Dixon O'Brien v. Village of Lincolnshire

In the

United States Court of Appeals
For the Seventh Circuit
No. 19-1349

DIXON O’BRIEN, et al.,
Plaintiffs-Appellants,

v.

VILLAGE OF LINCOLNSHIRE,
a Municipal Corporation, et al.,
Defendants-Appellees.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cv-01310 — John Robert Blakey, Judge.

ARGUED SEPTEMBER 4, 2019 — DECIDED APRIL 7, 2020

Before ROVNER, SCUDDER, and ST. EVE, Circuit Judges.
ROVNER, Circuit Judge. Dixon O’Brien, John Cook, and the
unions to which they belong sued the Village of Lincolnshire
and the Illinois Municipal League claiming violations of their
rights under the First Amendment and the Equal Protection
Clause of the Fourteenth Amendment, as well as violations of
2 No. 19-1349

state law. The district court dismissed their federal claims
under Federal Rule of Civil Procedure 12(b)(6) and declined to
exercise supplemental jurisdiction over their remaining state
law claims. We affirm.
I.
In reviewing a grant of a motion to dismiss, we are required
to assume that the facts alleged in the complaint are true.
Savory v. Cannon, 947 F.3d 409, 411–12 (7th Cir. 2020). At the
time they filed their Complaint, both O’Brien and Cook were
residents of Lincolnshire.1 Both paid a variety of municipal
taxes including property and sales taxes to the Village. O’Brien
is a member of the International Union of Operating Engineers,
Local 150, AFL-CIO. Cook is a member of Carpenters Local
250, an affiliate of the Chicago Regional Council of Carpenters,
United Brotherhood of Carpenters and Joiners of America. We
will refer to them collectively as the Unions. The Unions
represent members who reside in, work in, and pay taxes to
Lincolnshire.
Under Illinois law:
The corporate authorities of each municipality
may provide for joining the municipality in
membership in the Illinois Municipal League, an
unincorporated, nonprofit, nonpolitical associa-

1
The operative complaint for the purposes of the appeal is the plaintiffs’
Third Amended Complaint, which we will refer to as the “Complaint.”
R. 40. O’Brien later moved out of Lincolnshire and concedes that he no
longer has standing for the purposes of injunctive relief, but continues to
seek money damages.
No. 19-1349 3

tion of Illinois cities, villages and incorporated
towns and may provide for the payment of
annual membership dues and fees. The member
cities, villages and incorporated towns acting by,
through and in the name of such instrumentality
may provide and disseminate information and
research services, and may do all other acts for
the purpose of improving local government.
65 ILCS 5/1-8-1. Lincolnshire is one of more than a thousand
dues-paying members of the Illinois Municipal League
(“League” or “IML”). Lincolnshire uses tax revenue to pay
those dues, specifically, money from the Village’s General
Fund. The General Fund, in turn, comes from utility, sales and
income taxes, among other things. Over a five year period
extending from 2013 to 2018, Lincolnshire paid at least $5,051
in voluntary dues and fees to the League.
Consistent with the statutory description of the League, the
organization’s Bylaws provide that the League:
shall be an instrumentality of its member cities,
villages and incorporated towns. Its purpose
shall be to cooperate with its member munici-
palities in the development and improvement of
their governments and to promote efficient
municipal administration. The League shall
furnish such service to municipalities as may be
determined by the Board of Directors and
through the Executive Director.
4 No. 19-1349

R. 40, Ex. A, at A-3.2 According to the Bylaws, the Board of
Directors is comprised of elected officers, each of whom must
be the chief elected official in his or her respective municipal-
ity. The Board consists of a President, a First Vice President, a
Second Vice President, thirty-six Vice Presidents, and any Past
Presidents who are still the chief elected officials of their
municipalities. The Executive Director is appointed by the
Board of Directors, and manages the affairs of the League
“under the general direction of the Board[.]” R. 40, Ex. A, at
A-5, A-7. The Executive Director is expressly “responsible for
League legislative and legal activities under the general
supervision of the Board of Directors.” R. 40, Ex. A, at A-8.
Only municipalities, cities, villages and incorporated towns
may join the League.
The plaintiffs allege that the League is a “private, nonpublic
organization” that, contrary to the statutory description of the
League as nonpolitical, engages in political activity including
lobbying and contributing to candidates.3 According to the

2
The plaintiffs attached the League’s Bylaws to the Complaint, and refer
to that document throughout the Complaint. We may therefore refer to the
Bylaws in addressing the appeal of the district court’s grant of the defen-
dants’ motion to dismiss. Williamson v. Curran, 714 F.3d 432, 436 (7th Cir.
2013). The plaintiffs also attached to the Complaint two advertisements
from the League’s website promoting the League’s participation in Illinois’
Lobby Day activities in 2017 and 2018, and we may consider those
documents as well.

