                             NO.    92-436
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1994


TIMOTHY L. GROVE and
BECKY BARRY,
          Plaintiffs and Appellants,


MONTANA ARMY NATIONAL GUARD,
RONALD A. OESTERLE, LEROY H.
HENDERSON and SCOTT J. SMITH.




APPEAL FROM:   District Court of the First Judicial District,
               In and for the County of Lewis & Clark,
               The Honorable Thomas C. Honzel, Judge presiding.


COUNSEL OF RECORD:
          For Appellants:
               Elizabeth A. Best, Best Law Offices, Great Falls,
               Montana
          For Respondents:
               Captain Thomas S. Muri, Staff Judge Advocate,
               Department of Military Affairs, Montana National
               Guard, Helena, Montana


                             Submitted on Briefs:     February 3 , 1994
                                             Decided: April 18, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

     This is an appeal from a dismissal of this action by the First

Judicial District Court, Lewis and Clark County, due to the court's
determination that it did not have jurisdiction.              The court
determined that the plaintiffs were on federal active duty for the
Montana Army National Guard (the Guard) and not subject to the
court's jurisdiction. We reverse and remand.
     We address the following issue as being dispositive of the
case:     Did t h e court err by dismissing the action due t o l a c k of
jurisdiction based upon the determination that plaintiffs were on
federal active duty with the Guard?
        Plaintiff Becky Barry (Barry) was hired by the Guard as a
billeting clerk at the Fort Harrison training site in February of
1988, and subsequently moved into the position of administrative
clerk on October 2, 1988.         Ronald Oesterle (Oesterle) was the
training site manager.      Barry was supervised by defendants LeRoy
Henderson, Scott Smith, and Oesterle.
        Barry alleges that she was sexually harassed by defendants
over an extended period of time.      In the fall of 1989, Barry filed
sexual harassment claims against Oesterle, Henderson and S m i t h with
the Guard and also with the Equal Employment Opportunity Office
(EEOC).     Oesterle terminated Barry shortly after Barry filed her
claims.     Oesterle also terminated ten other persons, including
Grove, at approximately or about the same time claiming a lack of
funding.     Several months later, eight of the eleven were rehired.
Neither Barry nor Grove were hired back despite their seniority to
the other employees.
     Timothy L. Grove (Grove), husband of Barry, filed a written
statement supporting the sexual harassment claim. After Grove was
not rehired by the Guard, he filed his own claim against the Guard.
Barry and Grove alleged that they were not rehired in retaliation
for Barry's claim.    The Guard sent an investigator from the State
Adjutant General's office to research the claims. The investigator
found evidence of wrongful discharge in both Barry's and Grove's
termination and failure to be rehired.
     The   Guard   adopted    the   finding of   its   investigator and
determined that Barry and Grove had been discriminated against and
were due back pay.      Barry filed a claim with the Human Rights
Commission (HRC) in June of 1990. Initially, the HRC answered that
it did not have jurisdiction because it considered the Guard to be
a federal agency.    Barry sought a reconsideration of this decision
and the HRC subsequently issued a "Right to Sue Letter."
     The Guard then changed its legal position stating that it
could not issue back pay and that the Title VII action was not
appropriate.   The Guard determined that the only way Barry and
Grove could receive back pay was to file an action for "Correction
of Military Records."        Subsequent to this decision, on March 25,
1992, Barry and Grove filed a Complaint and Demand for Jury Trial
