Public Act 100-1030
HB3040 EnrolledLRB100 10666 KTG 20890 b
AN ACT concerning military affairs.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. The Illinois Administrative Procedure Act is
amended by changing Section 1-20 as follows:
(5 ILCS 100/1-20) (from Ch. 127, par. 1001-20)
Sec. 1-20. "Agency" means each officer, board, commission,
and agency created by the Constitution, whether in the
executive, legislative, or judicial branch of State
government, but other than the circuit court; each officer,
department, board, commission, agency, institution, authority,
university, and body politic and corporate of the State; each
administrative unit or corporate outgrowth of the State
government that is created by or pursuant to statute, other
than units of local government and their officers, school
districts, and boards of election commissioners; and each
administrative unit or corporate outgrowth of the above and as
may be created by executive order of the Governor. "Agency",
however, does not include the following:
(1) The House of Representatives and Senate and their
respective standing and service committees, including
without limitation the Board of the Office of the Architect
of the Capitol and the Architect of the Capitol established
under the Legislative Commission Reorganization Act of
1984.
(2) The Governor.
(3) The justices and judges of the Supreme and
Appellate Courts.
(4) The Legislative Ethics Commission.
(5) The Illinois State Guard with respect to
regulations adopted under the Illinois State Guard Act.
(Source: P.A. 95-331, eff. 8-21-07.)
Section 3. The State Employee Indemnification Act is
amended by changing Section 1 as follows:
(5 ILCS 350/1) (from Ch. 127, par. 1301)
Sec. 1. Definitions. For the purpose of this Act:
(a) The term "State" means the State of Illinois, the
General Assembly, the court, or any State office, department,
division, bureau, board, commission, or committee, the
governing boards of the public institutions of higher education
created by the State, the Illinois National Guard, the Illinois
State Guard, the Comprehensive Health Insurance Board, any
poison control center designated under the Poison Control
System Act that receives State funding, or any other agency or
instrumentality of the State. It does not mean any local public
entity as that term is defined in Section 1-206 of the Local
Governmental and Governmental Employees Tort Immunity Act or a
pension fund.
(b) The term "employee" means: any present or former
elected or appointed officer, trustee or employee of the State,
or of a pension fund; any present or former commissioner or
employee of the Executive Ethics Commission or of the
Legislative Ethics Commission; any present or former
Executive, Legislative, or Auditor General's Inspector
General; any present or former employee of an Office of an
Executive, Legislative, or Auditor General's Inspector
General; any present or former member of the Illinois National
Guard while on active duty; any present or former member of the
Illinois State Guard while on State active duty; individuals or
organizations who contract with the Department of Corrections,
the Department of Juvenile Justice, the Comprehensive Health
Insurance Board, or the Department of Veterans' Affairs to
provide services; individuals or organizations who contract
with the Department of Human Services (as successor to the
Department of Mental Health and Developmental Disabilities) to
provide services including but not limited to treatment and
other services for sexually violent persons; individuals or
organizations who contract with the Department of Military
Affairs for youth programs; individuals or organizations who
contract to perform carnival and amusement ride safety
inspections for the Department of Labor; individuals who
contract with the Office of the State's Attorneys Appellate
Prosecutor to provide legal services, but only when performing
duties within the scope of the Office's prosecutorial
activities; individual representatives of or designated
organizations authorized to represent the Office of State
Long-Term Ombudsman for the Department on Aging; individual
representatives of or organizations designated by the
Department on Aging in the performance of their duties as adult
protective services agencies or regional administrative
agencies under the Adult Protective Services Act; individuals
or organizations appointed as members of a review team or the
Advisory Council under the Adult Protective Services Act;
individuals or organizations who perform volunteer services
for the State where such volunteer relationship is reduced to
writing; individuals who serve on any public entity (whether
created by law or administrative action) described in paragraph
(a) of this Section; individuals or not for profit
organizations who, either as volunteers, where such volunteer
relationship is reduced to writing, or pursuant to contract,
furnish professional advice or consultation to any agency or
instrumentality of the State; individuals who serve as foster
parents for the Department of Children and Family Services when
caring for a Department ward; individuals who serve as members
of an independent team of experts under Brian's Law; and
individuals who serve as arbitrators pursuant to Part 10A of
Article II of the Code of Civil Procedure and the rules of the
Supreme Court implementing Part 10A, each as now or hereafter
amended; the term "employee" does not mean an independent
contractor except as provided in this Section. The term
includes an individual appointed as an inspector by the
Director of State Police when performing duties within the
scope of the activities of a Metropolitan Enforcement Group or
a law enforcement organization established under the
Intergovernmental Cooperation Act. An individual who renders
professional advice and consultation to the State through an
organization which qualifies as an "employee" under the Act is
also an employee. The term includes the estate or personal
representative of an employee.