3
The plaintiffs cited to the Illinois State Board of Elections website in
support of the allegation that the League contributed to political candidates.
The defendants concede that, for some period of time, the League contrib-
(continued...)
No. 19-1349 5

plaintiffs, in March 2015, the League issued two emails to its
members promoting the so-called “Turnaround Agenda” of
then-Governor Bruce Rauner. The plaintiffs alleged that, on
March 4, the League sent an email “lobbying Illinois units of
government, urging them to adopt Illinois Governor Bruce
Rauner’s ‘Turnaround Agenda[.]’” R. 40, at 4. On March 23, the
League, “per Governor Rauner’s request, emailed Illinois units
of government a draft of ‘Governor Rauner’s Turnaround
Agenda Resolution.’” R. 40, at 5.
The March 23, 2015 IML email acknowledged
ongoing correspondence between the IML and
the Governor’s office, stating, “[t]he Governor’s
office has asked that we follow-up with mayors
and managers on the Turnaround Agenda
information and provide a resolution … that is
supportive of his administration’s effort to
address collective bargaining, unfunded man-
dates, prevailing wage requirements, workers’
compensation costs and legal empowerment
zones, among other things noted in the attach-
ment … [i]f you do adopt it locally, please send
me a copy electronically … and mail me a copy
to the Governor’s office …”

3
(...continued)
uted to political candidates of both major parties in Illinois but, citing that
same website on which the plaintiffs rely, note that the last such contribu-
tion was made in 2011, outside the two-year statute of limitations for a
section 1983 claim based on those contributions. The plaintiffs have not
disputed as a factual matter the timing of those payments or that they
occurred outside the statute of limitations.
6 No. 19-1349

R. 40, at 54 (all punctuation as it appears in ¶ 32 of the Com-
plaint). The plaintiffs also alleged that the League urged its
members to adopt local ordinances creating “right to work”
zones as part of the Turnaround Agenda. Lincolnshire was the
only unit of local government in Illinois to adopt a “right to
work” ordinance.5
The plaintiffs complain that, as tax-paying residents of
Lincolnshire, some of their money goes to support the Village’s
payment of dues to the League, thereby subsidizing private
speech with which the plaintiffs disagree. O’Brien demanded
a refund of the portion of his tax money that went to fund
Lincolnshire’s dues in the League, a demand that has gone
unanswered by the Village. Citing these allegations, the first
count of the Complaint asserted that Lincolnshire violated the
First Amendment rights of O’Brien and Cook by compelling
them to support private speech with which they disagreed. The
second count pled that Lincolnshire violated the First Amend-
ment rights of O’Brien, Cook and the members of their
respective Unions who reside in the Village by compelling

4
The March 23 email was sent by the League's Executive Director. R. 68,
at 4.

5
We invalidated that ordinance in International Union of Operating Engineers
Local 399 v. Village of Lincolnshire, 905 F.3d 995 (7th Cir. 2018). That decision
was subsequently vacated by a grant of certiorari by the Supreme Court,
which issued an order directing this court to remand the case to the district
court with instructions to dismiss the case as moot. See Village of Lincolnshire,
Ill. v. International Union of Operating Engineers Local 399, 139 S. Ct. 2692
(2019), and International Union of Operating Engineers Local 399 v. Village of
Lincolnshire, 773 Fed. Appx. 314 (7th Cir. 2019).
No. 19-1349 7

them to associate with the League. The third count asserted
that the Village violated the Equal Protection Clause of the
Fourteenth Amendment by compelling all of the plaintiffs to
support political activities with which they disagreed while
allowing some unnamed others to refuse to do so. For each of
these federal counts, the plaintiffs sought an injunction
preventing the Village from using tax revenue to fund the
League’s private speech, a declaration that Lincolnshire’s use
of taxpayer money to pay dues to the League violates the
federal rights of Cook and O’Brien, an order requiring
Lincolnshire to refund to Cook and O’Brien the portion of their
taxes used to fund the League, and other relief. The remaining
counts pled state law causes of actions against the Village and
the League which we need not address.
On the defendants’ motion, the district court dismissed the
federal claims and declined to exercise supplemental jurisdic-
tion over the state law claims. The court rejected the defen-
dants’ assertion that the plaintiffs lacked standing to bring
their claims, finding that they adequately alleged an injury-in-
fact as municipal taxpayers. See Hinrichs v. Speaker of House of
Representatives of Indiana General Assembly, 506 F.3d 584, 600 n.9
(7th Cir. 2007) (municipal taxpayer challenges to municipal
action are not subject to the same stringent standing require-
ments as state and federal taxpayers seeking to challenge state
and federal actions, respectively); Clay v. Fort Wayne Commu-
nity Schools, 76 F.3d 873, 879 (7th Cir. 1996) (municipal taxpay-
ers have standing when they object to a disbursement of funds
occasioned solely by the alleged unconstitutional conduct). But
the court concluded that the plaintiffs’ First Amendment
claims failed as a matter of law because the challenged
8 No. 19-1349

communications constituted government speech that is not
subject to First Amendment scrutiny. The court also found that
the Equal Protection claim failed as a matter of law because it
depended on the validity of the First Amendment claims. The
court dismissed the federal claims with prejudice and the state
law claims without prejudice. The plaintiffs appeal.
II.
On appeal, the plaintiffs contend that the district court
erred in dismissing their First Amendment claims for violation
of their speech and association rights as well as the Equal
Protection claim because Lincolnshire compelled them to
subsidize private speech on matters of substantial public
concern. They also contend that the district court abused its
discretion in dismissing the Complaint with prejudice. Finally,
they contend that the district court abused its discretion by
denying their post-judgment Rule 59(e) motion to convert the
dismissal to one without prejudice in order to allow them to
file a fourth amended complaint against Lincolnshire and the
League.
A.
We review de novo the district court’s decision to dismiss
claims pursuant to Rule 12(b)(6), accepting as true all
well-pleaded facts and drawing all reasonable inferences in
favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634,
645 (7th Cir. 2018); Ball v. City of Indianapolis, 760 F.3d 636,
642–43 (7th Cir. 2014). In addition to the allegations set forth in
the Complaint itself, we may consider “documents that are
attached to the complaint, documents that are central to the
complaint and are referred to in it, and information that is
No. 19-1349 9

