please the court all start with moodiness this case is not moot because there exists a live active concrete dispute over what statute of limitations should apply between two thousand and fifteen in two thousand and seventeen is that what this nevada legislature wanted which was one year or is it what the district court said had to be because of preemption three or four years this is a law that governs every major construction dispute in the state of nevada the difference between one year and three years obviously dramatic if you rule in our favor two thirds of disputes would disappear so this case is not moved well it's how many disputes really are there are kind of you know the sky is falling chicken little hair but how many really are there and that period of time how many yeah well it's impossible to say exactly because most of these occur outside of court but there are at least hundreds of major construction projects projects in about a year on those major products those each major product of dozens of subcontractors this statue of limitations would govern in each case presumably the trust didn't bring this suit because this is some kind of peripheral in consequential law that really comes up the legislative record one attorney testified that he's handled hundreds of cases this is twenty it's twenty one months of dispute it's a significant number and our position is that two to three the two thousand and fifteen argument where it was a collection of reforms four of the five are gone what we disagree upon is whether the statute of limitations that the legislature set out in two thousand and fifteen is moot and then related question of severability that's because the district court found that the statute of limitations was itself not preempted that is if it had been inactive as a sort of standalone measure it would not have been preempted by arista the trust seem to dispute that that's what the court actually did but it's that your six minutes seem to be plain as day it's not really clear to me that the what the district court the what i mean by clear is the finding that the statute of limitations was not in and of itself preempted and because the court found that that was preempted the court just then moved to severability so it's not granted but is it does it have to go down statutes say specifically in their address and their sever ability right and i guess one does not doesn't say anything about it right right but that has no significance whatsoever because at the very beginning of the right it has if if it what did say if it did talk about severability and there would you be telling me it was significant no because an r s s zero point zero two zero at the very beginning of our nevada code says that you presume that all laws are several you don't need to put  some statutes do duplicative lee but the statute says whether you put it in or not it means nothing if not more several if it's in there it's not level less several if it's not that's that's that's that's a general severability clause the district court was completely wrong on that point to make some sort of inference that there's no severability because of the lack of that clause the district court in writing that found that although there is this clause since there's no  ordering the issuance of a bond this the court cited the case that was decided before this severability clause was pit put into our code so that doesn't help ok let's let's let me find out exactly what you want us to do all right you want us to say that it's not moved to the statute of limitations correct yes correct and that that that that is sever a ball and so the one year statute of limitation should apply from twenty fifteen to twenty seventeen yes but you agree that it's moot as to everything else yes because of course you lost in the district court on all of the other issues and so you wouldn't want us to say that the district court was you wouldn't want us to say ok it's not moved but we're going to affirm the district court in its entirety you wouldn't want that why do you we think the  district court in its entirety correct you could although i do think that the sort of the months thing where doctrine sort of seems opposite here in that right but tell me how bat would play out in a practical sense but just i'm not we haven't conference on this i'm not saying i'm in this is the hypothetical but let's say we say it's not moot we agree with you on that but we don't agree with you that it's only not moved as to the statute of limitations and we get to the merits and we affirm the district court where does that put you well the most in word document is designed to ensure that the party who wins below doesn't do something on appeal to move the entire case and then deny us appellate review that seems to be very much what they're trying to do they're saying we won below we want to preserve our victory want to keep this district court decision but also to say that you don't have appellate review because this is moot that's what they want but you don't want that you just want you want to say it's not moot as to the statute of limitations then you want to went on the one year so that twenty fifteen to twenty seventeen and then they can then but then if we say it's moot as to everything else then if they choose to challenge the new statute that they do that a new without the benefit of the old preemption correct correct so everyone wants wants us to do a little bit something a little bit different but that also affects what's to happen with any challenges to the new statute right that's right i mean it seems to me slightly suspicious that they don't they if they say there's no more injury we're in the clear we're fine now but they won't stipulate to vacating the decision below seems to me that they have for a minute and but you don't want to have total madness because you want to retain the one year and then you want to be able to litigate but you don't want to be but you know you don't want any litigation on the new statute to be tainted by what the district court did previously so we think the district court on i would have liked to ask you to reverse the district court entirely but we're trying to be candid with the court the nevada legislature changed the law in two thousand seventeen and made all of the response to a judicial ruling in response now this doesn't mean they conceded that the district court's right they felt it right but it had no issue but it does put you in a different position if nevada court had if the nevada legislature had changed a law not in response to a judicial ruling that it's a little different blends well there's a federal court that said we can't do what we did so they went back to the drawing board enacted the same thing without the problems that the district court identified this is all we restored the language of out we just took we just took that out and that we can still make the argument to the new one that even though it doesn't refer to a recess that it interferes with the administration of the trust but