in the Montana First Judicial District Court, Lewis      &   Clark County.
Defendants made     a motion to dismiss for failure to            exhaust
administrative remedies.
     On August 14, 1992, the court issued its Memorandum and Order
dismissing plaintiffs' complaint against all defendants because
Barry and Grove were on federal active duty at the time of the
discrimination and they could not pursue their claims in state
court.    It is from this order that plaintiffs appeal.
         Did the court err by dismissing the action due to lack of
jurisdiction based upon the determination that plaintiffs were on
federal active duty with the Guard?
     The District Court dismissed the action based        upon   its
determination that it had no jurisdiction because the Guard is a
federal agency. According to the court, plaintiffs must pursue the
option provided them through the Guard's administrative agency.
     On appeal, plaintiffs argue that the Guard is a state entity
and has acted as such throughout the course of this litigation.
While plaintiffs admit to the dual nature of the Guard, they argue
that its dual role does not make the Guard a federal entity.
Plaintiffs contend that while members of the Guard unit serve in
the national armed forces and follow federal rules and regulations,
they are also the state national guard and are subject to state
rules and regulations.      According to plaintiffs, at the times
relating to the claims of harassment, they were employed in their
state capacity.
     The Guard argues that it has a dual character but that it
follows federal laws and regulations and not those of the state.
The Guard contends that federal law prohibits it from lawsuits such
as this in state courts. According to the Guard, plaintiffs1 only
redress is to have their records corrected.
       In reviewing a motion to dismiss, this Court will review the
complaint in the light most favorable to plaintiffs and we will
affirm the court's dismissal only if we determine that plaintiff is
not entitled to relief under any set of facts which could be proven
in support of the claim.       King v. State (l993), 259 Mont. 393, 856
P.2d 954. The laws that are applicable to the alleged charges are
those covered by both state and federal discrimination law.              The
Montana Human Rights Act and the Montana Constitution prohibit
discrimination because of gender. Section 49-2-303, MCA; Art. 11,
Sec. 4, 1972 Mont.Const.        ~itleVII of 1964 Civil Rights Act and
the 1972 amendments to that Act               prohibit the same type of
discrimination to all employees including those of the federal
government.      42 U.S.C. 2000e.
       The record shows that members of the Guard are informed that
both sets of laws apply to them.           No issue regarding Title VII has
been    raised    in   the   appeal   to    this   Court.   We   limit   our
consideration to the District Court's decision that it did not have
jurisdiction to apply state laws to the Guard and the plaintiffs.
       This Court has determined that members of the Guard serve a
dual responsibility, to the State of Montana and also the United
States of America:
            In times of national emergency as declared by
       Congress, the militia may be called to active federal
       duty by the President pursuant to 10 U.S.C. 5 3500. At
       such times the militia is subject to federal authority,
       and operates under rules virtually identical to the
       United States Army.
            During times of state emergency, the militia is
       subject to call for service by the Governor. Art. VI, 5
       13, 1972 Mont. Const. Then the militia operates under
       state authority, but only to the extent that the state
     rules conform to applicable federal law. Section 10-1-
     105, MCA.
          In times of peace, the militia operates somewhere
     between the two.
Evans v. Montana National Guard (1986), 223 Mont. 482, 483, 726