properly subject to judicial notice.” Williamson, 714 F.3d at 436.
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
In the first two federal counts of the Complaint, the
plaintiffs alleged that the Village violated their First Amend-
ment rights by using their tax dollars to join the League,
thereby compelling them to subsidize the private speech of the
League and to associate with the League. In each instance, they
emphasized that the League is a private organization that
issued private speech with which they disagree. As we detailed
above, the objectionable speech consisted of emails from the
League to its own members purportedly encouraging them to
adopt then-Governor Rauner’s “Turnaround Agenda.” The
plaintiffs rely heavily on Janus v. American Federation of State,
County, and Municipal Employees, Council 31, 138 S. Ct. 2448
(2018), and other cases addressing compelled or subsidized
speech for the proposition that the government may not force
a citizen to subsidize private speech with which the citizen
disagrees. But Janus and the cases prohibiting the government
from compelling subsidies in support of private speech are a
poor fit for the federal counts alleged by the plaintiffs.
In Janus, the Supreme Court considered an Illinois law that
forced public employees to subsidize a union, even if they
chose not to join the union and strongly objected to the
positions that the union took in collective bargaining. 138 S. Ct.
at 2459–60. The Court concluded that the arrangement
“violates the free speech rights of nonmembers by compelling
10 No. 19-1349

them to subsidize private speech on matters of substantial
public concern.” Id. The Court noted that the First Amendment
protects both the right to speak freely and the right to refrain
from speaking. Janus, 138 S. Ct. at 2463. Likewise, the freedom
to associate encompasses the freedom not to associate. Id.
Although most free speech cases involve restrictions on what
could be said, “measures compelling speech are at least as
threatening.” Janus, 138 S.Ct. at 2464. Moreover, “[c]ompelling
a person to subsidize the speech of other private speakers raises
similar First Amendment concerns.” Janus, 138 S. Ct. at 2464
(emphasis in original). The Court ultimately concluded that
none of the interests set forth for compelling non-consenting
employees to subsidize the union could outweigh the First
Amendment rights of those employees. As is apparent from
this review of Janus, the plaintiff there was forced to subsidize
a private speaker, namely, the union, whose speech was con-
trolled by that private speaker and not by the government.
Janus did not address the difference between private speech
and government speech. It simply was not an issue in the case.
The plaintiffs relied on Janus to contend that they were
wrongfully compelled to support, through mandatory taxes
paid to Lincolnshire, the speech of the League, which they
characterized on appeal as a “private, third-party entity that
engaged in lobbying efforts that were initiated by other third
parties.” Brief of Appellants, at 17–18. They also cited Johanns
v. Livestock Marketing Association, 544 U.S. 550 (2005), and other
cases in arguing that the “government can violate the First
Amendment when it compels individuals to subsidize the
speech of a private party.” Brief of Appellants at 17. Johanns is
relevant to determining the outcome here, but not in the
No. 19-1349 11

manner that the plaintiffs urge. Rather, Johanns demonstrates
that the speech at issue in the Complaint is not private speech
but rather is government speech that is not subject to First
Amendment scrutiny.
In Johanns, the Court considered a First Amendment
challenge to the Beef Promotion and Research Act (“Beef Act”),
as implemented by the Secretary of Agriculture (“Secretary”)
through a Beef Promotion and Research Order (“Beef Order”).
The Beef Act announced a federal policy of promoting the
marketing and consumption of beef, using funds raised by an
assessment on cattle sales and importation. The statute
directed the Secretary to implement the Beef Order by appoint-
ing a Beef Board consisting of beef producers and importers,
and imposing a $1 per head assessment on all sales or importa-
tion of cattle. The Beef Board, in turn, created an Operating
Committee consisting of ten Beef Board members and ten
representatives named by a federation of state beef councils.
Although only half of the members of the Operating Commit-
tee were appointed by the Secretary, all were subject to
removal by the Secretary. The Operating Committee was
charged with designing promotional campaigns for beef
products, subject to the approval of the Secretary. Johanns, 544
U.S. at 553–54.
More than a billion dollars was collected through the
assessment and a large portion went to advertising promotions
such as the “Beef. It’s What’s for Dinner.” campaign. Associa-
tions of beef producers who were required to pay the assess-
ment sued the Secretary, objecting on First Amendment
grounds to the compelled subsidy of speech with which they
12 No. 19-1349

did not agree.6 The Court noted that “[i]n all of the cases
invalidating exactions to subsidize speech, the speech was, or
was presumed to be, that of an entity other than the govern-
ment itself.” Johanns, 544 U.S. at 559. And each of those
compelled subsidy cases respected the principle that com-
pelled support of a private association is fundamentally
different from compelled support of government. Johanns, 544
U.S. at 559 (citing Abood v. Detroit Board of Education, 431 U.S.
209, 259 n.13 (1977)). But:
“Compelled support of government”—even
those programs of government one does not
approve—is of course perfectly constitutional, as
every taxpayer must attest. And some govern-
ment programs involve, or entirely consist of,
advocating a position. “The government, as a
general rule, may support valid programs and
policies by taxes or other exactions binding on
protesting parties. Within this broader principle
it seems inevitable that funds raised by the
government will be spent for speech and other
expression to advocate and defend its own
policies.”
Johanns, 544 U.S. at 559 (quoting Board of Regents of University
of Wisconsin System v. Southworth, 529 U.S. 217, 229 (2000)).
Prior to Johanns, the Court had assumed, though not yet held,

