the defendant the issue before the court here isn't the merits of the case because the district court dismissed it based on the defendant's argument that this is the exact same situation that occurred in s evade eleventh amendment probably just name the institution which is an arm of the state we have sued for example the ethics commission and that issue has has not come up why don't we deal with supreme court jurisprudence how do you would stall at least one amendment but you don't deny that at least in the procedural posture before us today the action was filed against the judicial commission as opposed to individual it was certainly against the commission and if that is the issue then that the remedy would simply be remanded for a change of a caption well i mean in the face i think clear supreme court authority that so holds unless you've got an interpretation of the that's different now i've read it i don't think so i think that's all we can do today isn't well i think that dealing with on the procedural posture of the case of procedural posture in terms of dealing whether the entity whether it's named but through its commissioner or the commission itself which still would still arise in the state is still there whether the commission or the commissioners have in fact anything to do with issue that the district court ruled on it's a jurisdictional issue i mean we don't have a choice either we have jurisdiction or we don't and if you agree that we don't then i don't know what more we need to talk about ok then my suggestion would be to reminded back again i think we certainly have a a right to amend the complaint and in fact would have the right to amend and add other defendants also that is are well why don't we do this why don't you established through a provision of our state constitution and as and as supplemented by the statutes and acted by the legislature as authorized by that provision we agreed that the plaintiffs here sued only the commission and not the named individuals or the executive director and that is in contrast to what happened in the snet case which both parties spend considerable amount of time addressing in the briefs in that case the chairman all the members of the commission and my predecessor twice removed were being named individual defendants we argued below that the commission had eleventh amendment immunity in the context that you addressed in your questions that is that only the commission was sued it was the pla because they were only seeking prospective as opposed to retrospective relief that the commission could be sued i agree that with counsel statement that reman would be appropriate because we haven't entered a responsive pleading rather the case was disposed of by way of a motion to dismiss pursuant to rule twelve b however i don't know that that will give us any farther along down in the trial court for the simple reason the trial court said the come mission was the wrong answer teeth to sue because it had no one force meant authority did the sides have an opportunity to amend i think they always had an opportunity to amend before the filing of an answer they didn't do that did he tell them amanda and you'll be all right no he did not issue any type of warning or restrictive order that put them on notice that he felt that that was a problem did you ever raise that question of standing in this case yes we did with that was an alternative argument that we made to judge pro who as it turned out was the judge who heard the snack case in the district court as well back in the late one nine hundred ninety s the judge for whatever reason he had chose only t doing here and then and we say then we inquire what are you what are you complaining about in this case the judge eliminated the issue and it nothing probably turns on it here but i think it would be appropriate in all deference to both the court below and and to the plaintiffs to if that the court is so inclined to give that for or make that court address that issue so that has told us that that's the more orderly procedure and i i agree with that so your recommendation to us is that we dismissed for lack of jurisdiction based on eleventh amendment immunity as the case is presently frame but remain and to the district court for such further proceedings as me be necessary depending on what plaintiffs do after th that would be correct in i would suggest that that directive could or perhaps should include a directive to sue all those defendants or prospect  defendant in this case is simply not going to get us any further along and i'll just leave it at that you know our brief i must say i'm a little surprised that you haven't even thought of a way in which this appeal could be affirmed outright honor we brief the issue and i think it's clear that the judge was correct how he disposed of the case however he didn't dispose of it on the eleventh amendment ground that you know identify the mere fact that they even you're this court would dismiss it out right because only the state agency is named certainly wouldn't eliminate the possibility that these plaintiffs could go back and we file another case naming the proper defendant well with that be that the more appropriate procedural approach at this point simply affirm this case and live plan of sorrow or yes i do whether the commission versus meaning the commissioners but whether that entire entity in the people make it up are in fact the the property defendants or whether it is argued by  and by the lower court it is only the nevada courts that can be sued so by affirming that decision you're essentially dealing with that particular issue not just not just the caption issue and if that's the case then then we're in a different situation that would simply reminded back for further proceedings based on a change in the caption individuals and then whatever standing issue what would come up would be dealt with at that time probably would have to dismiss the appeal for lack of jurisdiction period and then the question is whether we should just leave it at that or whether somehow we are compelled at this point to order a rematch and with leave to  not have to start at square one i think that it would move things along in that particular regard because they'll present prejudice and anybody just to listen isn't that does that become an advisory opinion and we occasionally  as judges when we're talking about the dispositions on cases where we don't have jurisdiction and we're sitting in the conference room kicking this around well ask one another whether it's proper or in a case where we've determined that we don't have jurisdiction to say anything more because of the fact that if we don't have power to resolve the case before us then whatever we say is purely advisory since it is not binding on the parties or the court well i'm not sure the organ i understand why understanding of jurisdiction is that if we are without power to decide the case under the constitution i guess that would be the case and controversies clause all a court can do do is to declare that it is without jurisdiction and dismiss the matter pending before it beyond that it can do no more it has no power to to issue any substantive rulings that are binding it it can't require the parties or the courts below to do anything more it simply says we can't do this and we're done with this well i mean my understanding jurisdictional law is with an initial complaint if there is a commission had nothing to do and the commissioner had nothing to do it was only the supreme court this was exactly the same case it's not i mean pretty much said that this is snow you know once again and about whether the individuals were named rich as the commission never addressed that issue in fact they really didn't come up until until today but that particular basis you know we're prepared argument we would like to obviously you say we can't because of of the jurisdictional issue of the you want to make the argument the problem that i'm going to wrestling with is you know what what relief that we can give you because anything it seems to me that if we're right and we don't have jurisdiction for the reasons we've articulated then anything that we say is purely advisory that is correct now it may be helpful to the parties to give and strict court some guidance think this court has any less jurisdiction to do that through the remount than the district would have district court would have on its own so the question would be really what would make the most sense and serve the interests of the judicial nominee and clearly having the case continue and fix the problem had the district court look at it and probably end up back here again would thank you the case just argued will be submitted for decision