From Amacher v. City of Tullahoma, issued by the Sixth Circuit on June 25, with an opinion authored by Judge Jeffrey Sutton and joined by Judges Joan Larsen and Eric Murphy; for a related matter involving the same plaintiff but a separate incident, see also Coffee County Clerk Candidate Indicted for Using Fake Address on Election Petition, DA Says (WSMV-4, Kassidy Brown, June 11):
In August 2020, the residents of Tullahoma elected Jenna Amacher to serve a three-year term as an alderman. Amacher did not shy away from controversy, whether in her official role or beyond it. She opposed a local redevelopment plan that many city leaders and residents supported. She also held more conservative political views than her fellow aldermen. Additionally, she posted a photo on Facebook of her and her sister-in-law at a “redneck Christmas party” in front of a Confederate flag with a sign stating, “[w]e go together like cocaine and waffles.” The stance and the photo alarmed Tullahoma Mayor Ray Knowis and troubled City Administrator Jennifer Moody.
The city charter requires aldermen to reside within the city and provides that an alderman vacates the office if she moves her residence outside of the city. In February 2021, Amacher sold her Tullahoma home and moved into her grandfather’s former residence outside the city. For about six months she did not own any property within the city. In August 2021, Amacher purchased an undeveloped city lot on which she planned to build a new home, but the project did not progress promptly. Construction did not commence in earnest until early 2023, after a tornado and then the Covid-19 pandemic caused further delays. Throughout this period, Amacher continued to live outside the city while remaining an alderman.
In February 2022, Amacher ran for a seat on the county commission and listed the property outside the city as her residence. This designation drew suspicion from the county election commissioner, who questioned whether Amacher actually lived in the district. The commissioner informed Moody about Amacher’s unsettled residency status. In May 2022, Amacher lost the primary election for the county commission seat.
Nevertheless, a local resident, Scott Van Velsor, collected 270 signatures urging the district attorney to investigate Amacher’s residency given that she continued to serve as a Tullahoma alderman. In October 2022, with the support of several residents, the district attorney sought a writ of quo warranto from a Tennessee state court, requesting Amacher’s removal from office due to her lack of residency in the City. In December, the district attorney amended the petition to name Van Velsor as the relator and another Tullahoma resident, Jim Woodard, as the guarantor for a $500 bond to cover court costs if the petition failed.
The Tennessee court rejected Amacher’s assertion that she lived on the undeveloped city lot as unconvincing and damaging to her credibility. But the inquiry did not end there. Tennessee law treats someone as a city resident if they intend to return there. This legal test raised the factual question: did Amacher intend to move back to the City? On this point, she did “just enough” by attempting to construct a habitable dwelling on her lot to “manifest her intent to” live in the City again. The court found that she remained a resident of Tullahoma and denied the petition.
Amacher’s win did not bring quiet. After the state court’s ruling, she filed suit against the City, Mayor Knowis, City Administrator Moody, Van Velsor, and Woodard, alleging retaliation and a conspiracy to retaliate against her for exercising her First Amendment rights (and similar protections under the Fourteenth Amendment). She also added a state-law claim for malicious prosecution against the individual defendants….
To prove that the defendants retaliated against her exercise of First Amendment rights, Amacher must show, at minimum, that she engaged in protected speech, that she faced an adverse action, and that the defendants’ opposition to her speech caused that adverse action. Additional requirements come into play if the retaliation claim is grounded in a government-initiated legal action against her. If the adverse action alleged to stem from her speech was a criminal prosecution or an arrest, she must also prove the absence of probable cause as an element of the claim.
At stake here is whether a no-probable-cause requirement applies to the quo warranto petition that the district attorney filed against Amacher. The court concludes that it is indeed a required element the plaintiff must prove….
A common-law malicious-prosecution claim offers the closest analogue to a quo warranto action. In both traditional and contemporary terms, such an action challenges the improper initiation of legal proceedings. That framework parallels Amacher’s assertion that the defendants improperly started the quo warranto petition against her.
A quo warranto action compels an officeholder to answer the question, in plain terms: By what authority do you hold this position? If the answer fails to satisfy—such as when the individual does not meet the qualifications—liability results in the loss of the office. Although this civil remedy, if successful, does not carry a criminal sentence, it nonetheless carries serious consequences for the individual and the community: the removal of an elected official. Whether it is a misuse of government power to prosecute someone or to remove them unfairly, both outcomes depend on officials abusing their authority to take action against a community member on behalf of the community….