(c) The term "pension fund" means a retirement system or
pension fund created under the Illinois Pension Code.
(Source: P.A. 98-49, eff. 7-1-13; 98-83, eff. 7-15-13; 98-732,
eff. 7-16-14; 98-756, eff. 7-16-14.)
Section 5. The Military Code of Illinois is amended by
changing Section 21 as follows:
(20 ILCS 1805/21) (from Ch. 129, par. 220.21)
Sec. 21. The Assistant Adjutant General for Army shall be
the chief administrative assistant to The Adjutant General for
Army matters and the Assistant Adjutant General for Air shall
be the chief administrative assistant to The Adjutant General
for Air matters and both shall perform such duties as may be
directed by The Adjutant General. In the event of the death or
disability of The Adjutant General or any other occurrence that
creates a vacancy in the office, his absence from the State,
the Commander-in-Chief shall designate either the Assistant
Adjutant General for Army or the Assistant Adjutant General for
Air as the Acting Adjutant General to perform the duties of the
office until an Adjutant General is appointed of The Adjutant
General.
(Source: P.A. 80-176.)
Section 10. The Illinois Code of Military Justice is
amended by adding Section 76b as follows:
(20 ILCS 1807/76b new)
Sec. 76b. Article 76b. Lack of mental capacity or mental
responsibility; commitment of accused for examination and
treatment.
(a) Persons incompetent to stand trial.
(1)(A) In general, no person may be brought to trial by
court-martial if that person is presently suffering from a
mental disease or defect rendering that person mentally
incompetent to the extent that he or she is unable to
understand the nature of the proceedings against them or to
conduct or cooperate intelligently in the defense of the
case.
(B) A person is presumed to have the capacity to stand
trial unless the contrary is established.
(C) Determination of capacity of an accused to stand
trial shall be made in accordance with Rule 909 (c), (d),
and (e) of the Rules for Courts-Martial as described in the
Manual for Courts-Martial, United States (2012 Edition),
or as provided in any subsequent rule adopted in accordance
with applicable law and regulation by the President of the
United States, except that references in those rules to
"the Attorney General" mean the Department of Human
Services.
(2) An inquiry into the mental capacity or mental
responsibility of the accused shall be conducted as
provided in Rule 706 of the Rules for Courts-Martial as
described in the Manual for Courts-Martial, United States
(2012 Edition), or as provided in any subsequent rule
adopted in accordance with applicable law and regulation by
the President of the United States.
If the accused's incapacity is mental, the convening
authority may order him or her to be placed for treatment
in the custody of the Department of Human Services or the
convening authority may order him or her to be placed in
the custody of any other appropriate public or private
mental health facility or treatment program which has
agreed to provide treatment to the accused. If the accused
is placed in the custody of the Department of Human
Services, the accused may be placed in a secure setting.
During the period of time required to determine the
appropriate placement, the accused shall remain confined.
If, upon the completion of the placement process, the
Department of Human Services determines that the accused is
currently fit to stand trial, the Department shall
immediately notify the convening authority and shall
submit a written report within 7 days. In that
circumstance, the placement shall be held pending a court
hearing on the Department's report. Otherwise, upon
completion of the placement process, the sheriff shall be
notified and shall transport the accused to the designated
facility. The placement may be ordered on either an
inpatient or an outpatient basis.
In addition to other matters, the inquiry shall
determine whether there is a substantial probability that
the accused will attain mental responsibility to stand
trial within one year if he or she is provided with a
course of treatment.
(A) In the case of a general court-martial, if the
official responsible for determining capacity to stand
trial finds that there is not a substantial probability
that the accused will attain mental responsibility
within one year if he or she is provided with a course
of treatment, the case shall proceed as provided in
Section 104-23 of the Code of Criminal Procedure of
1963. In a special court-martial, the case shall
proceed after the expiration of the maximum period of
confinement authorized for the offense or offenses
charged.
(B) If the official responsible for determining
capacity to stand trial finds that there is a
probability that the accused will attain mental
responsibility within one year if he or she is provided
with a course of treatment, or if the official is
unable to determine whether a substantial probability
exists, the accused shall be ordered to undergo
treatment for the purpose of rendering him or her fit
in accordance with subsections (b) or (c) of Section
104-17 of the Code of Criminal Procedure of 1963.
