# Waggoner v. Husk

> Court of Appeals of Oregon · January 29, 2025 · 337 Or. App. 519

URL: https://www.frixlaw.com/law-library/cases/10791958

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** January 29, 2025
- **Citations:** 337 Or. App. 519
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Aoyagi
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10791958

## Opinion text

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 b : disintegration, decay ; esp:
the extinction of life in the human body : decease, death
c : termination or destruction by breaking
down, disrupting, or dispersing d : final
dispersion (as of an organized group) e : liquefaction 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.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10791958. Public record. Not legal advice.