the chicago regional council carpenters the fountains your honors this case is about whether the taxpayers rd amended complaint against the village of lincoln shire and the illinois municipal league for their constitutional violations and alter various conduct was appropriately dismissed with prejudice and whether the taxpayer's motion to alter or amend in order to file an amended complaint was appropriately denied the taxpayer's respectfully asked this court to reverse the district because it district court abused its discretion when it dismissed the rd minute complaint with prejudice which was the st complaint filed against the i am now the st complaint dismissed in this case and contained novel legal issues which were being clarify because it wasn't crystal clear from your briefing are you withdrawing mr o'brian as an individual plaintiff as to the injunctive relief and just leaving him in for monetary really purposes given that he no longer lives in the village correct thank you and let me start you off please if lincoln shirt itself issued  the same speech that i am now released would you agree that this would be a government speech that is not subject  to st amendment scrutiny if i understand your question correctly yes it would if for instance the village of lincoln shire sent out an e mail similar to what the i'm all did in this case that i think that that would be government speech why does it matter that lincolnshire joined with other municipalities to end the message through the i am now as alleged in the thirty minute chooses to use a private party to issue the speech does that mean that it's no longer government speech so i think depending on the  as there it is government speech however if a private party is involved and the government is subsidizing the speech of that private party than the analysis under united foods and johanns requires that speech either be part of a  broader regulatory scheme or that the government control the speech from beginning to and as was the case in both johan's and adams of the main units will associate in which the district court judge relied on but as alleged and both a thirty minute complaint and the th many complain the government had no control over the speech but a government can hire an advertising agency for example to craft a message so long as the government is an ultimate control of the speech isn't government speech if those were the facts then it would be government speech as i and johanns case that the government's that kind of initial generic message then supervised the creation of the message and that approved the final wording of the message so had control of the message from and however in this case again as as the the complaints the minutes will members had no control they did not approve the message or broadly support gov hours turn around agenda they were not involved overseeing the crafting of the message and did not approve the message before it was distributed to its minutes will members again all of the cost to the taxpayer claims case but i thought you i thought you allege pretty clearly that in your view the speaker is i am now and i am mel is a is a private entity you know as you emphasize and you're not alleging that the speaker is a media consultant or you know a private employee or anything like that is not understanding correct amended complaint is in association of a one thousand minas apologies and everyone knows that municipalities are going to draw upon consultants and advisers and assistants and all kinds of folks so the fact that the message may have been you know crafted by somebody that wasn't an employee of one of the municipalities i don't like lies that neither here nor there if you're alleging the speaker's i and l and if if one government speaks it's government speech i don't know how it's any different if a one thousand governments come together and they all they they talk hypothetically about how the how the i am alice supposed to work that there is a legislative committee that member minutes tallies participate and sit on they come up with the messaging then that gets approved or sent up to the board of directors and they approve the topics to advocate for the messages to distribute none of that happened and so none of the member unit member municipalities participated it was governor around her and the executive director and as we they just came up with the statutory provision that allows us felonies to to become members of and pay dues to the i am now is very specific on the role of the i am now how it's supposed to work nonpolitical may distribute information on behalf of its municipal members but there is no statutory mechanism that created the i am now than i was in existence before the municipal code was amended to allow  let me let me ask you to focus on set the village of lincoln shire aside entirely ok just ignore them in focus just on i m l as a defendant how do you have stopping sending out messages on behalf of rd parties without the uniform numbers that make sense though so on the basis of a few tax payers in the village of lincoln shire the illinois hum municipal league composed of a one thousand enos apologies or thereabouts would it would have to stop disseminating messages because they're found offensive to a few residents of a particular village well i think that goes back alice acting outside the statutory powers as we allege than the injunctive relief could be applied to the i am out with respect to sending out messages that are not approved by the opportunity to hear on the motion just to dismiss but if to be an uncivil members for the i am now as permitted by by statute is distributing information on behalf of it's been in civil members and