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 

Filed: 

Submitted on Briefs: February 3, 1994 

Decided: April 18, 1994 
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 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? 

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 Smith 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. ~itle VII 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 Court 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 2425. 

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 their 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 Claims Brouqht by National Guardsmen Under the 

Civil ~iqhts 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-inchief 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. 5 502 (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 not agree with all that is 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: 

Etibeth 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