(1) Any references to "the court" in Sections
104-23 and 104-17 of the Code of Criminal Procedure
of 1963 mean the general court-martial convening
authority.
(2) The general court-martial convening
authority shall, as necessary, transmit the
information as provided in subsection (d) of
Section 104-17 of the Code of Criminal Procedure of
1963.
(b) Persons found not guilty by reason of lack of mental
responsibility.
(1) The accused is presumed to have been mentally
responsible at the time of the alleged offense. This
presumption continues until the accused establishes, by
clear and convincing evidence, that he or she was not
mentally responsible at the time of the alleged offense. A
mental condition not amounting to a lack of mental
responsibility under Article 50a of this Code is not an
affirmative defense.
(2) If a question is raised concerning the mental
responsibility of the accused, the military judge shall
rule whether to direct an inquiry under Rule 706 of the
Rules for Court-Martial as described in the Manual for
Courts-Martial, United States (2012 Edition), or under any
subsequent rule adopted in accordance with applicable law
and regulation by the President of the United States. The
issue of mental responsibility shall not be considered an
interlocutory question.
(3) If a person is found not guilty only by reason of
lack of mental responsibility, the case shall proceed in
accordance with State law pertaining to persons acquitted
by reason of insanity as provided in Section 5-2-4 of the
Unified Code of Corrections. References within that
Section to "the court" or "clerk of the court" mean the
general court-martial convening authority.
(4) After a finding or verdict of not guilty only by
reason of lack of mental responsibility, the accused shall
be ordered to the Department of Human Services for an
evaluation as to whether he or she is in need of mental
health services. The order shall specify whether the
evaluation shall be conducted on an inpatient or outpatient
basis. If the evaluation is to be conducted on an inpatient
basis, the accused shall be placed in a secure setting. A
copy of the law enforcement reports, criminal charges,
arrest record, jail record, record of trial, and any victim
impact statement shall be sent with the order for
evaluation. After the evaluation and during the period of
time required to determine the appropriate placement, the
accused shall remain in confinement. Individualized
placement evaluations performed by the Department of Human
Services shall be used to determine the most appropriate
setting for forensic treatment based upon a number of
factors including mental health diagnosis, proximity to
surviving victims, security need, age, gender, and
proximity to family. Upon completion of the placement
process, the sheriff shall be notified and shall transport
the accused to the designated facility.
Section 15. The State Guard Act is amended by changing and
renumbering Section 0.01 and by adding Sections 1-1, 1-5, 1-10,
2-5, 3-5, 3-10, 4-5, 4-10, 5-5, 5-10, 5-15, and 6-5 and the
headings of Part I, Part II, Part III, Part IV, Part V, and
Part VI as follows:
(20 ILCS 1815/Pt. I heading new)
PART I
GENERAL PROVISIONS
(20 ILCS 1815/0.01) (from Ch. 129, par. 228h)
Sec. 1-1 0.01. Short title. This Act may be cited as the
Illinois State Guard Act.
(Source: P.A. 86-1324.)
(20 ILCS 1815/1-5 new)
Sec. 1-5. Establishment and purpose.
(a) This Act establishes the Illinois State Guard ("the
State Guard"). The State Guard is the State's non-federally
recognized military force which may be composed of members of
the Unorganized Militia who are 18 through 45 years of age, and
those persons who are 45 through 65 years of age as determined
necessary by the Governor.
(b) The Governor is the Commander-in-Chief of the State
Guard. The Adjutant General is the Commander of the State
Guard. As directed by the Adjutant General, the Department of
Military Affairs shall administer the State Guard.
(c) The purpose of the State Guard is to provide the State
a capable military force when all or part of the Illinois
National Guard is not available for State service due to its
possible or actual mobilization into federal service by the
President of the United States.
(20 ILCS 1815/1-10 new)
Sec. 1-10. Activation of the State Guard.
(a) Whenever the Commander-in-Chief deems it necessary or
advisable for the purpose of executing the laws of the State or
to prevent an actual or threatened violation of law; when the
nation is at war and a requisition or order has been made, or
is likely to be made, by the President of the United States
calling the National Guard, or parts thereof, into the National
service; or for any other emergency, he or she may issue a
proclamation calling for volunteers to serve in the State
Guard. Persons who answer the call and who are appointed or
enlisted in the State Guard shall serve in State Active Duty
status.