     The idea of a dual status has been established by the Supreme
Court of the United States.       In Perpich v. Department of Defense
(1990), 496 U.S. 334, 110 S.Ct. 2418, 110 L.Ed.2d 312, the Supreme
Court was faced with a question concerning whether Congress may
authorize the President to order members of the National Guard to
active duty for purposes of training outside the United States

during peace time without either the consent of a state governor or
the declaration of a national emergency.      The C o u r t stated:
     Since 1933 all persons who have enlisted in a state
     National Guard unit have simultaneously enlisted in the
     National Guard of the United States.       In the latter
     capacity they became a part of the Enlisted Reserve Corps
     of the Army, but unless and until ordered to active duty
     in the Army, they retain their status as members of a
     separate state Guard unit.

Perpich, 110 S.Ct. at 2 4 2 5 .
     Therefore, while the Guard units consist of members enlisted
in the United States Army, they are also a Montana military unit
consisting of Montana citizens:
     Our citizens may not be stripped of basic rights simply
     because they have doffed t h e i r civilian clothes.
Then Chief Justice Warren, The Bill of Rishts and the Militia, 37
N.Y.U.L.Rev.    181, 188     (1962), as   cited   in   E.   Hawkens, The
Justiciability of C l a i m s Brouqht by National Guardsmen Under t h e
Civil ~ i q h t s Statutes for Injuries Suffered in the Course of
Military Service, 125 Mil.L.Rev. 99, 101 (1989).      Our own state
constitution makes     clear which   of   the governmental entities
controls:
     Section 13. Militia. (1) 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. . .
Art. VI, Sec. 13, 1972 Mont.Const.
     While the District Court determined that Grove and Barry were
on federal active duty and therefore, "in the actual service of the
United States," the court cites no evidence from which it could
have determined this fact. The record is devoid of any proof that
the plaintiffs were on "federal" active duty as opposed to "state"
duty.
     What the file does contain is an affidavit by Grove stating
unequivocally that at all times pertinent he was under orders from
the Adjutant General of the State of Montana.      In response, the
Guard finds fault with Grove for not supplying a copy of his
orders.     However, the Guard does not supply a copy of the orders
which they say derive from the federal government.         The only
evidence supplied by the Guard is a pay adjustment document signed
by the State of Montana Comptroller.        This document allegedly
indicates that the source of monies paid to Grove was the United
States Government. This is far from clear and is not sufficient to
establish that Grove was on federal active duty.       Nor does the
Guard make clear how the funding of Guard units from federal funds
negates the idea of a state militia under control of a state
governor.
     The record shows no indication that plaintiffs were called to
federal active duty during the applicable time periods here.        The

District Court stated that Grove and Barry were on federal active
duty pursuant to 32 U.S.C. 5 502 (f). However, that federal statute
is merely descriptive of National Guard training.       Subsection (f)
states that regulations prescribed by the Secretary of the Army or
Secretary of the Air Force will govern training.      There is nothing
in the record to indicate that at the times involved in this suit,
Grove and Barry were "training." In fact, the federal statute that
precedes the aforementioned statute states that:       The training of
the National Guard shall be conducted by the several States       . . .
32 U.S.C.   5 501(b).   The federal statute does not establish that

under the limited facts known to the District Court, Grove or Barry
were under the control of the federal entity.       If Barry and Grove
were under federal orders pursuant to 32 U.S . C. 5 5 0 2 (f), the Guard
should have submitted the same but failed to do so.       In a similar
manner, the Guard has not addressed 10 U.S.C.          3495, which in

substance provides that members of the Army National Guard are not
in active federal services except when ordered thereto under the
law. Again, if proof existed to show that Grove and Barry were on
active federal duty, the Guard was obligated to submit proof of the
same but failed to do so.
     The Guard argues that Evans controls the present case.          We
disagree.    While Evans is informative in its portrayal of the

character of the Guard, the holding of the case dealt specifically
with a tort claim. We there determined that Evans had no right to
sue another member of the Guard under the State Tort claims Act
because that statute makes such claims appropriate only for a
"governmental entity1!which the legislature has defined as a "state
or political subdivision.ll Sections 2-9-101(3) and 2-9-102, MCA.
We held that the Guard is not a political subdivision--clearly
defined     in    our     statutes     as      "any   county,    city,    municipal
corporation,          school   district,       special    improvement    or   taxing
district,        or     any    other   political         subdivision     or   public
corporation."          section   2-9-101(5),     MCA; Evans,    223   Mont. at 484,
726 P.2d at 1161.
    We were careful in Evans not to rule on any Act other than the
State Torts Claims Act.            Therefore, it has no precedential value
when considered in concert with the Montana Human Rights Act.
    We conclude that dismissal of the plaintiffs1 action was
improper because the District Court had no evidence before it from
which to determine that Grove and Barry were on federal active
duty. We hold that the District Court erred in concluding that it
did not have jurisdiction, and therefore erred in dismissing the

action.     We reverse the dismissal of the action and remand for
further proceedings consistent with this opinion.                             1




          chief justice
Justice William E. Hunt, Sr., specially concurring.
     I concur in the results reached in the majority opinion, but
do n o t agree with all t h a t i s said therein.




                                             Justice
                                         April 18, 1994

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


E t i b e t h A. Best
Best Law Ofices
P. 0.    Box 21 14
Great Falls, MT 59403


Captain Thomas A. Muri
Assistant Staff Judge Advocate
Department of Military Affairs
Montana National Guard
1001 North Main Street
Helena, MT 59620




ED SMITH
CLERK OF THE SUPREME COURT