6
Apparently, the beef producers objected to the promotion of beef as a
generic commodity, which they contended impeded their ability to promote
the superiority of particular kinds of beef, such as American beef, grain-fed
beef, or certified Angus or Hereford beef. Johanns, 544 U.S. at 556.
No. 19-1349 13

that compelled funding of government speech does not raise
First Amendment concerns. Johanns, 544 U.S. at 559. The issue
was thus whether the beef promotion advertising was govern-
ment speech.
The plaintiffs asserted that, because the content of the
speech was effectively controlled by a nongovernmental
entity—the Operating Committee—the advertisements could
not be considered government speech. The Court rejected the
premise of the argument and declined to consider whether the
Operating Committee was “governmental” or “nongovern-
mental.” 544 U.S. at 560 n.4. Instead, the Court concluded that
the message of the promotional campaigns was effectively
controlled by the government itself. Congress and the Secre-
tary “set out the overarching message and some of its ele-
ments, and they have left the development of the remaining
details to an entity whose members are answerable to the
Secretary (and in some cases appointed by him as well).” 544
U.S. at 561. Moreover, the Secretary exercised final approval
authority over the wording of the promotional campaign. All
of the messages were reviewed by government officials both
for substance and wording, and some were rewritten or
rejected. Government officials also attended and participated
in the meetings where proposals were developed. Further:
[w]hen, as here, the government sets the overall
message to be communicated and approves
every word that is disseminated, it is not pre-
cluded from relying on the government-speech
doctrine merely because it solicits assistance
from nongovernmental sources in developing
specific messages.
14 No. 19-1349

Johanns, 544 U.S. at 562.
The Court also rejected a contention that the beef program
did not qualify as government speech because it was funded
by a targeted assessment rather than by general revenues,
which, the plaintiffs argued, had the dual effect of giving
control not to politically accountable legislators but to a narrow
interest group, and also creating a perception that the adver-
tisements speak for all beef producers.
Citizens may challenge compelled support of
private speech, but have no First Amendment
right not to fund government speech. And that
is no less true when the funding is achieved
through targeted assessments devoted exclu-
sively to the program to which the assessed
citizens object.
Johanns, 544 U.S. at 562. It was enough that a federal statute
authorized the program and prescribed the basic message,
and specific requirements for the promotions’
content are imposed by federal regulations
promulgated after notice and comment. The
Secretary of Agriculture, a politically account-
able official, oversees the program, appoints and
dismisses the key personnel, and retains abso-
lute veto power over the advertisements’ con-
tent, right down to the wording. And Congress,
of course, retains oversight authority, not to
mention the ability to reform the program at any
time. No more is required.
No. 19-1349 15

Johanns, 544 U.S. at 563–64.
Following Johanns, the Court reiterated that the First
Amendment does not regulate government speech. See e.g.,
Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135
S. Ct. 2239, 2245 (2015); Pleasant Grove City, Utah v. Summum,
555 U.S. 460, 467 (2009). “A government entity has the right to
‘speak for itself.’” Pleasant Grove, 555 U.S. at 467 (quoting
Southworth, 529 U.S. at 229). A government may say what it
wishes and select the viewpoints that it wants to express.
Pleasant Grove, 555 U.S. at 467–68. See also Walker, 135 S.Ct. at
2245 (when the government speaks, it is not barred by the First
Amendment from determining the content of what it says).
Indeed, it is not easy to imagine how govern-
ment could function if it lacked this freedom. If
every citizen were to have a right to insist that
no one paid by public funds express a view with
which he disagreed, debate over issues of great
concern to the public would be limited to those
in the private sector, and the process of govern-
ment as we know it radically transformed.
Pleasant Grove, 555 U.S. at 468 (internal quotation marks and
citations omitted). See also Walker, 135 S. Ct. at 2246 (noting that
a city government must have the freedom to choose its
message in order to promote its preferred programs such as
recycling). Echoing Johanns, the Court said that a “government
entity may exercise this same freedom to express its views
when it receives assistance from private sources for the
purpose of delivering a government-controlled message.”
Pleasant Grove, 555 U.S. at 468. Government speech is not
16 No. 19-1349

limitless; it must comport, for example, with the Establishment
Clause. And it is subject to the check of political process, where
objecting citizens may hold public officials to account through
the ballot box. Pleasant Grove, 555 U.S. at 468–69. “But, as a
general matter, when the government speaks it is entitled to
promote a program, to espouse a policy, or to take a position.
In doing so, it represents its citizens and it carries out its duties
on their behalf.” Walker, 135 S. Ct. at 2246.
With these principles in mind, we turn to the salient facts
alleged in the Complaint as supplemented by the documents
that are attached to the complaint. Lincolnshire is the only
defendant named in the three federal counts, and relief is
sought from Lincolnshire alone. The only bad act alleged is the
Village’s statutorily authorized voluntary use of taxpayer
funds to join the League, a purportedly private organization,
which in turn issued the speech that offended the plaintiffs.
The central question is whether, in joining the League, the
Village has compelled the plaintiffs to subsidize private speech
or that of the government itself.7

7
Although the Complaint alleged that the offending speech came in the
form of emails issued by the League itself, in briefing on appeal, the
plaintiffs added that other, private third parties controlled the message.
During oral argument, the plaintiffs identified the private third parties as
the League’s Executive Director who sent the emails, then-Governor Rauner
and an outside consultant. None of this purportedly third-party control of
the League’s speech was alleged in the Complaint. As the district court
found, the Complaint alleged no private control over the message. The
Complaint instead asserted only that the League is a private organization,
which is not a decisive factor under Johanns as we discuss infra.
No. 19-1349 17