other words lincoln shire sends the i'm on message says you know we think this is a good idea it would improve local government and then the i am not distribute that message to its members and that probably would be government speech so what is your meal complaint  but your statement in the brief the judge rose from there just identified how can we pull that out of the rd it meant a complaint which is what was at issue so in the thirty minute complaint paragraph seventeen dollars forty one  now is a private and that allegation would pull it in the government speech analysis away from government speech and then require control by the units will members from beginning to end because i don't think there's been any argument a all that this is part of a broader regulatory scheme but you allege anywhere what you argued in your brief not that it's a private entity but that it was controlled by the executive director who was not associated with any of the yes it paragraphs thirty through thirty four dollars not that explicitly and we tried to clean that up a bit in our th men and complain and and with additional evidence we gathered but three thousand and thirty four dollars talks about the specific conduct that we object to that there but i think that's a separate question then who is controlling it you've argued that the executive director who was not affiliated with the municipality had the control here complaint looking at those paragraphs says that it was i am mel who sent that out so somehow you think we should pull that it was the executive director if the i'm almost certain that the mail but the allegations don't say anything about brand cool who he is i have the attached e mail and you're correct it was attached but it says brad cole executive director but there's nothing saying who the executive director is or why the executive director is not part of one of the municipality and that this stage of the of the briefing the private mean in fairness to the st two amended complaints were the st was done very quickly after the filing of the st complaint just to add a few facts and the nd was to add parties that mr cook and the and the carpenters there was no changes in allegations and in response to that complaint there was no challenge to government speech by the i meant it was an issue in the case so when by the time the rd american plane rolled around we dress that issue head on funding the i am now for what we would say is an on off rise purpose and that's count four of the rd many complained which really isn't at issue here that the i am alice acting outside the scope of it statutory authorization therefore the village of lincoln sh can't fund that organization because it becomes something different now than it was when the statute authorized the bills to this deposit i'm sorry i had to try and i forgive me but i'm not sure i understand what you're saying you're saying that's not at issue here but i will correct so that the complaint against the building when the shire on these facts before the courts today is whether or not they can help  i have one more question on the amended complaint question issue and going into your rebuttal time i'm sorry but you dispute the district court judge just characterization of a representation that you allegedly made th two thousand and eighteen motion to compel a hearing where the district court judge found that you made a certain representation that you didn't need to amend the complaint you have argued that the judge mischaracterized what you said i can't find a transcript in the record is there a transcript anywhere and if they're not how can we do anything but defer to what the district court judge that we don't don't have the facts before us the transcript is not  this is it your cat bearcat for cats good morning practice counsel if that please the court i'm laura linney bearcat from brownian stevens in springfield illinois and i represent the village of lincoln and the illinois municipal league in this case and please pardon me for the throat clearing thing that time of year and throughout this argument i will be referring to plaintiffs collectively as the unions and i include in the individual plaintiffs of course what we have to do here today is look at the rd amended complaint which was actually the th complaint so there was a complaint and that was the rd amended complaint to see  are sufficient allegations to state a claim for st amendment and equal protection by aleisha and they do allege that i m l is a private organization but they also allege and incorporate that the village is a member and expressly authorized to be a member by section one dash eight dash one of the municipal code in addition they attach the unions attach the bylaws of the i am male at paragraph twenty municipal members may disseminate information provide research research services and do all other acts to improve local government through this instrument tal municipalities are the that's the only category of membership so are you disputing that i am not as a private entity i think it is a quasi i governmental entity we and that was made only by the village of lancashire it was made in response to the st amended complaint by the time we got to the rd amended complaint i am ill had been joined and what happened rather than answering that rd amended complaint the village of lincoln shared jointly move to dismiss it but the answer is still an admission by the village but i don't think it's an admission  same allegation it has the same allegation i will grant that i can't undo i can't unring that bell but what i am saying is that it did not admit any facts it did what the admission is really a question of law and that question of law it has to