” of the fire department does not

read as an “effect” statement. The use of “directly” under-

mines any suggestion of an effect statement. Moreover,

while it may be reasonably disputable whether the city coun-

cil’s decision destroyed Baker City’s public safety network

(an opinion), it is not reasonably disputable whether the

city council directly sanctioned the dissolution of the Baker

City Fire Department. Defendant’s reliance on Sumner is

misplaced.

In their answering brief, plaintiffs expand the “opin-

ion” discussion beyond Sumner, arguing that defendant’s

statement does not qualify as opinion under the controlling

Neumann test. Defendant responds to that argument in his

reply brief. We therefore next consider the Neumann factors.

See Bryant, 286 Or App at 699-700 (applying the Neumann

test to determine whether statements were “opinion” for pur-

poses of an ORS 260.532 claim); Yes on 24-367 Committee,

276 Or App at 353-54 (same).

Under Neumann, in deciding whether a reason-

able factfinder could conclude that a statement implies an

assertion of objective fact, such that it cannot be consid-

ered a mere expression of opinion, the relevant factors are

“(1) whether the general tenor of the entire publication

negates the impression that the defendant was asserting

an objective fact; (2) whether the defendant used figurative

or hyperbolic language that negates that impression; and

(3) whether the statement in question is susceptible of being

proved true or false.” Neumann, 358 Or at 719. We agree

with plaintiffs that all three factors support their position

that the statement does not qualify as mere opinion.

First, the general tenor of the publication does not

negate the impression that defendant was asserting an

objective fact. The purpose of a recall petition is to explain to

voters why an elected official should be recalled from office.

It is an inherently serious publication, as reflected both in

the warning on the SEL 350 form that all fact statements

532 Waggoner v. Husk

must be true and by the reality that false statements of fact

give rise to liability under the OCPA. A person reading such

a document would expect it to contain both objective facts,

regarding the elected official’s actions, and political opin-

ions, regarding the wisdom of those actions and the merits of

a recall. Nothing about the general tenor of the publication

would suggest to readers that seemingly factual statements

contained therein should not be taken seriously as facts.

See Bryant, 286 Or App at 702 (concluding that the general

tenor of the publication implied a statement of objective fact,

in part because it “was provided in the recall petition as one

of the ‘statements of reasons for demanding recall’ ”).

Second, there is nothing apparently figurative or

hyperbolic about the statement that plaintiffs directly sanc-

tioned the dissolution of the fire department, so as to negate

the impression of an assertion of objective fact. The only

hyperbole is in the characterization of the effect of the fire

department’s dissolution, i.e., the destruction of the city’s

100-year-old public safety network. Expressing a negative

opinion regarding the effect of dissolution of the fire depart-

ment on public safety does not negate the impression that the

dissolution of the fire department itself is a fact. See Yes on

24-367 Committee, 276 Or App at 354 (reversing the grant of

an anti-SLAPP motion, where the defendants stated in the

voters’ pamphlet, “This bond levy will DOUBLE the Fire

District Tax assessments for the next 20 Years[,]” a false

statement that was “unmistakably factual” and thus action-

able, notwithstanding that “most of the content of the voters’

pamphlet statement reflects defendants’ subjective views

that the proposed measure is unnecessary and wasteful—

pure expressions of political opinion” (emphasis in original)).

Third, whether the city councilors directly sanc-

tioned the dissolution of the Baker City Fire Department is

susceptible of being proved true or false. Defendant’s argu-

ments to the contrary depend on his attempt to stretch the

meaning of “dissolution” in an untenable manner, as dis-

cussed earlier. See Chief Aircraft, Inc. v. Grill, 288 Or App

729, 735, 407 P3d 909 (2017), rev den, 362 Or 699 (2018) (the

defendant’s online statement that the plaintiff credit card

company “flags” certain charges was “susceptible of being

Cite as 337 Or App 519 (2025) 533

proven true or false” because the company either did or did

not do that).

Accordingly, we conclude that the statement at

issue does not qualify as an expression of opinion and reject

defendant’s alternative argument on the falsity element.4

That leaves defendant’s challenge to plaintiffs’

prima facie case on the mental state element. Plaintiffs had

to put on a prima facie case that defendant knew that the

statement was false, or recklessly disregarded whether it

was false, when he made it.5 ORS 260.532. Defendant argues

that he attested on the SEL 350 forms that he “believed the

statements to be ‘true and accurate’ at the time they were

published” and that plaintiffs’ evidence was insufficient to

prove otherwise. Again, we are unpersuaded.

To meet their burden to overcome defendant’s ORS

31.150 motion, plaintiffs did not have to definitively prove

that defendant acted knowingly or recklessly in making a

false statement. Yes on 24-367 Committee, 276 Or App at

359. They were required “only [to] present substantial evi-

dence of a prima facie case.” Id. And they could meet their

burden with circumstantial evidence rather than direct evi-

dence. Id. “Indeed, direct proof of a defendant’s subjective

state of mind is typically hard to come by, and intent, knowl-

edge, and recklessness are often inferred from surrounding

circumstances.” Id.

Viewing the evidence in the light most favorable to

plaintiffs, as required for an anti-SLAPP motion, we agree

with the trial court that plaintiffs put forward sufficient evi-

dence for a prima facie case on the mental state element.

4

As noted above, the trial court’s determination on the anti-SLAPP motion,

as well as our analysis agreeing with that determination, is based on the partic-

ular record before the trial court at this point and is relevant only to the outcome

of the anti-SLAPP motion itself and not at any later procedural stage of the case.

See Erickson for Congress Com. v. Salinas for Oregon Com., 337 Or App 493, ___,

___ P3d ___ (2025) (noting the absence of countervailing evidence from the record

before the court on an anti-SLAPP motion).

5

Plaintiffs argue that defendant mischaracterizes the mental state element

of ORS 260.532 as “actual malice.” We take the culpable mental state from the

text of ORS 260.532 but note that it is substantially similar to the “actual malice”

standard in defamation law. See Wingard, 290 Or App at 523 (describing the men-

tal state element from ORS 260.532 as similar to the “actual malice” standard

from a defamation action).

534 Waggoner v. Husk

There is evidence that defendant worked as a firefighter for

the Baker City Fire Department from 2020 to July 2022, was

involved in union negotiations with the city regarding the

fire department, and attended multiple city council meet-

ings relating to the April 2022 vote.6 The record supports a

reasonable inference that he knew that the city council did

not vote to dissolve the fire department. See id. at 360 (con-

cluding, with respect to an allegedly false statement regard-

ing the fire department, that the plaintiff made out a prima

facie case on the mental state element where, among other

things, the defendant knew or should have known the true

facts as a former fire department lieutenant and former city

mayor).

Accordingly, we conclude that the trial court did not

err in denying defendant’s special motion to strike plain-

tiff’s complaint for a violation of ORS 260.532.

Affirmed.

6

In his own declaration in support of the motion to strike, defendant attested

that his statements on the SEL 350 form were “based on information that [he]

learned while working for [the fire department], from attending meetings of the

City Council, and through news reports.”