According to the Complaint, the Bylaws attached to the
Complaint, and Illinois law, the League itself is an unincorpo-
rated association whose membership is composed entirely of
cities, villages and incorporated towns of Illinois.8 In other
words, it is composed entirely of local governments. Its Bylaws
establish that it is run by a Board of Directors that consists
entirely of the highest elected officials of member govern-
ments. Illinois law provides that local governments may join
the League if they wish and pay the applicable dues and fees,
and so it is a voluntary association. 65 ILCS 5/1-8-1. That same
statute provides that the “member cities, villages and incorpo-
rated towns acting by, through and in the name of such instrumen-
tality may provide and disseminate information and research
services, and may do all other acts for the purpose of improv-
ing local government.” As a member, Lincolnshire thus acts by
and through the League in issuing messages for the purpose of

8
Illinois law provides that a “voluntary unincorporated association may
sue and be sued in its own name, and may complain and defend in all
actions. For the purposes of this Code, ‘voluntary unincorporated associa-
tion’ means any organization of 2 or more individuals formed for a
common purpose, excluding a partnership or corporation.” 735 ILCS 5/2-
209.1. Illinois case law indicates that the bylaws of a voluntary association
create a contract between the association and its members. Lo v. Provena
Covenant Medical Center, 826 N.E.2d 592, 598 (Ill. App. 2005). That same case,
citing Black’s Law Dictionary, likened a voluntary association to an
unincorporated business organization that is not a legal entity separate from
the persons who compose it. Id. See also Pecoraro v. Balkonis, 891 N.E.2d 484,
492 (Ill. App. 2008) (noting that “nonprofit association” means an unincor-
porated organization consisting of two or more members by mutual consent
for a common, nonprofit purpose, and concluding that individual members
may not be held liable in tort for acts of the association unless they
participated in or ratified the actions that caused injury).
18 No. 19-1349

improving local government. The decision to join – to associate
with – the League is controlled entirely by the Village, and
membership both allows Village control over the League’s
messages and signals a willingness to speak through the
League. Under Johanns, Walker, and Pleasant Grove, plaintiffs’
taxpayer funds thus supported Lincolnshire’s action and
Lincolnshire’s speech.
Although the parties dispute whether the League may be
characterized as a private or governmental organization, such
a designation is not determinative of whether the plaintiffs
have been compelled to subsidize private speech.9 Johanns, 544
U.S. at 560 & n.4 (declining to consider whether the Operating
Committee was “governmental” or “nongovernmental” and
instead turning to whether the message of the promotional
campaigns was effectively controlled by the government itself).
Based on the plaintiffs’ own allegations, the conduct of joining
the League and the message at issue here are ultimately
controlled by the government of Lincolnshire itself and also by
the League’s other governmental members. That the Village

9
In its answer to an earlier version of the complaint, Lincolnshire admitted
that the League is a private organization. Although it subsequently sought
to distance itself from that admission by contending without authority that
its admission was somehow superceded by the filing of a subsequent
complaint, the Village never withdrew its concession in the district court.
Lincolnshire’s admission is not binding on the League, which made no
similar admission and characterizes itself as a “quasi-governmental”
association. We need not decide whether the League is private, governmen-
tal, or “quasi-governmental” because the determinative factor is not the
nature of the League but whether the government ultimately controlled the
speech.
No. 19-1349 19

and other municipal members used the League (or any third
party) to craft a particular message does not deprive the speech
of its government ownership. See Johanns, 544 U.S. at 562;
Pleasant Grove, 555 U.S. at 468. By the plaintiffs’ own allega-
tions, both the statute authorizing membership and the Bylaws
provide that the League is an instrumentality of local govern-
ments which may act through the League to disseminate
information and engage in acts to improve local government.
65 ILCS 5/1-8-1; Bylaws, R. 40-1, at 2.
Lincolnshire itself, which the plaintiffs agree (as they must)
has the right to speak for itself and also a right to associate,
voluntarily joined the League as it is authorized to do by
statute. As a member, Lincolnshire could adopt the speech of
the League if it wished or could denounce the speech or leave
the League at any time if it disagreed with the message issued.
But as the plaintiffs pled, Lincolnshire was unique in Illinois in
its whole-hearted adoption of the League’s promotion of the
Governor’s Turnaround Agenda. It was the only unit of local
government to adopt an ordinance legalizing local “right to
work zones,” as promoted in the Turnaround Agenda. Al-
though the plaintiffs vehemently disagree with the Turn-
around Agenda, they cannot plausibly claim that
Lincolnshire—by itself or through an association of local
governments—lacked the right to speak and to take a position
on that Agenda.
Indeed, the plaintiffs conceded at oral argument that if the
League had acted as described in the statute, the speech at
issue would properly be characterized as government speech
that is not subject to First Amendment scrutiny. The problem,
they assert, is that the League exceeded the scope of its
20 No. 19-1349

authority by engaging in “political” lobbying activity when the
statute described the League as a “nonpolitical” association,
and also that the League did not operate according to its
Bylaws but was instead subject to the outside influence of
private third parties. Although the plaintiffs did not allege this
interference in the Complaint, they now assert that, contrary to
the Bylaws, the Board did not control the Executive Director,
and that the Executive Director was acting in concert with the
Governor and an outside consultant in lobbying members to
adopt the Governor’s agenda.
It is true that the statute describes the League as “nonpoliti-
cal,” but the entire purpose of the League is to act as an
instrumentality of its governmental members in order to
“provide and disseminate information and research services,
and … do all other acts for the purpose of improving local
government,” all of which can be described as political acts in
the sense that they are related to government and governing.10
See Concise Oxford English Dictionary, Oxford University
Press, Eleventh Edition (2004) (defining “political” as “relating
to the government or public affairs of a country”). It is difficult
to see how the League could accomplish its purpose as
described by statute unless it could lobby its own members
and the state legislature on issues related to improving local
government. To adopt the plaintiffs’ definition of the word

