as i understand the court's recent ruling the court only wants to hear argument about our motion for certification to the montana supreme court we understand that this case has been certified not once but twice by the lower district court to the important constitutional did they says on a record that had not been developed when it was sent back a second time the court made the same observation it is years after that fact we have completed discovery we have put together literally thousands of pages of discovery we've taken twenty seven depositions with each hired experts that quit the file it's now more than developed and right as i have looked at the rule it is not clear what would be presented to it that they're obviously this court would come forward with a question to be presented that being constitutionality of the current worker's compensation statute in the state of montana this point we have a motion for some we have two motions for summary judgment so at this point the court would be presented with not only that issue but also with the facts that have been cited by the record which the montana supreme court looks at the same way th morning may it please the court dr strip holland of clark's appearing on behalf of p p l montana i'm here along with co counsel carl gilmore from seattle we understand that there may be a temptation on the part of this panel to certify the montana constitutional question to that's usually what why we certify things right we're not the montana supreme court and whatever we decide here as a practical matter is for all intents and purposes irrelevant except for purposes of this case if they come along in the next case and tell us ninth circuit you were wrong as a matter of montana constitutional indeed and i thought about what i would be be viewing this case if i were in the shoes of this panel and would i not be saying to myself let's let them out then supreme court take a look at these issues and i frankly might not be here advocating a different result but for two things first are not available with what is different here or in sufficiently different to suggest that the montana supreme court will still find the record inadequate because i think this is and would be viewed as a garden variety discovery and the next problem we went through that exercise but you didn't have that the last time i mean is that a significant change in terms of the posture case well i would suggest that it's not although certainly one could argue that perhaps the supreme court might be more inclined to look at it knowing that those depositions have been taken but here's why i would suggest the supreme court might be inclined to to decline the question for a third time what we noonan and great western sugar both involved conveyor systems both involved allegations the employees who have defects that workers had been injured on prior occasions and that safety regulations were violated applying the standard preacher was presented earlier and having seen that this is really much like a newton case like a great western case that our mike hanna supreme court as with the u s supreme court in the circuit case simply said this really doesn't give us the opportunity to plume the breadth and depth of the constitutional issues that are presented but the only thing that we don't have here is a full blown trial on the merits with the judgment in favor of one party or the other and the advantage that the winning party would have of being able to argue to the montana supreme court that all of the facts must be viewed in the light most favorable to support that judgment why is that any different from your opponent point that on summary judgment the montana supreme court can look at this extensive factual record and interpret those facts in the light most favorable to the non party in analyzing the constitutional questions they certainly can proposition has been accurately stated by counsel and by your honor but where does it take us that's that's our question well it's just the constitution i mean it's a pure matter of law is this statute constitutional or not and with great respect for my colleagues might well appear to the montana supreme court is a negligence case that in the absolute circumstances facially unofficial standard were you have to demonstrate that there's no reasonable application of the how long does it take the montana supreme court to to act what kind of assuming your scenario plays out how much time are we talking about testing well if the montana supreme court were presented with this question then we've seen from past experience that can it take anywhere from a half a year to year before we get a decision on whether there's going to be a decision and we so it would be certainly some some time and it's not clear what what the procedure would be the other point i would make is we think that the constitutional questions here are not novel or unique and perhaps that also was the subtext of the supreme court question as to whether there should be any exception to employer expressivity then perhaps one could say that that intervening change but what we have here is constitution addresses that it does indeed and that's that's where i was headed our montana constitution they said quote the montana constitution provides that the state may deprive an employee of full legal redress against his employer this is an expression of constitutional recognition recognition of the rationale originally plaintiffs and with respect we would suggest that certification should be denied and i think having argued this at the montana supreme court prior i can tell this court that the montana supreme court was not concerned about whether this was an ordinary variety negligence case or not the court's concern was directly to the heart of mind that what the court is going to be asked to do is not decide whether or not this is a variety negligence case as has been suggested by counsel but you're going to be asked to decide whether the statute itself is constitutional bradys have waited a long time for an answer to this question and we believe that waiting a little bit longer isn't going to hurt that at this time if we do i think you've said this in your written submission but if we w and that was that this is not a case this is not a challenge that has been seen before in montana specifically the court said that we do not have sufficient facts before us upon which we can render presidential opinion on the substantial and significant constitutional questions posed your honor as you were asked about the timeline of the montana supreme court we can also tell you from experience that once it was read certified and the glitch between the federal court and it's state court was resolved it only took this montana supreme court ten days to say we aren't going to accept this