be answered by this court the facts are alleged in the complaint that helps the court do that and those facts are found in the bylaws and in section one hundred and one of the municipal officers of the i m f doesn't matter for the government speech doctor and if it's a question of law if i am male is a private entity it does not matter for the government speech dr and why not because as as the court remarked earlier if my hometown of springfield hired her p r firm and put out all sorts of speech on what a great place it is to live to attract residents there that is now springfield speech it's not the we can make you look good firm speech it's brutal speech so the fact that it originates with a private entity isn't does not answer the question it's what the public body does with it in this case we're talking about speech that came from the governor's office and i want to stop here for a moment to it's been this idea that this speech came from some rd party outside of government of illinois it was from a sitting governor and while his opinions may chafe all the union members greatly hip was still government speech it didn't lose that character as it moved through the eye and them nor did it lose that character way and the village of lincoln shire adopted the turnaround agenda that came from governor's office when they adopted the right to work ordinance that also came from the governor's office and when they paid their dues to the i m l to be a part of the message that comes from the i am so there was government speech from the get go now i will also make a point that we recognize that there are some other aspects of speech that the union has complained about in their rd amended complaint they say that contributions were made we address that the i am male did make contributions a village could not make a contribution to a particular party or a particular candidate and if the statute of limitations had not run we would probably be looking at something else but the executive director stopped the nude brad cole the executive director stop that practice and within the time of the statute of limitations there been no contributions whatsoever to any candidate or cos membership dues have been paid fees to go to different programs for their  employees for i am elp employees that has been paid but those are not contributions i am receive something of value for those contributions are as we know something you give away without expectation of something  return or at least america's most but you believe the plaintiffs have standing to sue i am hours of stand alone no your honor honestly i was just a little red in the face when you started on that because i know i should raise  that i don't think they do have standing i think the only groups who are standing with regard to the i am now would be a member mute eunice a pallet who is objecting to how the i am now is being run like somehow it's gotten away from the municipal member the directors don't know what's happening that sort of thing but none of that is occurring and in the allegations of the rd amended complaint we see that the  executive director is appointed by the board of directors sits at the pleasure of the board of directors and is directed is under the general direction of the board of directors all of whom are the primary elected official of their respective municipality the other thing to that is i mean it's an interesting question because associations don't have any separate existence they don't have a they're not incorporated   thing like that we have bylaws here so it exists but it doesn't exist independently of its members and all of its members are governmental entities it's not the mayor who is a member of i am l or the chief or maybe one of the ultimate alderman they aren't the members it exists as an entity right i mean presumably could enter into a contract to lease office space it does have entity stands yes it can do that but as an entity it is a ability of taxpayers to just agree with speech at the ballot box but when a message is cured through an association of municipalities would that be an affective remedy it seems to me that all the tax payers can do with the ballot box is a jack not to the speech but t membership in the i am l that seems like a watered down unless you disagree with that i know i mean it is the case in in government speech you can't  can lobby on any any subject matter including membership in the i am now that's volunteering membership and if they want to field a field of candidates for the village of lincoln shire who would is to the opportunity to become part of such a beneficial and it would then they could do that but that hasn't happened we don't we don't know there's no factual record on this but suppose this afternoon the i m l issues a highly controversial message on some you know hot policy issue or what have you is there anything that would prevent the village of lincoln shire from issuing a press release saying we we actually respectfully disagree we take just the opposite view absolutely not you could do it at any time and that is that that's one of the that's a fine point in this case and one that kind of gets glossed over so i appreciate your raising it the village here wholeheartedly adopted the speech the turn around agenda it supported governor around the unions don't want that the union members didn't like that but the village could do that and they could vote all the village people out the next time around who supported the right to work so they passed their own right to work so ordinance that cases been in front of the seven service so marquette is this a question that can be resolved at the motion to dismiss stage the cases that you rely on most heavily