10
In context, the word “nonpolitical” likely means nonpartisan, a definition
that would be consistent with and give effect to the other provisions of the
statute. Nonprofit organizations such as the League may not engage in
partisan activities. 26 U.S.C. § 501(c)(3). We emphasize again that, to the
extent the League engaged in partisan donations to candidates, it indisput-
ably did so outside the statute of limitations.
No. 19-1349 21

“nonpolitical” would render the remainder of the Illinois
statute nonsensical and inert. As the Supreme Court held,
“when the government speaks it is entitled to promote a
program, to espouse a policy, or to take a position. In doing so,
it represents its citizens and it carries out its duties on their
behalf.” Walker, 135 S. Ct. at 2246. The government is entitled
to select the viewpoints that it wants to express. Pleasant Grove,
555 U.S. at 467–68. The same is no less true when a municipal-
ity voluntarily joins an association of local governments, which
were doing nothing more than speaking among themselves
and taking actions that local governments have a right to take.
As the Supreme Court also noted, it is difficult to see how local
governments could operate unless they were allowed to
discuss, either directly or through a surrogate, ideas related to
municipal government, regardless of where those ideas
originated.
As for the new allegations that the Board did not actually
control the message but allowed the Executive Director to craft
the message with the influence of third parties, the plaintiffs do
not dispute that, had the Executive Director engaged in rogue
actions beyond his authority or with which the Board dis-
agreed, the Board was entitled to remove him, and all mem-
bers were within their rights to denounce the message and
withdraw from the voluntary association.11 Lincolnshire did
not denounce the message or terminate its membership in the

11
Under the Bylaws of the League, the Executive Director is responsible for
legislative and legal activities under the supervision of the Board of
Directors. The Executive Director’s actions are subject to the control of the
Board, which may remove the Executive Director at any time.
22 No. 19-1349

League; according to the plaintiffs’ own allegations, it was the
one unit of local government in Illinois that endorsed the
offending message fully. In essence, as alleged in the Com-
plaint, Lincolnshire adopted the message, as it is entitled to do.
Any input from the Executive Director, the Governor or any
other third party could not change the nature of the speech
because Lincolnshire retained ultimate control over the
message itself. Pleasant Grove, 555 U.S. at 468 (a “government
entity may exercise this same freedom to express its views
when it receives assistance from private sources for the
purpose of delivering a government-controlled message.”).
In short, the facts alleged here bear no resemblance to Janus,
where the plaintiffs alleged that they were compelled to
support private speech issued by unions and not controlled by
the government. The plaintiffs here pled themselves out of
court when they alleged that Lincolnshire did nothing more
than join the League, a voluntary association of local govern-
ments, an act it has every right to do, and that the League
issued speech to its own members, under Bylaws that ex-
pressly gave the League’s governmental members ultimate
control over the association’s message. The plaintiffs failed to
allege private control of the speech; they instead pled facts that
conclusively demonstrated that the conduct and messages at
issue were governmental speech and association not subject to
First Amendment scrutiny.
The viability of the plaintiffs’ Equal Protection claim
depends on the validity of the First Amendment claims.
Because Lincolnshire did not violate the plaintiffs’ rights under
the First Amendment, the Equal Protection claim fails as well.
No. 19-1349 23

And the district court did not abuse its discretion by declining
to exercise supplemental jurisdiction over the state law claims.
B.
The plaintiffs next argue that the court erred by dismissing
the federal claims with prejudice, and by denying their Rule
59(e) motion to reconsider in order to allow them to seek leave
to file a Fourth Amended Complaint. In particular, the plain-
tiffs contend that they should have been allowed an opportu-
nity to amend because the Complaint that the court dismissed
was the first one to include the League as a defendant. We
review a district court’s denial of a Rule 59(e) motion for
reconsideration and denial of a motion for leave to amend for
abuse of discretion. NewSpin Sports, LLC v. Arrow Electronics,
Inc., 910 F.3d 293, 300 (7th Cir. 2018). Ordinarily, after an
original complaint is dismissed under Rule 12(b)(6), a court
should allow at least one opportunity to amend the complaint
before dismissing the entire action. NewSpin Sports, 910 F.3d at
310; Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago. &
Northwest Ind., 786 F.3d 510, 519 (7th Cir. 2015). On a plaintiff’s
request to amend, the court should “freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2).
In the absence of any apparent or declared
reason—such as undue delay, bad faith or
dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amend-
ments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.—the
leave sought should, as the rules require, be
24 No. 19-1349

