BAKER CITY — A former Baker City firefighter and a Baker City resident who are the defendants in a civil lawsuit filed by three Baker City Council members are asking a judge to dismiss the suit.

Casey Husk, a former firefighter, and Debbie Henshaw are the defendants.

Husk is the chief petitioner in a campaign to force a recall election for several city councilors. Henshaw has been helping to gather signatures for the recall effort since Husk filed the petitions in September.

Husk and Henshaw’s attorneys, Chad A. Naso and Laura Salerno Owens of Portland, filed a motion Nov. 15 asking Judge Matt Shirtcliff of Baker County Circuit Court to dismiss the suit and award their clients reasonable attorney fees.

Husk and Henshaw have requested oral arguments on their motion. A hearing is tentatively set for Dec. 16 at 2 p.m. in circuit court.

Former Baker City Mayor Kerry McQuisten and current city councilors Joanna Dixon and Johnny Waggoner Sr. filed the suit Oct. 7.

They contend that the recall petitions Husk filed for six councilors, and that Henshaw has supported by gathering signatures, contain “a false statement of material fact,” a violation of Oregon elections law.

The lawsuit cites the statement, common to each recall petition, that the councilors have “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’ claim about Henshaw is that a comment she posted on Facebook, in response to a question about the recall effort, contains a false statement.

Henshaw’s comment, 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. …”

Each of the three plaintiffs is asking for $5,000 in damages — $2,500 each from Husk and Henshaw. The plaintiffs are represented by attorney Vance Day.

Husk and Henshaw stand by the statements in the recall petitions.

Husk, in an earlier interview, deemed the lawsuit “bogus.”

Henshaw called the lawsuit “immature and childish” and said she was concerned that the complaint could discourage people from signing the recall petitions.

McQuisten no longer subject to recall

Of the three plaintiffs, McQuisten is no longer subject to potential recall because she has resigned as a councilor. Her final meeting was Nov. 22. She resigned her position because she is moving outside the city limits and is no longer eligible, per the city charter, to serve as a councilor.

Dixon and Waggoner remain as councilors and are subject to potential recall by city voters.

Husk was prompted to seek a recall election for six of the seven councilors after the council agreed earlier this year to eliminate ambulance service from the fire department’s list of duties.

A private company, Metro West, now operates ambulances in the city and in much of Baker County.

Husk resigned from the Baker City Fire Department due to the council’s decision. He now works as a firefighter/paramedic in Umatilla County.

Husk said he continues to gather signatures. He believes he has enough signatures, if they’re verified, to force a recall election for at least some of councilors.

In addition to Dixon and Waggoner, councilors Dean Guyer, Shane Alderson and Jason Spriet could face a recall election if Husk submits enough verified signatures — 680 signatures are required for each councilor (voters can sign multiple petitions).

Alderson will also be leaving the council at the end the year, as he was elected Nov. 8 as chairman of the Baker County Board of Commissioners, a job he’ll start in January.

Husk did not file a recall petition for the other councilor, Kenyon Damschen, because Damschen hadn’t yet served as a councilor for six months and thus was exempt from recall when Husk began his campaign.

Damschen has since passed the six-month mark.

Defendants’ attorneys cite First Amendment protection

In the motion seeking to dismiss the lawsuit, Husk and Henshaw’s attorneys write that “The First Amendment does not permit plaintiffs to use the civil litigation process to silence their political critics.”

The motion also notes that an Oregon law, ORS 31.150, “gives teeth to this constitutional commitment, safeguarding those who speak out on matters of public interest from attempts to silence them through litigation.”

That law outlines the situations in which defendants can seek dismissal of a civil lawsuit.

Husk and Henshaw’s motion also quotes ORS 31.152, which states that 31.150 is “to be liberally construed in favor of the exercise of the rights of expression.”

Husk and Henshaw’s attorneys argue in the motion that their clients are entitled to a dismissal of the lawsuit, and attorney’s fees, because the plaintiffs will not be able to prove, in court, that either Husk’s or Henshaw’s statements are false and that they made the statements “with knowledge or reckless disregard that it was false.”

The attorneys cite a ruling by the Oregon Supreme Court that statements are not “false,” based on state law, “if any reasonable inference can be drawn from the evidence that the statement is factually correct or that the statement is merely an expression of opinion.”

With regard to Husk’s statement in the recall petitions, the attorneys argue that the statement isn’t an “assertion of objective fact” in part because Husk used “hyberbolic language” including the statement that the council’s decision to end ambulance service constituted the “dissolution” of the fire department and was “destroying” the public safety network.

But even if Husk’s statement is construed as a statement of objective fact, his lawyers argue, “it can reasonably be inferred to be factually correct” because the council did agree to end ambulance service.

As for Henshaw’s comment on Facebook, her attorneys argue in the motion that the comment is not a “material” statement, under Oregon law, because it is not directly affiliated with the recall and was made in response to a question posted by someone who doesn’t live in Baker City, isn’t eligible to vote in a recall election and thus couldn’t influence a potential voter.

The attorneys also contend in the motion to dismiss that even if Husk and Henshaw’s statements were both false and material, the plaintiffs “cannot present substantial evidence to show it was probable that Mr. Husk and Ms. Henshaw knew or recklessly disregarded the truth when causing the statement to be published.”

“Both Mr. Husk and Ms. Henshaw have submitted declarations with this motion attesting that each believed their statements true at the time they were made. Plaintiffs will be unable to rebut these declarations with substantial evidence from which a factfinder could find that Mr. Husk and Ms. Henshaw knew the statements at issue were false at the time they were made.”