High court won't wade into confusion over Michigan's secret recording law

Beth LeBlanc
The Detroit News

The Michigan Supreme Court will not weigh in on whether the state's eavesdropping law allows an individual to record a conversation without the consent of other participants. 

In a brief order Wednesday, the high court denied a Detroit federal district judge who had asked justices to clarify the statute's reach. Justice Richard Bernstein, the order said, would have answered the question.

The high court's decision to stay silent on the matter leaves some uncertainty about the rules governing recordings in Michigan, with a conflict arising between a 1982 state appellate panel decision and a 2019 federal ruling.

The Michigan Supreme Court's Hall of Justice is seen, Friday, Jan. 17, 2020, in Lansing, Mich.

U.S. District Judge Linda Parker had certified the question to the high court in October after she ruled in March 2019 that Michigan's law prevents any person present or not present in a private conversation from recording it without consent from all parties.

Michigan Attorney General Dana Nessel had requested the question be put to the Supreme Court because Parker's ruling contradicted a 1982 state Court of Appeals opinion.

The 1982 opinion ruled the eavesdropping outlawed in statute involved situations where a third party listened into or recorded a conversation unbeknownst to the participants in the conversation, such as wire tapping or the bugging of a location. 

Since the 1982 opinion, Michigan has been considered a "one-party consent" state, meaning anyone who is a party to a conversation could record it without the knowledge of other participants.

The case Parker ruled on involved a 2017 lawsuit between the American Federation of Teachers Michigan and 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 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. The union alleged she likely distorted the recordings. 

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 argued state law requires all parties in a conversation to consent to a recording. 

Parker, in her March 2019 ruling, said a dissent in the 1982 ruling opined Michigan was an "all-party consent" state. She noted the Michigan Supreme Court had not weighed in on the matter. 

"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.

Nessel intervened in the case in September 2019 because of the uncertainty Parker's decision had on the state's eavesdropping law, though her deputy solicitor general noted state criminal courts are not bound by the federal decision.

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