‘freely given.’ Of course, the grant or denial of
an opportunity to amend is within the discretion
of the District Court, but outright refusal to
grant the leave without any justifying reason
appearing for the denial is not an exercise of
discretion; it is merely abuse of that discretion
and inconsistent with the spirit of the Federal
Rules.
Foman v. Davis, 371 U.S. 178, 182 (1962).
However, once a district court has entered final judgment
dismissing a case, the plaintiff may not amend under Rule
15(a) unless the judgment is modified, either by the district
court under Rule 59(e) or 60(b), or on appeal. NewSpin Sports,
910 F.3d at 310; Runnion, 786 F.3d at 521. Although Rules 59(e)
and 60(b) provide extraordinary remedies for exceptional
circumstances, we review post-judgment motions for leave to
amend according to the Rule 15 standard when a district court
enters judgment at the same time it first dismisses a case.
NewSpin Sports, 910 F.3d at 310; Runnion, 786 F.3d at 521;
Gonzalez- Koeneke v. West, 791 F.3d 801, 808 (7th Cir. 2015).
Thus, when the “district court has taken the unusual step of
entering judgment at the same time it dismisses the complaint,
the court need not find other extraordinary circumstances and
must still apply the liberal standard for amending pleadings
under Rule 15(a)(2).” Runnion, 786 F.3d at 521.
In this case, the district court used the higher standard of
Rule 59(e) when deciding the motions to alter or amend the
judgment and for leave to amend the complaint. The court
should have applied the more generous Rule 15(a) standard
No. 19-1349 25

but it is apparent from the court’s order and from the record
that, ultimately, the court did not abuse its discretion. A review
of the history of the proceedings makes this clear.
O’Brien and his union filed the first complaint against
Lincolnshire on February 21, 2018, raising the same federal
claims that are at issue here. A week later, prior to the filing of
an answer, O’Brien and his union filed an amended complaint
containing additional factual allegations and further explana-
tion of the legal basis of the constitutional claims. In March
2018, Lincolnshire answered the amended complaint, and in
May, the plaintiffs moved for leave to file a second amended
complaint in order to add Cook and his union as plaintiffs. The
court granted that motion, and two weeks later, on May 21,
2018, Lincolnshire moved to dismiss the second amended
complaint. In that motion, the Village challenged the plaintiffs’
standing and also argued that the payment of dues to the
League and the adoption of the League’s speech constituted
government speech and association that was not subject to
First Amendment review.
The day after Lincolnshire filed its motion to dismiss, the
district court advised the plaintiffs to review the court’s
Standing Order regarding motions to dismiss, and elect either
to amend their most recent complaint or proceed with briefing
on the motion to dismiss:
When a motion to dismiss is filed, the
non-moving party has a right to amend its
pleading once within 21 days. Fed. R. Civ. P.
15(a)(1)(B). If the non-moving party elects not to
amend its pleading to address the purported
26 No. 19-1349

deficiencies raised by the motion (or seek leave
to amend its pleading again), then the motion to
dismiss will proceed in its normal course and, if
the moving party prevails, the Court may dis-
miss the case with prejudice and not provide
further opportunity to amend the pleading
absent extraordinary circumstances. If the
non-moving party amends its pleading, then the
moving party (unless ordered otherwise by the
Court) shall file within 21 days of the amended
pleading either: (1) an answer or (2) a new
motion to dismiss.
Standing Order of Judge John Robert Blakey,
https://www.ilnd.uscourts.gov/judge-info.aspx?RxIItJ+3ldN9
9GnKt+Q4wg== (last visited March 19, 2020). Part of this
Standing Order was problematic. “A district court does not
have the discretion to remove the liberal amendment standard
by standing order or other mechanisms requiring plaintiffs to
propose amendments before the court rules on a Rule 12(b)(6)
motion on pain of forfeiture of the right to amend.” Runnion,
786 F.3d at 523 n.3. But the Standing Order helpfully alerted
the plaintiffs of their right to amend under Rule 15.
The plaintiffs elected to amend and filed their Third
Amended Complaint (the Complaint at issue in this appeal) on
June 19, 2018. The Complaint contained new factual allegations
related to standing, and added two state law counts. One of
those new counts was filed against the League, the first time
the League was named as a defendant in the case. On August
3, the defendants moved jointly to dismiss the Complaint. In
that motion, they argued that the plaintiffs lacked standing to
No. 19-1349 27

bring the First Amendment claims. They also again contended
that the First Amendment does not regulate the Village’s
speech through the League or its association with the League.
Citing Johanns, Pleasant Grove and other cases, they argued that
the speech at issue was the Village’s own government speech.
They noted Lincolnshire’s right to voluntarily associate with
the League and to adopt particular viewpoints with which
some citizens might disagree. They urged the court to reject
any argument that the League was a private organization,
noting that it was an association that consisted entirely of local
governments, and that the association was not a legal entity
separate from its members. But they also urged the court not
to assign conclusive importance to the claim that the League
was a private organization because Lincolnshire had volun-
tarily joined the association knowing the League’s purpose,
mission and message, and could leave it any time. Its choice to
be a member was thus an exercise of Lincolnshire’s own First
Amendment expressive association rights regardless of the
private character of any group it joined. Arguing that the
Supreme Court had at least thrice found that speech designed
by private parties was government speech under analogous
circumstances, the defendants contended that the Village’s
voluntary membership in the League was itself government
speech that was not subject to First Amendment scrutiny. R. 51,
Memorandum in Support of Joint Motion to Dismiss, at 9–10.
See also Pleasant Grove, 555 U.S. at 481; Johanns, 544 U.S. at 562;
and Walker, 135 S. Ct. at 2251. The defendants maintained that
the Equal Protection claim failed for multiple reasons, includ-
ing because it was tied to the legitimacy of the First Amend-
28 No. 19-1349

