ones who are doing it under threat of criminal prosecution they're providing services to the city they're doing it on a patently thankfully unconstitutional ordinance they've spent time they were they were audited they were they were in some cases  threatened by the city we believe as every retailer collects taxes for the government i mean it's not exceptional here well but what we have here is enormous that was found to be patently unconstitutional on and the editor really isn't changing anything was found unconstitutional i was immediately replaced now you're arguing there was a gap between when it was determined to be unconstitutional and replaced but is that all we're talking about the cost of collecting the tax well that was services provided they have they have to keep books they have to like the trust like keep books anyway i mean they have other tax obligations to other units of government so presumably they keep track of their income and expenses and so they're subject are subject to criminal prosecution and they don't and it seems to me that the government has a duty that if they are going to require them to do that i think that under a constitutional tax so i believe that there is a theory here and i would add some kind of a taking spirit in terms of the services that they provide but that was one of the same services whether the taxes constitutional or unconstitutional so you want to bring attention to him for involuntary servitude i guess you can do  that but i'm not sure the constitutionality of the tax because of that issue well that was not the issue the issue of what theory in fact that they were basing their damages on was not the issue for the district court in the summary judgment motion and certainly i ok and then the california supreme court denied the petition for review and february third one nine hundred ninety eight correct ok and the california effect the day after the election unless the initiative itself states otherwise and the initiative here in that state otherwise it gets state otherwise for it that's that little typewritten thing on the top but in the bod schedule a referendum on twenty four hours notice or anything like that so they've got this referendum going out or this this is a ballot measure going out in this early february election scheduled some time before that so why would they put that up with they run the risk of not having a tax be effective immediately and voluntarily push it back to july first i thought when any benefit is there to the city in doing that because i'm  they believe detective effect immediately vein effect would be moving out the question about challenging one once they scheduled a ballot measure they've done that i mean how are they going to pull back suppose the california supreme court grants the petition for review in march sometime then what but if the effective date is not till subsequent till after the review and i think they could ask the california court number one and how we measure doesn't say that this is going to in june upon the california supreme court ruling against this the ballot measures there it's been passed that's a done deal yeah it's been passed but not attractive i mean they'd be in the divine court it's somewhat less now but not effective what difference does that make because it's still going to become effect of july first no matter what and  if you take that road you leave the city with the possibility that she they don't mean before the california supreme court were exposed well i don't know what the mechanism would be that once they have it adopted by the voters whether in fact the city council could somehow patch a resolution that would somehow stay the effective date beyond that beyond that while the california supreme court was was was reviewing it or if the california supreme court c certified copy on file is the voter to assume that that's incorrect it seems to me that i don't think do we assume a whole lot of voters went to check out the effective date based on what the city clerk functionary typed the voters don't have a hard time inferring the city's intent based on that the voters did not have the ordinance in front of them when they voted that they had words and they had the city attorney analysis and the ordinances on file they have the the right to go down to the clerk's look at the ordinance they the city of san bernardino to continue to collect and use the transience lodging tax that's not something that says to start collecting it for four months and then start again come july first well continue to collect and i think the only reasonable inference i can see from that is that the city anticipated it would continue to collect not take a four month hiatus and why the city would want to take a four month hiatus is the question that i asked at the beginning and i'm still the near very satisfying answer so that's collecting the money they had a policy and we have from nothing no answer that even at the risk of not collecting the money i think this says is one point six million dollars for years we're talking for five months you're talking several hundred thousand dollars and you're saying the city's going to forego the seven hundred thousand dollars in hopes that the california supreme court will grant a petition for review that's under the assumption that the old orders to still not effective and in fact the city's got collecting money in the old ordinance but they in fact were collecting money under the in the california rule of court twenty nine point four because this case went to the supreme court on a petition for you till that time now but the final argument we had which is irrespective of the issue of the effective date of the ordinance goes back to the broader issue of whether we are allowed retrospective relief i whether it's party in general by the federal tax anti injunction  congress wrote the act to address cases in which they taxpayers seek federal court orders and enabling them to avoid paying state taxes the patel one decision found that we had met the first prong of the assessment requirement we didn't go into court into federal court and try to invalidate the the state or nice the state tax ordinance first we went ahead we got a declaratory judgment stay cases and both them stay it when you have supreme court petition intervening in their even if however the rep effective date is the supreme court as a court pointed out we're talking about a few hours which is the ministers you can possibly get the questions asked major issue of who actually qualified as a permanent how you made that distinction who qualified if the tax is not collected properly according to the very definition of whether you get the exemption as a permanent and they go to the owner or the motel operator and since you're the one who now is responsible for the tax and penalties and they were in fact some some of the motel operators who were hit with that tax under the old ordinance that was one of the issues why we brought up our challeng court originally on the old order so this damages issue that is now being brought up i would just submit to the court we didn't have a burden at this level based on what the only issue that was resented in the district court was when's the effective i didn't have a us site at that time it was so new i had one twenty four escort a twenty two eighty seven with the language the language that made trucking company which was a case out of this circuit versus oregon department of transportation  page forty the opening brief three eighty eight after twelve sixty one said quote after hips after hips the dispositive question in determining whether the x jurisdictional bar applies is whether quoting hips federal court relief would have operated to reduce the flow of state tax reverend you and that's why in hibbs they found that when you were asking for tax credits that would not be bored by the tax at one twenty four escort twenty two eighty nine and page forty one of the opening brief that said quote in this court is interpreted implied the tax spend time junction act only in cases congress wrote the act to address i e cas had our patel one decision when the judge browning wrote that decision he agreed we have a novel question this week invalidate a tax that he found that the texan time junction actually still barred retrospective relief and others we couldn't go back with the only reason we're here arguing now about effective dates and about whether there's only a three day date whether there's a two month date whether it was effective june thirtieth one thousand nine hundred eight is because the panel the first panel plaintiffs and then they say the case explain talking about that explain we're outside congress's purview but we're not dealing damages in a traditional forty two us ninety three suit as third party collectors they're not the taxpayers we're not asking for refunds we're not asking for something and there's no system in place anymore it can't compete  submit that we're not barred i mean we wouldn't even be at all these issues of effect if they were just simply not barred under the junction act and that's how we get to the all the issues that we had to get to when this case at this point we had a wind supplemental to any state court remedy we cited in our brief but that's what we're dealing with taxes here ok well listen this is a fascinating case a lot of thought went into this and