it isn't they don't have as good an argument because you don't have arrest or rest or recess stamped all in the legislation right they could make that argument they say in their brief and we'll take them at their word that they're they're fine now but that's why the legislature that's why the legislature did it shows how important the legislature thought it was no as to the mood is i'm not my argument that i would like this i just think that's the law of the legislature made i hear stuff i'm trying vacate their judgment is as a matter is moot we would ask you to do that our preference is for you to address the statute of limitations on the severability on the merits but if you do find that this case is moot yes we'd ask you to the this is the state's appeal obviously one below and the state appealed the discords decision now in light of the passage of s b three three in two thousand and seventeen the state has conceded that there are really only two only pursuing those two things and so it so they're only pursuing the statute of limitations and and the severability issue saying that if the stats imitation is not moot then it can be separate from the rest of s b two twenty three so what's your position on whether the district court ruled on th severability it absolutely did it because it may be confusing because the severability under about a supreme court precedent has a two part test the first is whether it that statue can stand on its own grammatical discourse said the statue imitation could stand dramatically it doesn't have any direct reference to a recipe lands within it but once you do that you also have to show that the legislature intended for it to stand on  own now the stain of that ever lies upon an arrest zero point zero two zero to say that the legislature gave its direction on what to do with severability it told us its intention however enter a zero point zero looking at this legislative history we can see what the legislature's intent was and throughout the legislative history that we provided to the court that we provided the district court they had the benefit of it when you go through that legislative history becomes clear that the nevada legislature intended to regulate employee benefit plans in fact on the very first page of their statement of the case they even concede that on this is on page nine  documentary eleven in the state's opening brief says in two thousand and fifteen senate bill two twenty three amended about a construction law to stop what the legislator perceived to be unfair practices by labor union truss like plaintiffs they've actually said that was the whole point the statute regulate employee benefit plans now the district court when i went through this severability analysis it actually said this is what it said i'll sorry it said that the statute limitation was not severable because it was quote only seen as reasonable as part of a larger political process and which in exchange for a short limitations period section four of s b two twenty three amends and arrests one await to require contractors participating in a health or welfare benefit plan to provide project specific information to the plans so that's on page six of the record i'm going to give you just one example from the legislative history that supports the district court conclusion that there was a political process and that the stache limitations was connected to the other presidents of the bill which would have found was preemption now that comes from an april twenty seventh two thousand and fifteen assembly meeting where and the minutes of that meeting we provide a link to that on page forty four of our brief and the district court was provided video because the minutes weren't yet available and so at the top of page seven in those minutes senator settle meyer says what is in front of you a compromise in that respect and then further down in page seven this is explained a woman named joyner jacobs says i am here to walk you through the bill and talk to you about some of the key parts where we compromised continue on page is all your this is what the legislature said about the changes that were made during the legislative process when s b twenty three we that if we want to look beyond the words and if we want to all of that right if you want to look beyond the words the statute yes but some people don't like to do that well if you're looking at legislative intense you can look at the words of the statute it doesn't have a severability provision so the legislature hasn't told us what the intent was with the specific bill so in order to determine legislative intent which is what the district court did it looked at the legislative history let me ask you this just so because just trying to understand the practicality of this that if this court were to find that it moot then that essentially vacate the district court ruling correct and then you're free to challenge and then it would also allow the statute of limitations it could arguably allow the statute of limitations the four year to be in effect from twenty fifteen to twenty seventeen right well it would not necessary if you say that the that this appeal is moot that does not mean that you vacate the decision below the ninth circuit previously stated in a place called in a court called cameron meyer versus perry and that's in one thousand nine hundred six decision that when courts case the state of nevada is the one that and the acted this statue in two thousand seventeen which created this there's no reason to vacate the decision below certainly i think i think one of the points in it that you make no is one that was significant to me  you're saying the state of nevada but this fairness that is divided into units serves three branches and there's no indication in the record that the executive branch has any influence on the legislature and i don't see why or where you have a case that says we should vary from that process well we do have a case when we argued in the motion to dismiss we argued that the district court opinion below should not  be the reason why is because there was and there was ninth circuit cases the talked about when you go through that analysis you're trying to determine whether or not the appellant caused the us and so ok i understand that but there's not a shred of evidence in the record that the executive department was meaningfully involved in what the legislature did not not any evidence at all is there no there is not we simply don't see the distinction between the legislature as the legislative branch and the the state of nevada as the executive branch you don't see the separation of powers doctrine we understand that doctrine however we understand the state of nevada as representing the state and about his interests may have individual branches within that but all of them are supposed to represent the people of nevada and what's the best case you have that when the executive branch is done decide whether or not the there or the separation of powers doctrine does not apply in this case and if the