ment claims. Finally, the defendants asked the court to decline
to exercise supplemental jurisdiction over the state law claims.
The plaintiffs did not seek leave to amend the Complaint
again but instead responded to the motion to dismiss. In that
response, the plaintiffs asked only that the court deny the
motion; they did not request in the alternative for leave to
amend the Complaint. The court heard oral argument on the
motion to dismiss on September 13 and took the motion under
advisement. At the same time, discovery proceeded and the
plaintiffs gathered additional information about the League
through documents and depositions, including the deposition
of the League’s Executive Director. Discovery was set to close
on December 5, 2018. On November 29, the court held a
hearing related to discovery issues. At that hearing, “Plaintiffs’
counsel admitted that nothing in the discovery would change
how they drafted the [Complaint], and thus it would fall or
stand on its allegations at that time.” R. 93, at 6–7 (Memoran-
dum Opinion and Order, Jan. 24, 2019). On December 7, 2018,
the court granted the defendants’ motion to dismiss the
Complaint with prejudice and declined to exercise supplemen-
tal jurisdiction over the state law claims. The plaintiffs then
filed a Rule 59(e) motion seeking to convert the dismissal to
one without prejudice based upon newly discovered evidence.
In the motion, the plaintiffs indicated their intention to request
leave to file a fourth amended complaint if the court granted
the Rule 59(e) motion. They also sought clarification that the
state law counts had been dismissed without prejudice.
In its ruling on those motions, the district court clarified
that the state law claims were dismissed without prejudice.
Although the court erroneously applied the Rule 59(e) stan-
No. 19-1349 29

dard to both the motion to alter or amend the judgment and
the motion for leave to amend the Complaint, the reasoning
demonstrates that the court did not abuse its discretion in
denying the motions. The court found that the so-called newly
discovered evidence had in fact been in the plaintiffs’ posses-
sion for more than three weeks before the court ruled on the
motion to dismiss. Importantly, the plaintiffs possessed all of
this information before counsel assured the court that nothing
in the discovery would cause them to amend the Complaint
and that the plaintiffs’ claims would fall or stand on the
allegations at that time. Although the plaintiffs now dispute
the court’s characterization of what counsel said at the Novem-
ber 29 hearing, the plaintiffs have failed to place the transcript
of that hearing in the record. See Fed. R. App. P. 10(b)(2) (“If
the appellant intends to urge on appeal that a finding or
conclusion is unsupported by the evidence or is contrary to the
evidence, the appellant must include in the record a transcript
of all evidence relevant to that finding or conclusion.”). We
therefore have no reason to question the court’s characteriza-
tion of that hearing. We take the court at its word that the
plaintiffs expressed an intention for their Complaint to fall or
stand on the allegations as drafted. Dupree v. Hardy, 859 F.3d
458, 463 (7th Cir. 2017) (noting that we cannot meaningfully
review a decision where the appellant has not provided a
transcript of the hearing in which the court explained its
reasons for denying the motion); Morisch v. United States, 653
F.3d 522, 529 (7th Cir. 2011) (a violation of Rule 10(b)(2) is
grounds for forfeiture and dismissal). The court also rejected
as irrelevant the plaintiffs’ assertion that they intended to file
a motion for summary judgment before the court’s deadline for
30 No. 19-1349

dispositive motions (December 14, 2018) rather than seeking
leave to amend the Complaint. The court found that this was
a procedural failing based on a strategic choice that could not
justify the grant of a Rule 59(e) motion.
In discussing the new evidence and allegations that the
plaintiffs wished to add to a fourth amended complaint, the
court repeatedly noted that the plaintiffs had not explained
how any of this evidence was relevant to the government
speech doctrine. Although the court did not use the word
“futile” in describing the proposed additions to the Complaint,
it is clear that the court found that none of the new allegations
would alter the outcome of its ruling on the motion to dismiss
because none of the new evidence affected the government
speech analysis. In other words, the proposed amendments
would be futile.
The Complaint that the court dismissed was the fourth
complaint that the plaintiffs lodged against Lincolnshire, but
the first complaint filed against the League. But the only count
against the League was a state law claim that the court dis-
missed without prejudice, declining to exercise supplemental
jurisdiction over both state law claims. As is apparent from this
record, this is not an instance where a plaintiff lacked an
opportunity to amend. The plaintiffs had already been granted
leave to amend the federal counts asserted against Lincolnshire
(the only counts dismissed with prejudice here) after the first
motion to dismiss. The second motion to dismiss largely
echoed the first, and so the plaintiffs were fully aware of the
import of the government speech doctrine when they filed the
Third Amended Complaint, the one at issue in this appeal.
None of the amendments in the proposed Fourth Amended
No. 19-1349 31

Complaint would cure the defects that led to dismissal of the
Third Amended Complaint. Moreover, when the defendants
filed their September 3 joint motion to dismiss, the plaintiffs
asked the court only to deny the motion, and did not request
in the alternative for leave to amend the Complaint again. They
also assured the court at the November 29 discovery hearing
that they had no intention of seeking leave to amend based on
any of the evidence they uncovered in discovery. Although
they now assert that the defendants raised new issues that they
did not anticipate regarding the public nature of the League
and the League’s own right to issue its own government
speech, all of this was apparent by November 29, and none of
it could change the outcome of the motion to dismiss. In this
context, we conclude that the district court did not abuse its
discretion in dismissing the federal counts with prejudice, and
denying both the Rule 59(e) motion and the motion for leave to
amend the Complaint.
AFFIRMED.