Who, It Is Fair to Ask, Is Retaliating Against Whom in This Situation?

In August 2020, the people of Tullahoma elected [Jenna] Amacher to a three-year term as an alderman. Amacher did not hide from controversy, whether in that role or outside of it. One example: She opposed a local redevelopment plan that many local leaders and residents supported. Another example: She took more conservative political positions than her fellow aldermen. Still another example: She posted a photo on Facebook of her and her sister-in-law at a “redneck Christmas party” posing in front of a Confederate flag with a sign that read, “[w]e go together like cocaine and waffles.” Her political stances alienated some residents and officials, and the photo “shocked” Tullahoma Mayor Ray Knowis and “bother[ed]” City Administrator Jennifer Moody.

The Tullahoma charter requires aldermen to live within the City and provides that an alderman “vacates” her office by moving her residence outside of the City. In February 2021, Amacher sold her home in Tullahoma and moved into her grandfather’s former house, which is located outside of the City. For about six months, she did not own any property in the City. In August 2021, Amacher bought an unimproved lot in the City, on which she planned to build a new house. But the plan did not come to fruition for some time. She started construction in the Fall of 2021, suffered delays due to a tornado, then experienced further delays due to the Covid-19 pandemic. Construction did not begin in earnest until early 2023. In the meantime, Amacher continued to live outside of the City, between at least February 2021 and March 2023, while remaining an alderman.

In February 2022, Amacher ran for a seat on the county commission and listed her house-free property in the City as her residence. The designation raised the suspicion of the county election commissioner who questioned whether Amacher lived in the district. The commissioner told Moody, the city administrator, about Amacher’s uncertain residency status. In May 2022, Amacher lost the primary election for the county commission seat.

Even so, a local resident, Scott Van Velsor, collected 270 signatures to ask the district attorney to investigate Amacher’s residency because she continued to serve as a Tullahoma alderman. In October 2022, with the support of several citizens, 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 found Amacher’s claims of living on the undeveloped plot of land in the City “unconvincing and damaging to her credibility.” But that did not end the inquiry. Tennessee law, the state court explained, deems someone a resident of a city so long as they intend to return there. That legal test prompted this factual question: Did Amacher intend to move back to the City? On that score, Amacher did “just enough” by trying to build a habitable residence on her lot to “manifest her intent to” live in the City again. The court found that she remained a Tullahoma resident and denied the petition.

Amacher’s victory did not bring peace. After the state court’s ruling, Amacher sued the City, Knowis, Moody, Van Velsor, and Woodard for retaliating, and conspiring to retaliate, against her for exercising her free-speech rights under the First (and Fourteenth) Amendment. She added a state law malicious prosecution claim against the individual defendants….

To show that the defendants retaliated against her exercise of First Amendment rights, Amacher must establish at a minimum that she engaged in protected speech, that she experienced an “adverse action,” and that opposition to her speech by the defendants caused the adverse action. Additional requirements come into play if the claimant bases her First Amendment retaliation claim on a legal action taken against her by the government. If the adverse action allegedly prompted by the claimant’s free speech was a criminal prosecution or an arrest by law enforcement officers, for example, the claimant must show the absence of probable cause as an element of the claim.

At stake today is whether a no-probable-cause requirement applies in the context of the quo warranto petition that the district attorney filed against Amacher. We conclude that it is an element of the claim that the plaintiff must prove….

A common law malicious prosecution claim offers the best analogy to a quo warranto action. At common law, and today, a malicious prosecution claim challenges the “wrongful institution of legal process.” That action in material ways parallels Amacher’s claim that the defendants improperly initiated the quo warranto petition against her.

A quo warranto action forces an officeholder to answer (in English) this question: By what right do you hold this position? In the absence of a satisfactory answer—because, say, the individual does not meet the qualifications for office—the officeholder loses the position. While this civil action, if successful, would not lead to a criminal sentence, it would have serious consequences for the individual and for the community: removal of a democratically elected official from office. Whether it is misuse of the government’s power to criminally prosecute someone or to unfairly remove them from office, both situations turn on government officials who misuse their power to take action on behalf of a community against an individual in the community….

At common law, as well as today, a malicious prosecution claim required the claimant to disprove that probable cause supported the allegedly retaliatory action. Amacher must do the same to succeed on her retaliation claim….