judiciary or the legislature do anything that is involved in the case that we have to consider they speak for appeal certainly we continue to argue that the discourse made the correct decision on the law and there's no reason to take the discourse decision which is correct on the law and vacated when the district court made the correct decision at the time that it made it certainly the legislature came in and enact it in a statute later which mooted the issues for the appeal but that doesn't mean that it races legislative history doesn't mean that the district court got that decision wrong when it looked at what the legislature and done so and that was incorrect and so to vacate that decision it essentially will wipe the slate clean and allow the legislature to come in again and reenact different legislation where if you leave the district court decision impact than the legislature will be strongly discouraged from doing this in the future i knew stand your argument but the problem i have with it if if they did if they district court had no power then to do this because the cases  to the tros general with you can do better why are you giving such your sweeping force when one could argue that there's at least some possibility similar legislation could be adopted and there's a prophylactic manner we really are keeping these kinds of regulations from from coming down right but let's let's suppose what would be the effect of that we say that it's not moot and we address the merits of this and that what if the court were to conclude that the state has the power to say how debts are collected and the fact that it affects the state the state gave you the power in the first place to do it and the state can take it away and so it's you know that it's not preempted that would be the argument for not being preempted so if we say it's not moot and we go back and review the merits summary perce reversed the district court then if this statute if that statute is not is can be upheld certainly that would be the death knell to the one that they passed right where they don't mention a ressa that we have never argued that the that arista plans are not subject to political red led to slay sion with in any state and that selection and that collection absolutely the nevada sprint or the supreme court of united states has said that in the maquis case there was two statutes in that case at issue one of them was held to be preempted because it applied exclusively also why don't you lose under makea because mackey does seem to that that's a case that could be argued to not help you i don't agree with that i believe that it does help us because there was another statute there was a generally applicable statutes and so this statute s b two twenty three when that was an acted it was not a statute of general public ability there are specific requirements within that bill that only apply to a recipe benefit plans but is not really controlling if the subject matter is a general applicability suppose there's a concern about safety for trusts because to everyone but it specifically references rissa plans in the statute if it does apply to everyone if it applies to everyone then that is a lawful legislation so merely referencing  is let me find out of my colleagues have any additional josh and i'm fine thank you we don't have any additional questions thank you thank your ho just very briefly on the moon is point you're just you're exactly right just was we this the labor commissioner is not moved this case the law changed the legislature changed it was forced to do so by decision of the district court we didn't have this law in the  to a case that you lost in front of a district judge the way to think about it is that not in nevada as a labor commissioner this was changed on to the this mood is dr it applies when a party takes strategic action to move it's an action that's within the control of the party the months in where case itself said would you have just said just was it was the executive branch and forcing something congress to change the law on them and them on scene where doctrine could apply in that case it's the same scenario here now just on the merits of th severability issue we think this was utterly impermissible what the district court did it found that you could separate but you wouldn't the legislature didn't want to because of this larger political process or exchange now they had three chances below to give us a single citations of legislative history where this extraordinary doctrine comes up that defies the normal presumption what you just heard now this is the first time they've actually offered a single instance from the legislative history and this is not in their briefing i happen to know what they're talking about and some someone uses the word compromise the compromise they're talking about was over the length of the statute of limitations the truck the general contractors had wanted thirty the original drafts that ninety eight eventually became a year there was not some bargain among the legislate tours that they would have only wanted the statute of limitations to survive if these other pieces survived would he would he just quote these are witnesses these are partisan witnesses to the legislature these people are not proxies for what the legislature thought this idea that they would have that there was some kind of unwritten thing where there's a collection of reforms to the  construction industry writ large that they all have to rise and fall together i mean this is extraordinary we've never seen anything like this and it was concerning enough for the legislature to file a brief it makes no sense the statue of limitations easily survives on its own functionally grammatically structurally it was the most important thing the legislature wanted to do and we are saying that there is literally no evidence of any legislature legislate or correct that it only applied to trust it applies to anyone who could bring an end arrest six away this vicarious liability claim trusts workers who are not represented by trusts da's the a g the labor commissioner all these parties can enforce this law they all get one here so why don't you make the two years retroactive you made everything else retroactive why didn't you make the two years retroactive i don't know your honor that's up it's the legislature did that it's not it's not me i don't know why they did that it's certainly shorter than the three to they've taken the position that anything under three four years violates arista so we're still under that two years maybe they're happy with that it's still shorter than what it was we know the legislature wanted to make it shorter and what's interesting about your point just now is that they made mo they made everything in the law a retroactive except for the statute of limitations they left the two thousand and fifteen one year in place which to me if there's any inference it's that they really wanted this one year between two thousand fifteen and two thousand and seventeen they didn't touch it