(b) The proclamation shall state the number of volunteers
needed and the period of State Active Duty during which they
are called to serve. The Commander-in-Chief may terminate or
extend any such proclamation at any time he or she determines
appropriate and in the best interests of the State.
(c) When mobilized and deployed to support civil
authorities, the State Guard may be directed by civil
authorities as to work to be done or the result to be attained,
but not as to the method to be employed. At all times, State
Guard units and members shall remain under the command and
control of the Commander-in-Chief, the Adjutant General, and
such subordinate commanders as the Adjutant General may
appoint.
(20 ILCS 1815/Pt. II heading new)
PART II
ORGANIZATION OF THE STATE GUARD
(20 ILCS 1815/2-5 new)
Sec. 2-5. Organization.
(a) As authorized by the Commander-in-Chief, the Adjutant
General may by order establish units of the State Army and Air
Guard that are similar in nature and in general conformity to
those of the United States Army and Air Force and may assign
State Guard personnel to each unit. Upon expiration or
termination of the proclamation issued in accordance with
Section 1-10 of this Act, the Commander-in-Chief may discharge
such units and personnel assigned thereto.
(b) The State Guard shall consist of 2 components: the
State Army Guard and the State Air Guard. The Adjutant General
may appoint the Assistant Adjutant General for Army as the
Commander of the State Army Guard and the Assistant Adjutant
General for Air as the Commander of the State Air Guard,
respectively. The Adjutant General may also appoint such other
subordinate commanders and staff of the State Guard as he or
she determines appropriate.
(20 ILCS 1815/Pt. III heading new)
PART III
PERSONNEL AND PAY
(20 ILCS 1815/3-5 new)
Sec. 3-5. Personnel.
(a) The State Guard shall be comprised of commissioned
officers, warrant officers, and enlisted personnel in grades
conforming to those of the United States Army and Air Force.
The Adjutant General shall establish by regulation the
qualifications for appointment, enlistment, service, and
promotion in the State Guard including, but not limited to,
minimum and maximum age, education, physical condition, and
personal conduct.
(b) The Governor shall appoint all commissioned and warrant
officers of the State Guard in a manner similar to appointments
made in the Illinois National Guard. Officers shall take the
following oath as a condition of appointment: "I do solemnly
swear (or affirm) that I will bear true allegiance to the
Constitution of the United States and to the Constitution of
the State of Illinois, and to the laws thereof, and that I will
faithfully obey the orders of the Commander-in-Chief and the
officers appointed above me, and the rules and regulations of
the Illinois State Guard. (So help me God.)" Appointments in
the State Guard shall be for an indefinite term and subject to
death, resignation, discharge, retirement, or termination in
accordance with State law and regulation.
(c) Persons accepted for enlistment in the State Guard
shall, as a condition of enlistment, take the same oath as
officers. The Adjutant General shall prescribe by regulation
the form of enlistment contracts. Original terms of enlistment
shall be limited to 2 years. Re-enlistment terms shall be
limited to one year.
(d) In accordance with regulations prescribed by the
Adjutant General, upon an officer's separation from the State
Guard, the Adjutant General shall characterize the officer's
service as honorable, general (under honorable conditions), or
under conditions other than honorable using criteria that are
in general conformity with those regulations or instructions of
the United States Army and Air Force that are applicable to the
National Guard, unless the officer was separated with a
punitive discharge under the Illinois Code of Military Justice.
(e) The Adjutant General may mobilize on State Active Duty
members of the Illinois National Guard as he or she determines
necessary to administer, train, or command the State Guard.
(20 ILCS 1815/3-10 new)
Sec. 3-10. Pay and allowances.
(a) The State is responsible for all pay and allowances of
members of the State Guard.
(b) Members of the State Guard serving on State Active Duty
shall receive the same pay as provided to members of the
Illinois National Guard of like grade and longevity under
Sections 48 and 49 of the Military Code of Illinois.
(c) Members of the State Guard serving on State Active Duty
shall be considered State employees for civil liability and
civil representation purposes to the same degree and extent as
members of the Illinois National Guard under Section 1 of the
State Employee Indemnification Act.
(d) Members of the State Guard criminally prosecuted by
civil authorities of the United States, any State,
Commonwealth, Territory, or District of the United States,
including the State of Illinois or any political subdivision
thereof, shall be entitled to representation and
indemnification to the same extent as members of the Illinois
National Guard under Section 90 of the Military Code of
Illinois.
