Southern California politician can't sue city for censuring her, federal judge rules

ORANGE COUNTY, Calif. (CN) — A federal judge threw out a lawsuit against the small Southern California city of Cypress filed by one of its former city council members, a reformer who found herself at odds with the rest of the municipal government.

Frances Marquez became the first Latina in recent history to be elected to the five-member Cypress City Council in 2020. She immediately became an outsider on the council, feuding with her colleagues on a number of issues, not least of which was a recent lawsuit.

Shortly after Marquez’s election, two residents of Cypress sued the city over its system of electing city council members “at-large” — that is, the whole city votes for a few candidates, as opposed to breaking it down by district, as most large cities do things. The residents said the system made it harder for minorities to get elected. Marquez, who was already a staunch supporter of switching to “by-district” elections, urged the council to not fight the suit and to change its voting system.

The other four council members overruled her. The city did fight the suit, for years, until 2024 when it eventually settled and converted to a by-district electoral process.

But in the meantime, Marquez was pushed to the political periphery. She was censured by her colleagues twice — once for “repeatedly interfer[ing] with the City Manager’s selection of a department director by insisting in being included in the selection process," the other time for speaking at a high school. The council said she was campaigning there; she denied it. The second censure ordered her to formally apologize to the school, fined her $100, and suspended her salary for three months.

Marquez decided not to run for reelection, opting instead to run for a seat on the Orange County Board of Supervisors, a race she lost. She also decided to sue, accusing the city council, mayor and city manager of engaging in “a campaign of harassment and retaliation” against her, all because she supported change and reform. She said they violated her First Amendment right to free speech when they censured her and when one of her colleagues attacked her during a council meeting.

U.S. District Judge Otis Write took a dim view of Marquez’s argument, pointing out in his 12-page ruling issued Wednesday night that not all speech by an elected official is protected. When an official votes or states a position, it is not an inherently expressive act.

“Marquez has not provided any facts showing that she made a statement about by-district elections in some context other than in the course of her duties as a City Councilmember,” Wright wrote. “Rather, it appears that the other members of the City Council came to know of Marquez’s support for by-district elections through Marquez’s position and subsequent vote as to how the City Council should respond to the [election] Lawsuit.”

He added: “Marquez’s voting record and discussions with her fellow City Councilmembers regarding how the City should respond to potential litigation are very much part and parcel of Marquez’s position as an elected official … While Marquez also alleges that she ‘repeatedly stated her belief that the City should transition to a by- district election system,’ there is little to no information about when or in what context Marquez made these statements. Without more, Marquez falls short of establishing she engaged in protected speech.”

Wright dismissed the complaint, but will allow Marquez to refile an amended version of the complaint, either in federal or state court.

Marquez’s attorney, Lee Fink of the Brewer Law Group, said she plans to amend her claim.

“The court issued a very narrow ruling and made clear that her claim to recover the salary that the rest of the city council wrongfully withheld could proceed. In accordance with the court’s ruling, we intend to amend the complaint to add further specificity as to the nature of Dr. Marquez’s protected speech. We hope that the new city council in Cypress will see the error of its ways and agree to resolve this case,” Fink said in a written statement.

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