321.42 Defense of members of guard; payment of judgments.

(1)

(a) If any member of the national guard or of the state defense force or any resident of this state who is a member of the national guard of another state is prosecuted by any civil or criminal action for any act performed within the scope of his or her employment as a member, the governor, upon request of the adjutant general, shall appoint counsel to defend the member. The adjutant general shall make the request to appoint defense counsel if the act performed by the member was in the line of duty. The governor may appoint the attorney general to defend the member.

(b) The costs and expenses of the defense under par. (a) shall be audited by the department of administration and charged to the appropriation under s. 20.505 (1) (d). If the jury or court finds that the member against whom the action is brought acted within the scope of his or her employment as a member, the judgment as to damages entered against the member shall be paid by the state.

(2) Any civil action or proceeding brought against a member under sub. (1) (a) is subject to ss. 893.82 and 895.46.

History: 1977 c. 65; 1979 c. 34 s. 2102 (37) (a); 1979 c. 221; 1981 c. 20 s. 2202 (17) (a); 1985 a. 332 s. 253; 1987 a. 63 s. 13; 2003 a. 69; 2007 a. 200 s. 43 to 45; Stats. 2007 s. 321.42; 2013 a. 20.

A national guard member on active duty, but operating his own car for his own purposes while on a pass, was not acting in the performance of a military duty. Wuorinen v. State Farm Mutual Automobile Insurance Co. 56 Wis. 2d 44, 201 N.W.2d 521 (1972).

The state is not immune under ch. 102, (worker's compensation), from liability for damages incurred by a national guard member while pursuing military duties. The state must pay a judgment based on negligence occurring in the good faith performance of duty. Mazurek v. Skaar, 60 Wis. 2d 420, 210 N.W.2d 691 (1973).