johanson adams had developed factual records adams came after a bench trial joe hans came after summary judgment we don't have those facts developed here i know some discovery took place and some was incorporated into the rd of to conflate but is this something we can decide at the motion to dismiss stage and are there any cases out there where this issue has been decided at the pleading stage i have not seen any cases where it's been cited that stage no but i think here on this record what we had was a lot more than you usually had before the court there when motions were filed in response to the motion to dismiss there were things attached when the rule fifty nine emotions were piled there were things attached there was a lot of the record was in the record even though it was still at the pleading stage what you may have things attached with the by laws and the particular e mails at issue but that certainly can't replace a fully developed summary judgment record with deposition supplements except so how is it that we can under should decide this case at this stage because i think there is this is one of those cases where as a matter of law it's quite clear that they cannot it's not while it's not created by the government in that sense it's not a governmental entity it is an association comprised entirely of governmental entities i cannot see how at each emanating from there would be anything government speech correct yes it's the i am now in the in the statute is described as an instrument tell of the of the municipal members if it is in fact if you look at all of the allegations that were added to the complaint they proffered with their rule fifty nine dollars easy motion there they are just details the complaint itself is the same complaint as the  amended complaint that there are details added but as as plain just point out to us many times this is a fact leaving jurisdiction or another splitting jurisdiction and those facts didn't change the substance of what was  and the substance here is that when i am now that's made up of municipalities passed on speech from a governor of the state that that was somehow private speech and that's just not possible and if that is the allegation and that's what the complaint lives on there's no record necessary we don't have to go so far though do we has to has to say that there is and there's no hypothetical set of facts you can't even fathom one where there would be private speech issues here and the reason is because the i m l of course as you as you've indicated is an association apology i thought what you what you would say is well let's just look at what's alleged here we don't have to answer hypothetical questions and they haven't alleged any excuse me private capture the only thing that was alleged was the contribution to private parties and i've already can survive a motion to get into discovery that's i think that's what i read judge blakey you know is opinion to really turn on that there's just no allegation of private involvement and that's exactly right there is no allegation of private development i think that the suspicion or whatever the speculation is that brad kohl the individual has control of the illinois municipal league when in fact brad cole as official that doesn't make the village a private party or make the village speech private speech brad hole works for the i am out he works at the pleasure of the board of directors that are all elected officials and he may be terminated at any time by the e requirements for instance right now it doesn't it doesn't do that so it's essentially acting is government organization why would it be exempt from shorts of requirements that's a question that's been tossed around at the legislature except for times that it's never gone anywhere but again that has never been challenged in court these plaintiffs have never challenged it  that has not been tested yet and there's a different standard for government speech than there is for what the other the last point i would like to bring out is that when the unions filed their rule fifty nine emotion they based it entirely on discovery of new evidence i went through that evidence in rather painstaking detail to show that all that newly discovered evidence was already a part of this record so clearly it wasn't something that wasn't available during the litigation and for fifty nine dollars the motion it has to be something that wasn't available during the course of the litigation and none of this was and for the liberal the rule fifteen liberal pleading standard to come into play this court has set assuming the requirements of rule fifty nine dollars e r met then the liberal standard applies you don't get to jump over the requirements of fifty nine t and those straight to liberal think because then you're back at day one and that's not when the judge dismissed the rd event a complaint with prejudice you had not asked as part of your relief in lieu of of going forward to file an amended complaint to chill at that point you didn't ask for that until the rule fifty nine correct we were in the middle of the discovery battle with the motion about trying to get evidence related to the private status of how could it be fair for the court to dismiss that with prejudice if you had asked for that rel because this was the st complaint dismissed against the i am now the st complaint dismissed at all in this case and the court addressed novel legal issues which it acknowledged in its decision the government's future doctrine was still evolving and there were very few cases addressing and associations ability to claim government speech as in these facts therefore we would request that this court find abuse of discretion in both