only real question we submit before the court today is whether the district court opinion the judgment of the court below should be vacated the parties of it presented the court with two leading supreme court decisions and essentially disagree as to which controls here the plates us palance submit that the supreme court decision in munson where provides the rule of decision in this case in muncie where the court that the service and the bringing your vision council and vice censured by the eleventh amendment among other things so that decision and during the course of the case as you pointed out correctly your issue becomes mooted by the supreme court in california and this court but don't we have a unique situation here where the now the questions that the court below the district court's decision reached a different issue and why should we vacate that because that gets to an issue that does have ongoing concern and that is what is the nature of the judicial council visa v it's being subject to service in the center it's in this fall somewhere little different  than the in the cases i've seen your honor i think the set of facts you describe are exactly right and they actually lend themselves in favor of a cater for this reason the court issued the district court issued a ruling on the eleventh amendment immunity  the dish of council members this court is precluded by article three from passing on the correctness of that ruling this court could only give an advisory opinion on that question so we have an outstanding judgment valid when it was entered but not subject to review on appeal that is precisely the months in your situation up there might be your answer in muncie where itself of course the executive agency had repealed the price can control regulation that has served as the basis for the district cour court should not look to the merits of that ruling rather only the fact as you're on a pointed out that it may have continuing effects it may have effects on my clients were we forced into the situation again being in litigation with the jewish council where they could assert as a collateral estoppel matter that we are not able to bring them into federal court we seek only hear the vacate or to prevent that from the future and leave all those things for future cases because of the intervening mootness so while it's not the underlying issue is different i would submit that actually supports vacate or rather than press against the bottom all decision  judgments in cases that are settled after the appeal is filed and the court ruled no this course was not settled after the fewest filed this case has never been settled this case was rendered moo by no fault of either party the barn or mall decision makes clear that the cause of the movement is the party to whom it should be attributed is in fact the pivotal question and  in this court's unbanked decision in the delhi case quoting the supreme court's decision in the andersen vs green case which appears in the same volume of the us reports as bottom all itself the pivotal question who that event to come about and to the contrary that argument is in significant tension with marbury vs madison and every case the fall is that this court declares what the law is and always has bad we had a view on that as a result the months where rule is not optional it's not discretionary it contains no equitable exceptions other than for settlement this court has described it in terms that include automatic mandatory and in any event and district court opinions aren't deemed binding precedent by anybody else anyway so this this dispute has gone on for some period of time why are the parties continuing to fight over it you honor the two word answer is collateral estoppel we hope that it never becomes necessary for the exchanges to use through the judicial council again but if we were to do so we believe we have an absolute right to go to federal court under section twenty seven a of the exchange act the judicial c l believes it has an absolute right to stay out as federal federal court under the eleventh amendment and that is a dispute that we believe should be joined fairly and in a reviewable situation rather than have this case stand as a barrier in a please the court gave it and her on behalf of the judicial council of california they cater is an extraordinary and an equitable remedy and the supreme court has instructed the courts must take into account the public interest before t most well we have two two reasons as to why we think the decision should stand but the more important question is is it's their burden to show that it shouldn't how much of a burden because because there's a footnote in bonn or mall that's makes a point of saying look we stand by munson whereas dictum that newton's by happenstance provides sufficient reason to vacate so it's not so extraordinary anymore if this is moved just by happenstance than you have a case well they did say it is an extraordinary remedy and they did not have before them nor has this court had before them a situation where there wasn't any chance  fact in the future and that the only reason for wanting to vacate the opinion was was to eliminate adverse precedent presidential effect but it doesn't have presidential out i don't read anything in months in where that says that we should lean back and make an another judgment as to whether really makes a difference or not i mean that seems to be the party's election in months thing where that that was clearly what the what the problem  there just is no realistic possibility of this having a precludes an effect in the future it would have to be another case where plaintiffs sue the judicial council over these ethics standards and these ethics standards have already been held by this court and the california supreme court not to apply to the pla saying might have presidential value or might have have a persuasive value in other cases and yet it's a case that will never be the underpinnings of which will never be challenged on appeal in other words the of being challenged here and yet you agree it may have a persuasive impact in the future so isn't that more reason too you know i think i think that's a reason it hasn't been before that factor has not been before the circuit but there are three three three other circuits who have said that when you're dealing with with persuasiveness and precedent as opposed to collateral estop didn't the decision didn't reach the merits of why the plaintiff sprott this lawsuit if the district court's judgment had been that there was no preemption and no federal preemption of the of the standards then there is certainly would be a valid basis to vacate the district court's judgment but here it was based on procedural grounds before ever reaching the merits and those grounds there is no danger no realistic chance at all that there could be recluse of the fact in any other case against against the plaintiff so they have they have no reason for no valid reason for it the type of adverse consequence that leads to vacate or that is the type of adverse consequence as as three circuits have have found and the court should should remember that the district court's opinion had adverse rulings against against plaintiffs not just on the eleventh amendment issue but on other other issues for example there was a the district court found that there was no jurisdiction under the exclusive jurisdiction provision of the securit exchange act that provision could be used could be cited as as precedent not as precludes the but is precedent against against the plaintiffs in this case in other cases and with that with other parties and if there are no further questions and then on that thank you  three points your honor first butterball a page twenty three says quote vacate or must be decreed for those judgments whose review is prevented due to the judgment must be vacated the judicial council has not cited a single case anywhere in its briefs in which vacated was not ordered in these circumstances and i am not aware of no such case ever decided by any federal court ever second we have said that we hope it doesn't happen but the usual council may adopt other rules in the future we may have to sue them again and they will assert this decision the spiral stopper mr entered did not dispute any of those propositions he said that these standards have been declared preempted that's after the truth he did not disavow any future rule making by the judicial council and he did not disavow any attempt by you to counsel to use this decision as quadrille stuff i don't think he could make such a representation because  council may well decide to adopt other or additional rules relating to arbitrators and that they don't include an exemption for the yes or arbitrator will be right back in the same world we are now the state supreme court has itself said this is preempted it's your are i hope you are correct i would point out we point out in reply brief the state bar of california another state agency has an ongoing rule making right now that would make all arbitrators who are also license practice last letter to the california standards we think that rule if adopted would be preempted for exactly the same reasons that the court ruled in grunwald in the supreme court ruling jenny we don't want to go through another round of litigation we've put in a comment on that rule making asking for the exemption just as we did in the judicial council rule making we think we're in part of that exemption as a matter of federal law you know i want to be very clear that we hope there is no future litigation over the intersection between california arbitration standards and the us are ar required by federal law to conduct arbitrations pursuant to our rules any state rules here or elsewhere that conflict with those rules we are going to have to resolve in some fashion that is the future effect it may not come about but it is not hypothetical or opinion the opinion retains its persuasive value regardless of whether that red flag is put on it just causes reasoning is as good as judge conti's reasoning is it can be cited in future cases with the red flag and if it's persuasive to future courts it will be follow estoppel and second to the extent other parties seek to use it against us in other contexts that we were precluded by the vagaries of circumstance from seeking appellate review of the correctness of that decision it may well be correct i think it's wrong but it may well be correct