(20 ILCS 1815/Pt. IV heading new)
PART IV
EQUIPPING AND UNIFORMS
(20 ILCS 1815/4-5 new)
Sec. 4-5. Equipping.
(a) As permitted by federal law and regulation, the State
Guard may use the federal military property and personnel of
the Illinois National Guard and shall reimburse the appropriate
federal authority for such use from State funds.
(b) The State Guard may use federal property of the
Illinois National Guard only to the extent that its members are
trained to use it properly and safely and, if necessary, under
the training and supervision of members of the Illinois
National Guard detailed by the Adjutant General.
(c) In accordance with the Illinois Procurement Code, the
State may, at its expense and subject to the availability of
State funds, procure and provide such other materials, as
needed, for the State Guard.
(d) State Guard commanders shall be held responsible and
accountable for all military property issued to them in a
manner similar to that enforced against commanders of the
Illinois National Guard under property accountability
regulations or instructions of the United States Army and Air
Force.
(e) In accordance with regulations prescribed by the
Adjutant General, members of the State Guard shall be held
responsible and may be held financially liable for any damage,
destruction, or loss, including loss of accountability, of
military property under their control in a manner similar to
that enforced against members of the Illinois National Guard
under applicable regulations or instructions of the United
States Army and Air Force.
(20 ILCS 1815/4-10 new)
Sec. 4-10. Uniforms.
(a) Uniforms for the State Guard shall be in general
conformity with those of the Illinois National Guard, except
that members of the State Guard shall wear the designation "IL"
on their class A/service dress and the designation "Illinois
State Army Guard", "Illinois State Air Guard", or "Illinois" on
their class C/utility uniforms.
(b) Officers shall pay for their uniforms. Enlisted members
shall be issued uniforms in accordance with regulations
prescribed by the Adjutant General and subject to the
availability of State funds.
(c) Officer and enlisted rank insignia shall be in
conformity with those of the Illinois National Guard.
(20 ILCS 1815/Pt. V heading new)
PART V
DISCIPLINE
(20 ILCS 1815/5-5 new)
Sec. 5-5. Military justice. While serving on State Active
Duty, members of the State Guard shall be subject to the
provisions of the Illinois Code of Military Justice.
(20 ILCS 1815/5-10 new)
Sec. 5-10. Terminating appointments. The Adjutant General
may prescribe, by regulation, administrative procedures for
terminating the appointment of any commissioned or warrant
officer for cause that are similar to those procedures which
apply to members of the Illinois National Guard, except that
any administrative procedures prescribed by the Adjutant
General under this Section shall provide that no officer is
entitled to present his or her case to a board of officers
unless the officer has at least 6 years of total military
service in the State Guard at the time the termination action
was initiated. Such administrative procedures shall require
the Adjutant General to characterize the officer's service as
honorable, general (under honorable conditions), or under
other than honorable conditions; however, in no case may the
Adjutant General characterize an officer's service as other
than honorable unless the officer is afforded the right to
present his or her case to a board of officers.
(20 ILCS 1815/5-15 new)
Sec. 5-15. Involuntary separation. The Adjutant General
may prescribe, by regulation, administrative procedures to
involuntarily separate any enlisted member from the State Guard
for cause that are similar to those procedures which apply to
members of the Illinois National Guard, except that any
administrative procedures prescribed by the Adjutant General
under this Section shall provide that no enlisted person is
entitled to present his or her case to a board of officers
unless the enlisted person has at least 6 years of total
military service in the State Guard at the time the separation
action was initiated. Such administrative procedures shall
require the Adjutant General to characterize the enlisted
member's service as honorable, general (under honorable
conditions), or under other than honorable conditions;
however, in no case may the Adjutant General characterize an
enlisted member's service as other than honorable unless the
enlisted member is afforded the right to present his or her
case to a board of officers.
(20 ILCS 1815/Pt. VI heading new)
PART VI
REGULATIONS
(20 ILCS 1815/6-5 new)
Sec. 6-5. Regulations. Regulations authorized under this
Act shall not be subject to the Illinois Administrative
Procedure Act and shall become effective upon approval by the
Adjutant General.
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Section 20. The State Guard Act is amended by repealing
Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16,
17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32,
33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48,
49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64,
65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80,
81, and 82.
Section 99. Effective date. This Act takes effect upon
becoming law.
INDEX
Statutes amended in order of appearance