Traditionally, Michigan has been what’s referred to as a “one-party consent” state. Should that change? That’s the question that was put to the Michigan Supreme Court earlier this year. Unfortunately, by refusing to answer it, the law state of the law appears somewhat unsettled.
The issue arose in AFT Michigan v. Project Veritas, a case in which the Plaintiff sued the Defendants, in the United States District Court for the Eastern District of Michigan, after the individual defendant, with the aid of Project Veritas, misrepresented her identity in order to obtain an internship with the Plaintiff and covertly record the conversations of its staff members. The Plaintiff alleged that the Defendants’ actions violated Michigan’s eavesdropping statute, MCL 700.539.
Defendants moved to dismiss on the basis that Michigan is a “one-party consent” state and thus it is not unlawful to record conversations to which one is a party. Contrary to the existing state of the law, the Court concluded that the Michigan Supreme Court would interpret the statute in question in the same manner as a dissent lodged by Judge Brennan in Sullivan v Gray, which argued that “a participant is prohibited from recording the private discourse of any other person involved in the conversation unless all persons consent.” 17 Mich App 476, 485; 324 NW2d 58 (Mich Ct App 1982) (Brennan, J., dissenting).
Notably, however, in the same District Court Opinion, the Court granted leave for interlocutory appeal as to the following question:
Whether Michigan’s eavesdropping statute, Mich. Comp. Laws § 750.539[] et seq., may prohibit a person from recording, without the consent of all parties thereto, private conversations to which she is a party.
Opinion and Order, ATF Michigan v Project Veritas, No 17-13292 (ED Mich June 14, 2019), ECF No 104. While the Sixth Circuit denied the petition, Michigan Attorney General Dana Nessel’s motion to certify the question to the Michigan Supreme Court was granted.
Unfortunately, in a terse, two paragraph order, the Michigan Supreme Court declined to answer the certified question. In re Certified Question from United States Dist Ct, E Dist of Michigan, S Div, 959 NW2d 172 (Mich 2021). Thus, lower state courts are now forced to choose between following an almost 40-year-old decision of a panel of the Michigan Court of Appeals, or a Federal ruling stating its belief that the Michigan Supreme Court would hold contrary to the Court of Appeals. While the federal ruling does not technically have to be followed, one can imagine the confusion it will create.
