April 10, 2009

The Honorable Bob Bergren

Speaker of the House

State Capitol

Helena, MT 59620

The Honorable Robert Story, Jr.

President of the Senate

State Capitol

Helena, MT 59620

Dear Speaker Bergren and President Story:

In accordance with the power vested in me as Governor by the Constitution and the laws of the State of Montana, I hereby return with amendments House Bill 150, “AN ACT CREATING THE MONTANA RECREATION RESPONSIBILITY ACT; PROVIDING THAT A PERSON WHO ENGAGES IN A SPORT OR RECREATIONAL OPPORTUNITY ASSUMES THE INHERENT RISKS IN THAT SPORT OR RECREATIONAL OPPORTUNITY AND IS RESPONSIBLE FOR INJURIES AND DAMAGES RESULTING FROM THOSE INHERENT RISKS; LIMITING THE LIABILITY OF THE NONGOVERNMENTAL PROVIDERS OF A SPORT OR RECREATIONAL OPPORTUNITY; CLARIFYING THAT A PROVIDER IS NOT REQUIRED TO ELIMINATE, ALTER, OR CONTROL THE INHERENT RISKS WITHIN A PARTICULAR SPORT OR RECREATIONAL OPPORTUNITY; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.”

My amendments to HB 150 accomplish three things. First and foremost, they add governmental entities within the protections of the bill. When Montanans adopted their Constitution in 1972, they abolished the doctrine of sovereign immunity under state law. That doctrine traces its origins to English common law, under which the government, i.e., the King, could do no wrong. Under the 1972 Constitution, Montanans decided that governmental entities would be responsible for their wrongdoings just as are private actors. A primary objection of mine to HB 150 in its current form is that it turns the 1972 Montana Constitution’s abolition of sovereign immunity on its head, since all actors except the government are relieved from liability for inherent risks in sports and recreational activities. My amendment would treat the government the same as all other private parties.

As you know, under Article II, section 18 of the Montana Constitution, my amendment requires a 2/3 vote of each house of the legislature. I ask you to join me in treating government providers of recreational activities, such as Universities and schools, in the same manner as private persons.

While offering an amendment to add governmental entities among those subject to the protections of this bill, I also proposed adding language to make clear that a provider is not only a “person” but includes corporations, partnerships, and other business entities.

Second, my amendments clarify that the Act does not apply to sports equipment or products in their design, manufacture, provision, or maintenance. In its current form, the bill states only that the Act does not apply to the design and manufacture of sports equipment or products. It is my understanding that the bill was never intended to apply to any aspect of deficient sports equipment. Rather, it was intended to apply to the inherent risk of the recreation activity, itself. My amendment ensures this result.

Finally, my amendments strike provisions in the first section of the bill that are of a philosophical nature. The limits on liability for providers of sports or recreational opportunity involving inherent risk are contained in section 3 of HB 150. Those limits are clear and, I believe, do not require further embellishment in section 1.

I believe these amendments are fair and, if adopted, will result in a clear and sound policy recognizing limits on liability of providers for risks inherent in recreational activities and sports.

I have discussed the amendments with the sponsor of the bill, Rep. Dee Brown, who supports the amendments. Please join her with your support, as well.

Sincerely,

BRIAN SCHWEITZER

GOVERNOR

cc: Legislative Services Division

Amendments to House Bill No. 150

Reference Copy

Requested by the Governor

For the House Committee of the Whole

Prepared by Susan Byorth Fox

April 15, 2009 (12:37pm)

1. Title, line 8.

Strike: "NONGOVERNMENTAL"

Following: "OPPORTUNITY;"

Insert: "PROVIDING GOVERNMENTAL IMMUNITY;"

2. Page 1, line 27.

Strike: "(1)"

3. Page 1, line 29 through page 2, line 8.

Strike: subsections (2) through (4) in their entirety

4. Page 2, line 14.

Strike: "other than"

Insert: "corporation, partnership, or other business entity, including"

Following: "entity"

Insert: "as defined in 2-9-111"

5. Page 3, line 2.

Following: "design"

Strike: "or"

Insert: ","

Following: "manufacture"

Insert: ", provision, or maintenance"

6. Page 3, line 5 through line 6.

Strike: subsection (5) in its entirety

7. Page 4, line 1.

Insert:          "NEW SECTION.  Section 7.  Two-thirds vote required. Because [section 3] 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."

Renumber: subsequent sections

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