Federal judge questions Michigan's secret recording law, asks Supreme Court to weigh in

Beth LeBlanc
The Detroit News

A Detroit federal district judge has asked the Michigan Supreme Court to clarify whether Michigan's eavesdropping law allows an individual to record a conversation without the consent of other participants. 

Attorney General Dana Nessel requested the question be put to the state's high court after U.S. District Judge Linda Parker ruled in March of last year that Michigan's law prevents any person present or not present in a private conversation from recording it without the consent of all parties. 

The ruling conflicts with a 1982 Michigan Court of Appeals opinion, in which the majority ruled the eavesdropping outlined in the law only involved situations where a third party listened into or recorded a conversation unbeknownst to the participants in the conversation. 

U.S. District Judge Linda Parker

Michigan has since been known as a "one-party consent" state, meaning anyone who is a party to a conversation could record it without the knowledge of other participants in the conversation. The law largely has been understood to bar recordings by people not in the conversation, including through wire tapping or the bugging of a location.

The eavesdropping case in which Nessel intervened to clarify state law arises from a lawsuit filed in 2017 by the American Federation of Teachers Michigan against the nonprofit Project Veritas, which does undercover reporting work for largely conservative causes. 

The AFT filed suit against Project Veritas to prevent it from publishing or disseminating information that an AFT intern obtained while working for the union. AFT alleged the intern, Marisa Jorge, was an operative for Project Veritas who had "likely" obtained information by recording conversations without consent and later distorted the recordings. 

The teachers union alleged the information was proprietary, that Jorge had breached her duty of loyalty to the union and that she had violated the state's eavesdropping law. 

Jorge's attorneys have argued she operated within the law in obtaining audio and video from conversations she was part of because Michigan is a one-party consent state. The AFT has argued state law requires all parties in a conversation to consent to a recording. 

Parker cited a dissent in the 1982 case in her March 2019 ruling that Michigan was an "all party consent" state. The Michigan Supreme Court, whose opinion would usually guide a federal court's ruling on a matter of state law, "has not specifically addressed the question presented here."

"In the absence of a decision by Michigan’s Supreme Court, the Michigan Court of Appeals decisions, although the starting point, are not controlling and may be disregarded by the court if convinced that the Michigan Supreme Court would decide otherwise," Parker wrote in March 2019. 

Because of the conflict between Parker's ruling and the 1982 majority ruling, Nessel asked in September 2019 to have the question certified to the Michigan Supreme Court. 

"Michigan is the final arbiter of state law, and Michigan's state criminal courts are not bound by this court's opinion," Deputy Solicitor General Ann Sherman wrote.

"Nevertheless, this court's opinion creates uncertainty about what is criminal under Michigan law," she said.

Nessel's office did not immediately respond to an email seeking comment.

Parker granted the request Sept. 28 of this year and certified the question to the Supreme Court on Wednesday. The state Supreme Court received the certified question Thursday, court spokesman John Nevin said. 

If the Supreme Court hears the case, Nessel's office has said it would build a conflict wall to argue both interpretations of Michigan's eavesdropping law. 

Parker's request to the seven justices marks the third time in five years that the Michigan Supreme Court has been asked a certified question by federal judges, Nevin said

In 2016, a California federal court asked the Michigan Supreme Court to clarify Michigan's Personal Privacy Act concerning a complaint from a Michigan resident who alleged his music preferences on Pandora were made accessible to advertisers. 

Earlier this year, a Grand Rapids federal judge asked the high court to clarify Michigan's 1945 and 1976 emergency management laws. The Supreme Court's response on Oct. 2 overturned the 1945 law and found Gov. Gretchen Whitmer had used the 1976 law improperly by extending her executive orders beyond April 30 without the approval from the Legislature.

Parker's Wednesday motion will stay the AFT, Project Veritas case through late November to allow the Michigan Supreme Court time to consider the question.