Senate Bill No. 103

Introduced By van valkenburg

By Request of the Department of Military Affairs

A Bill for an Act entitled: "An Act providing for the immunity of the state, its officers, employees, and agents, and members of the militia in a civil action for damages while engaged in federal activities."

WHEREAS, Article VI, section 13, of the Montana Constitution provides that the "governor is commander-in-chief of the militia forces of the state, except when they are in the actual service of the United States"; and

WHEREAS, section 10-1-101, MCA, defines "militia" as "all the military forces of this state, whether organized or active or inactive"; and

WHEREAS, section 10-1-101, MCA, defines "national guard" as "the army national guard and the air national guard"; and

WHEREAS, section 10-1-102, MCA, recognizes that the Department of Military Affairs performs duties and functions required by federal laws and regulations; and

WHEREAS, section 10-1-104, MCA, recognizes the application of federal laws, regulations, forms, precedents, and usages relating to and governing the armed forces of the United States to the military forces of this state; and

WHEREAS, the Army National Guard and the Air National Guard perform a uniquely federal mission and role except when ordered by the Governor into state active duty as provided for in Article VI, section 13, of the Montana Constitution; and

WHEREAS, the federal government has established comprehensive administrative programs to compensate military forces for injuries that they may incur while performing training for the nation's defense; and

WHEREAS, THE FEDERAL GOVERNMENT HAS ESTABLISHED COMPREHENSIVE ADMINISTRATIVE PROGRAMS to compensate those who make claims for death, personal injury, or damage to real or personal property under the Federal Tort Claims Act, 28 U.S.C. 2671, et seq.

NOW, THEREFORE, the Legislature finds it appropriate to enact [section 1] for the purpose of limiting liability of this state, its officers, employees, and agents, and members of the militia for the performance of the uniquely federal functions of the Army National Guard and the Air National Guard.

Be it enacted by the Legislature of the State of Montana:

NEW SECTION. Section 1.  Immunity from liability. The state, an officer, employee, or agent of the state, or a member of the militia may not be held liable in a civil action for damages that result from an action that occurs while the officer, employee, agent, or member is considered an employee of the federal government under the Federal Tort Claims Act, 28 U.S.C. 2671, et seq.

NEW SECTION. Section 2.  Codification instruction. [Section 1] is intended to be codified as an integral part of Title 10, and the provisions of Title 10 apply to [section 1].

NEW SECTION. Section 3.  Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].

NEW SECTION. Section 4.  Two-thirds vote required. Because [section 1] limits governmental liability, Article II, section 18, of the Montana constitution requires a vote of two-thirds of the members of each house of the legislature for passage.

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