Explanation - House Bill (LC1710)

Revitalize the Montana Home Guard

by Gary Marbut

The purpose of this bill is to provide organized and trained volunteer resources to local communities, sheriffs and the governor to assist in dealing with civil emergencies in Montana.  All recent governors have learned that they cannot rely on state National Guard units for in-state needs to address problems such as wildfires, prison riots, flooding and more, because National Guard units are usually federalized and gone when needed.

Therefore, this bill will fill out the existing laws about the Montana Home Guard to allow creation of organized groups to fulfill missions not currently being addressed by other volunteer institutions such as Search and Rescue, volunteer fire departments and Neighborhood Watch.

This bill will allow the formation of a variety of Home Guard units, including medical, transportation, construction, firefighting, environmental, communications and more.

The most important feature, however, is that the bill will allow for a pool of organized, trained and equipped volunteer personnel and gear to be available when needed to assist with emergencies in Montana.

Where the Montana Home Guard fits.  The Montana Constitution specifies that all able-bodied citizens are members of the militia.  Current law divides the militia into the "organized militia" and the "unorganized militia."  The organized militia is further divided into the Montana National Guard and the Montana Home Guard.  The statutes about the Home Guard are currently very brief.

Section-by-section explanation of the bill.

Note:  This explanation should be read with a copy of the bill available to refer to for details.

Sections 1 through 20 are all about one topic, separating the National Guard from the Home Guard.  The problem with availability of the National Guard is that they are subject to "federalization" (call by the U.S.) at any time, and are often unavailable to Montana (see Perpich v. DOD).  So, it is essential to make sure that the Montana Home Guard may NOT be called up by federal authorities.  Nearly all of the changes in Sections 1 - 20 are done to keep the Home Guard separate from the National Guard and removed from federal control.

Section 21.  Short title. The "Montana Home Guard Revitalization Act".

Section 22.  Purpose. To "establish the Montana home guard as a volunteer community service apparatus in Montana …"

Section 23.  Amends existing 10-1-701, MCA to specify Home guard organization and composition.  This section sets the basic Home Guard unit as a company, allows for many different types of companies, or companies of mixed types of platoons, and allows companies to adopt standards, colors and uniforms suitable to the company and its mission.

Section 24.  Company captain responsibilities.  This section puts the company captain in charge of the company recruitment, training and supplies, makes the captain responsible to the governor for the captain's commission and through whatever chain of command the governor establishes, and charges the captain to prepare a company charter to specify the mission, policies, equipment and procedures for the company, which must be approved by the governor.

Section 25.  How home guard company may be established.  This section sets three ways a Home Guard company may be established, to then be accepted by the governor.  The governor may appoint a captain and charge him or her to raise a company, a volunteer individual as captain may raise a company, or a group of people may gather and elect a captain.  In any of these cases, the captain and company must then petition the governor to be accepted into the Home Guard structure.

Section 26.  Amends 10-1-702, MCA, - Gubernatorial rules for home guard.  This section specifies how the governor sets rules for the Home Guard, and how companies may be certified and decertified by the governor.  For the first two years of certification, a Home Guard company is only certified for one year.  The third year of certification is indefinite.

Section 27.  Oaths -- conditions of service.  This section specifies that all Home Guard members serve as volunteers and at their own risk, and requires commissioned and non-commissioned personnel to swear an oath to Montana.

Section 28.  Officer resignations -- when commissions must be vacated.  An officer may resign his commission, or that commission may be vacated by the governor for cause.

Section 29.  Activation and deployment -- failure to respond -- restrictions.  Home Guard units may be activated for only 10 days at a time by the governor, and for no more than 30 days in any year without specific permission by the Legislature.  Companies may not be deployed outside of Montana, and a company may be decertified if fails to mobilize with at least 1/2 strength within eight hours of activation.

Section 30.  Amends 10-1-703, MCA - Training -- use of armories and equipment.  This section charges the company captain with responsibility to train company personnel sufficiently to meet the company's mission.  The National guard may assist with training insofar as National Guard resources are available.

Section 31.  Volunteer status -- workers' compensation.  Home guard members serve strictly as volunteers, but the entity which activates a unit must provide workers' compensation during activation.

Section 32.  Liability.  When a Home Guard company is activated, if a lawsuit is filed against a member the Attorney General must defend the member, members serve at their own risk, and members are not responsibility for liability unless they are grossly negligent.

Section 33.  Amends 10-1-1002, MCA, - Purpose -- legislative intent.  This sections cause Section 34 and 35 to apply to members of the Home Guard.

Section 34. Amends 10-1-1003, and Section 35. Amends 10-1-1009 - Paid military leave for public employees.  This includes Home Guard members in existing law that activated members who work for a state or local governmental entity must be given leave for activated service.

Section 36.  Amends 10-3-1001, MCA.  A surgical amendment in this existing law ensures that an "Emergency Management Assistance Compact" cannot be used to take Home Guard units out of Montana or make them subject to federal authority.

End