Another analogous common law tort, for what it is worth, supports this no-probable-cause requirement. The common law provided a claim based on “wrongful civil proceedings.” Much like Amacher’s First Amendment claim, this tort involved a complaint that the defendant baselessly sued the plaintiff for an “improper, malicious purpose.” And much like malicious prosecution, this tort required a plaintiff to prove that the challenged lawsuit “lacked probable cause.” …

All of this makes particular sense in a case in which a government official sues citizens on free-speech retaliation grounds. Surely those citizens have free-speech rights of their own, including the right to challenge on reasonable grounds whether an officeholder meets the requirements of office. Any other approach would enable Amacher—after taking a provocative stand on an issue of the day—to transform the First Amendment’s “shield” for free speech into a “sword” an elected official could wield against political opponents.

Take today’s setting. Without a no-probable-cause requirement, this lawsuit would allow an elected official to punish political opponents, including citizens, for exercising their First Amendment right to petition a state court. Who, it is fair to ask, is retaliating against whom in this situation? …

To establish a lack of probable cause, Amacher must demonstrate that the defendants did not have “a reasonable belief” that the quo warranto action had even “a chance” of succeeding…. [Amacher] has not shown that the quo warranto 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. Although the petition failed, it presented a fair ground for disqualifying her, as the state judge acknowledged. Recall that the City’s charter required Amacher to remain a resident of the City to retain her office. She sold her only home in the City, moved outside of the City limits, and did not own any property in the City for six months. Even when she bought a vacant lot, she did not begin meaningful construction of the home for a year and a half.

That “plodding effort” to build a house in the City, the Tennessee court found, was “just enough” to show that she intended to return. She added to the uncertainty about her residency in the interim by refusing to say where she lived and by dubiously claiming she spent a significant number of nights on the unimproved lot. The Tennessee court agreed that Amacher’s lack of “transparency” about where she lived contributed to the “trouble” with establishing her residency.

These realities combine to show that the citizens and public officials could fairly doubt that she intended to return to the City. The quo warranto petition, though unsuccessful, presented a serious and legitimate reason for challenging her eligibility…. There was, in short, probable cause to support it. We do not, and should not, lightly penalize the efforts of citizens, or for that matter government officials, to challenge the bona fides of an elected official’s debatable claim to office….

Even if probable cause pierces free-speech retaliation claims in this setting, Amacher adds, no probable cause in fact supported the quo warranto petition. She points out that Tennessee law does not define residency based solely on where one currently lives but also on one’s future intent to return to a place…. [But u]nlike a college student staying in a dorm during the semester or a soldier deployed overseas, as she analogizes her situation, Amacher gave the people of the City reason after reason to doubt her future plans. The state court acknowledged as much when it found that Amacher had “damaged[ed] … her credibility” by her actions and statements and that the intent question came down to a close call in which Amacher had done “just enough” to maintain her residency and keep her seat. The evidence shows that the defendants had “a reasonable belief” that the petition had at least “a chance” of succeeding. Once the defendants’ lawsuit is shown to be premised on reasonable grounds, it makes no difference whether the citizens’ and public officials’ decision to file the lawsuit was also motivated by free-speech, or for that matter political, retaliation….

A few words are in order about a few issues that we leave untouched. Amacher does not claim that any defendant dangled the quo warranto petition over her head to coerce her speech or manipulate her work on the city council. Such a claim might more closely resemble the common law tort of abuse of process, which may be filed in response to a claimant who has an improper “ulterior” motive in using a legitimate legal proceeding and who has no intent to prevail in it. In that setting, probable cause may not provide a complete defense, as it clearly does in a free-speech retaliation claim that more closely resembles a claim for malicious prosecution or wrongful use of civil proceedings.

Amacher does not claim that the public-official defendants unequally enforced the residency requirement, filing a quo warranto petition only against Amacher but not against other elected officials facing similar question marks about their residency. See Nieves (“[T]he no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”).

Amacher does not claim that the quo warranto petition emerged from an official policy to retaliate against her proved by indisputable “objective evidence.” Lozman v. Riviera Beach (2018) (retaliatory arrest claimants do not need to disprove probable cause when a series of extraordinary circumstances converge).

Last reservation of all: We save for another day whether a fair-grounded effort to unseat an elected official amounts to an “adverse action” in the first place. The answer is not obvious in view of the twin American tenets that “legislative power … belongs to the people,” and individual legislators have “no personal right to it.”