Historically and presently, a malicious-prosecution claim required the plaintiff to show the absence of probable cause supporting the allegedly retaliatory action. Amacher must meet the same standard to prevail on her retaliation claim….
Another related common-law tort, for what it’s worth, supports this no-probable-cause requirement. The tort of “wrongful civil proceedings” involved complaints that the defendant sued the plaintiff without legitimate basis or with improper, malicious intent. Like malicious prosecution, this tort required proof that the challenged lawsuit lacked probable cause.
All of this makes particular sense in a case where a government official sues private citizens on free-speech retaliation grounds. Those citizens retain their own free-speech rights, including the right to challenge, on reasonable grounds, whether an officeholder meets the statutory requirements. Any other approach would permit Amacher—after taking a provocative stance on a current issue—to convert the First Amendment’s shield for free expression into a weapon an elected official could wield against political opponents.
Consider today’s setting. Absent a no-probable-cause requirement, this suit could allow an elected official to punish political opponents, including ordinary citizens, for exercising their First Amendment right to petition a state court. Who is retaliating against whom in this situation? …
To prove lack of probable cause, Amacher must show that the defendants did not hold a reasonable belief that the quo warranto action had any realistic chance of success… [Amacher] has not demonstrated that the petition lacked probable cause….
The quo warranto petition sought to challenge Amacher’s eligibility to serve as an alderman based on reasonable concerns about her residency. Though the petition failed, the state judge acknowledged that there was a legitimate basis to question her eligibility. The city’s charter required Amacher to stay a resident of the City to retain her post. She sold her only home in the City, moved outside its limits, and did not own any city property for six months. Even after purchasing a vacant lot, substantial construction did not begin for more than a year and a half.
The court described Amacher’s slow efforts to build a home in the City as “just enough” to demonstrate an intent to return. Her reluctance to disclose her actual residence and the dubious claim that she spent a substantial number of nights on the undeveloped lot further undermined her credibility. The Tennessee court agreed that Amacher’s lack of transparency about where she lived contributed to the difficulties in proving residency.
These facts collectively could lead both citizens and public officials to doubt her intent to return to the City. While the petition ultimately did not succeed, it presented a serious and legitimate basis to challenge her eligibility… There was, in short, probable cause to support it. We should not lightly penalize citizens—or public officials—for challenging the bona fides of an elected official’s contentious claim to hold office….
Even if probable cause can affect free-speech retaliation claims in this setting, Amacher adds, no probable cause factually supported the quo warranto petition. She notes that Tennessee law does not define residency solely by where one currently resides but also by one’s future intent to return. Yet, unlike a college student living in dorms during a term or a soldier stationed abroad, Amacher gave the City plenty of reasons to doubt her future plans. The state court recognized this by finding that Amacher had damaged her credibility through her actions and statements, and that the intent issue was a close call in which she had done “just enough” to maintain residency and keep her seat. The record shows that the defendants possessed a reasonable belief that the petition had at least a chance of success. Once the defendants’ suit is shown to be grounded in reasonable belief, it makes little difference whether the filing was also motivated by free-speech or political retaliation….
A few final notes: Amacher does not contend that any defendant dangled the quo warranto petition over her head to coerce her speech or manipulate her council duties in a way that would more closely resemble the tort of abuse of process, which can apply when a plaintiff demonstrates improper ulterior motives in pursuing a legitimate legal action and an intent not to prevail. In that setting, probable cause may not provide a complete defense, as it does for free-speech retaliation claims that resemble malicious prosecution or improper use of civil proceedings.
Amacher does not claim that the public-official defendants applied residency rules in an unequal fashion, filing a quo warranto petition against her but not against other officials facing similar residency concerns. See Nieves, which holds that the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested while similarly situated individuals not engaged in the same protected speech were not.
Amacher also does not claim that the quo warranto petition stemmed from an official policy aimed at retaliating against her, proven by undisputed objective evidence. Lozman v. Riviera Beach addresses this point.
Last caveat for later: we reserve for another day whether a fair-grounded effort to remove an elected official constitutes an “adverse action” in the first place. The answer is not obvious given the twin American principles that “legislative power … belongs to the people,” and that individual legislators have no personal right to it.
McKenna G. Williams (Howell & Fisher, PLLC) and Daniel C. Headrick (Johnson Evans & Headrick, P.C.) represent defendants.
