The opinion
Webster, A.C.J.
(dissenting) — The majority correctly states that the test to be applied is "whether the injuries alleged arose out of conduct that has a military purpose or mission" (majority, at 524) and whether the actions of the parties "are so tied to the military roles ... as to invoke the prohibitions of Feres on jurisdiction of the civil courts." Majority, at 525. Having found neither test satisfied, I respectfully dissent.
In Feres v. United States, 340 U.S. 135, 146 , 95 L. Ed. 152 , 71 S. Ct. 153 (1950), the United States Supreme Court held that a service person may not recover for injuries which "arise out of or are in the course of activity incident to service." The purpose of the so-called "Feres Doctrine" is to keep the private sector out of military affairs which are either secret or involve national security. One of the rationales behind the doctrine is that if suits by a service member against the government were generally permitted, it "would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness." United States v. Johnson, 481 U.S. 681, 690 , 95 L. Ed. 2d *526 648 , 107 S. Ct. 2063 (1986) (quoting United States v. Shearer, 473 U.S. 52, 59 , 87 L. Ed. 2d 38 , 105 S. Ct. 3039 (1985)).
However,
[wjhen a soldier commits an act that would, in civilian life, make him liable to another, he should not be allowed to escape responsibility for his act 'just because those involved were wearing military uniforms at the time of the act. When military personnel are engaged in distinctly nonmilitary acts, they are acting, in effect, as civilians and should be subject to civil authority.
Durant v. Neneman, 884 F.2d 1350 , 1354 (10th Cir. 1990), cert. denied, 110 S. Ct. 728 (1990). Furthermore,
The doctrine of intra-military immunity is an outgrowth of the third Feres rationale that decries the propriety of civilian courts delving into military matters and calling to bar military decisions and institutions. . . .
. . . Thus, our evolving jurisprudence has created a zone of protection for military actors, immunizing actions and decisions which involved military authority from scrutiny by civilian courts. It is our conclusion, however, that this zone was never intended to protect the personal acts of an individual when those acts in no way implicate the function or authority of the military. We can find nothing that would dictate a contrary conclusion.
(Footnotes omitted.) Durant, at 1352-53.
This case does not involve military secrets or national security. The harassing phone calls and the defamation which occurred were not military acts. The alleged wrongs were "personal acts of an individual" which "in no way implicate the function or authority of the military." To hold otherwise, as the majority does today, would undermine the purpose of the Feres Doctrine — a result I do not believe is merited in this case.
Review denied at 116 Wn.2d 1034 (1991).