this case arise concerning a contract that provided a promise to pay the monthly premiums has me a rose for health insurance for purposes of federal superintendent's health insurance was so high after investigation it discovered it was because the district was paying not only the search for the sitting superintendent but for the past  school districts health insurance program provided health insurance for active employees once an employer retired from that if the program provided eligibility for the group plan payments as they arose for the mccracken's life mr tolle over because you may not want to get into this now but you said that for constitutional purposes you regard the the two commitment as as identical but i think you also have a position under state law or at least the your client was advised by counsel i'm take it that under state law  a superintendent couldn't be compensated for years past the superintendent's tenure now is it is it  is it the board's position that that was true with respect to the ten years past retirement commitment as as it also was with respect to the lifetime tenure the state law issues with respect to the two promises are similar in some respects and differed in other with respect to the subject of consideration required montana law for a valid contract i think the ten year promise clearly for reasons sufficient for the montana legislature they restricted the board's ability to contract with the superintendents beyond certain terms that are set out as fast as i interpret that statu the prohibition is the terms of the contract may not exceed and then there's as you and i think that there is nothing within the statute that says that term must be no more than three years or in some cases no more than one except for deferred compensation gifts gold watches  retirement benefits but we believe not here are those are provided for by statute statewide in montana by the like our system the school funding involves all local and state funds our system of retirement good or bad for good or ill is uniform throughout the state  concerns that the promise for a lifetime was in a program on the argus in august i believe twenty ninth of two thousand and one the board announced by resolution after some contact with mr kraft we end and quit making the payments after december thirty first of this year so in effect the resolution was we will pay for at least another hundred twenty days then we intend to quit under several nineteenth of the here the board resolved to continue to make the payments until a court had finally decided whether or not the payments were required to be made or were in fact my point is that there never has been an instance any money in the house or the contract has not been performed even though the board questions it's a living and and why should we care about that i mean what does that point go to because a cause of action under section one thousand the three requires a deprivation of the claim protected right is a right to receive payments of money that if the payments of money are made it deprivation of the right has not occurred in the law but indication of the cases your honor built where the deprivation of a right a rise in my contract concerns the right to the present given any control over property or the right to pursue gainful employment in those two instances we're confident under current law that one hundred eighty three applies this case involves neither it's not even a right to have state only the mccracken's were singled out have the district from their budget paid for their life insurance for life as we turn to be either more difficult for them or easy  out this line between ordinary which contract case and cognizable ninety three action what if we were to conclude that there is no night in eighty three action but the state law causes of action were valid and that as to the jury's decision that this that there's a state law recovery available what do we then do with the jury verdict that seems not to differentiate in terms of its nam the cases that we cite which involved the crafty there and also the ski resort case of yaks and whole take the view that where the federal those cases take the view as and i confess your honor that i have thought about this question studied the cases tried to come to some understanding of how that would be dealt with  ruling should have been made at the outset of the case headed and made at the outset of the case these would have been dismissed in the state law claims would have been tried in state court as they should have then i think the court acted without your stiction from the inception  seventh two thousand and two record this was an issue because the jester court or excuse me the school district moved to dismiss based on real while the one before the hearing the difference between those two motions is that thanks to this court we were asked by the district court review several of your opinions one of which was the black case the difference is that the twelve b one requires that they only look at the complaint and it fails for lack of jurisdiction on the and you'll find that stipulation on pages thirty six and thirty seven of the transcript wherein the judge at the closing of that hearing sad here's what i'm going to do i'm going to consider this a twelve the six motion i'm going to decided on its merits i  stated i'm going to limit my decision to the merits of whether or not there's a constitutionally protected interest i'm not going to rule on because i don't think it's right as to whether or not there was a deprivation or due process problem and i'm going to consider everything that's in the re trial judgment of the verdict this is very important for a number of reasons i also want to point out and i've provided which shows the court that in this court they contract or honor we only asked for important of the contract prior to trial we received the summary judgment order saying that the contract was valid imports of oil and that the mccracken's would in fact receive a lifetime health insurance promised by the contract one of the reasons that we have claimed that this is a one thousand nine hundred three action is that montana law does not allow for the recovery of emotional distress damages or attorney's fees under the contract actually it's changed a little bit since the imposition of those were the two elements of damages i guess you could say that those are state law and that we also brought the state lock a little we call it door work claim but the contract had already been determined we did not seek any additional damages under the contract and we did not you had to retire if you took other employment you lost the benefits and nationally this benefit was made the very next night if you contract then the retirement benefits were given to joe mccracken as an enticement to stay with lockwood school district to refuse offers from other districts who wanted him to work for him they enticed him to stay by saying if you stay with us and tell retirement for another six weeks well at that the final fantasy which was really yes it was only six weeks but  the benefits and so the evidence below was uncontroverted the german crack and did in fact lose opportunity to be employed in order to keep the effect of this contract so this is a unique under state law and to reach a contract such as to give rise to an eighty three flame the argument for one thousand nine hundred three claim is that it's a deprivation of property without due process of law and there needs to be some sort of a higher hearing or at least come in under the idea of you need to have a due process hearing before terminations what's there to here under montana law an employee of public employee who is going to be discussed at a public board meeting must be notified of the proceedings and having an opportunity to publicly participate in that meeting he can close it for privacy concerns that he had a right under montana law to be at the august twenty ninth hearing which they terminated and and and what would you do the meeting had not yet and schedule and so it was clear that he had never been given notice of the time and place for that hearing which is a requirement under montana is opening up to three through one of those montana statutes so we proved  trial which is not an issue here but the notice was inadequate and that he was not given his hearing i would like to address the court's concerns about what if you find that there is no federal question here under the protective property interest there are fo of us on appeal and we conclude that there is no good one thousand nine hundred fifty claim for example concluding that doesn't come within the category is a little hot what becomes of the judge i think i heard an answer already but i want to make sure that really is your answer i think i heard your answer saying and i can it be claimed disappears the jury award also disappears because it is premised upon that you know you didn't say that ok this court does not have jurisdiction to vacate that judgment because ru of two hundred twenty seven thousand dollars is a separate document and they did not appeal from it and they did that notice of appeal does not reference that document and it's shown from the other parts of the record specifically the notice of not two different things there's the summary judgment on the contract and there's the tort verdant well i don't you know i haven't had to be honest with you i haven't researched this very thoroughly but my recollection that the law because of the door cause of action we have a state law claim that was similar to the night and here you go and you're entitled attorney's fees under state law yes we are in the door claim has not been widely litigated but i ok what else i also believe that the jury was given instructions on bad faith which is another montana court remedy that arises from contract i want and that's a judgment i don't see arguments in your brief directed to those state law causes of action except for the contract i believe the state law causes of action the way the verdict form was present deprivation was established as a matter of law by the judge who the three elements were instructor that the property interest was protected the interest under the federal constitution and the only question presented to the jury under applied although not on the same point we have a situation where a state agency operating with a the lek did board spending public funds is given certain powers and then