*1 117 472 v GRAY SULLIVAN 1982, 21, January at Detroit. Decided Docket No. 57301. Submitted 23, 1982. appeal applied Leave to for. June Gray, against brought James an action Sullivan Thomas A- alleging Gray that eaves- M. Black Katz and David Edward A. plaintiff and dropepd telephone between on recording Gray by of the statute the conversation in violаtion recording prohibiting without the consent the of a conversation parties. that all three defen- Plaintiff further divulging by using the recorded or violated the statute dants Kuhn, J., Court, D. Richard Oakland Circuit conversation. The defendants, holding judgment granted summary favor of the in monitoring prohibit of a conversation the statute does pаrticipants. all other participant the consent of without appeals. Held: Plaintiff statute, "eavesdrop”, par- defining excludes the term The applicability recording limiting ticipant the to "the potential others”, thereby contemplating that a of discourse eavesdropper not otherwise invоlved must be Therefore, complained of herein the conversation. conduct prohibition. is not within the Affirmed. J., He would hold that the statute V. J. dissented. either a of a conversation of all involved in a third consent would reverse. the conversation. He
Opinion of the Court — 1. Statutes Judicial Construction. susceptible unambiguоus of A which is on its face is statute however, terms; if an of its or construction [2] [3, [1] Validity, 4] 73 Am Jur tapping 68 Am Jur Am Jur construction, a criminal offense. ALR2d 2d, 2d, References 2d, Statutes §§ Statutes §§ Searches and and effect for Points in Headnotes 145,195. Seizures 24.§ 254. of state 855. legislation making wire Opinion op the Court give duty ambiguity effect to it is the court exists Legislаture, looking object of the statute intent applying which best accom- a reasonable construction purpose. plishes the statute’s *2 — 2. Judicial Construction. Statutes interpreted Ambiguous con- as a whole and are to be statutes provision produce give to a each and so as to effect to strued result; further, specific in a words harmonious and consistent ordinary meaning assigned unless a differ- their statute will be ent is indicated. Recording op — — 3. Criminal Law Statutes. Conversations wilfully using any a from The statute which eavesdrop upon of conversation without consent to a device parties mean to and defines thereto which overhear, record, any part permission contemplates that without their discourse of others eavesdropper potential be a third otherwise must upon; being eavesdropped there- involved in the conversation fore, prohibited by participant in the conversation is recording permission from the conversation statute (MCL parties party or involved in the conversation of the other 28.807[1][2],28.807[3]). 750.539a[2], V. J. — Recording op — 4. Law Conversations Statutes. Criminal party, as as a third A in a well prohibited recording conversation unless all from (MCL involved the conversation consent to such seq.). seq.; et 750.539et MSA 28.807 Byington Gage, Bushnell, Doctoroff, Reizen & (by Jr.), Eugene Gage Beach, A. H. Noel for and plaintiff.
Simpson, Sullivan, Moran & Burnett Ranger, Bone, Ward & for defendants. P.J., and V. J. Brennan
Before: N. J. Kaufman, and R. L. Tahvonen,* JJ.
* assignment. Appeals by judge, sitting on of Circuit the Court op Opinion the Court
Per Curiam. The issue presented in this appeal is whether MCL 750.539 et seq.; MSA 28.807 et seq., prohibits a telephone from tape-recording the conversation absent consent of all other participants. The trial court ruled that such participant recording is not pro- hibited, and, therefore, dismissed by summary judgment plaintiffs civil suit upon based the stat- ute. Plaintiff appeals as of right. litigation
This 3, arose out of a January telephone conversation plaintiff between and defen- dant James Gray. The conversation related to the negotiations breakdown between defendants Gray and Edward Katz and plaintiff involving the sale plaintiffs automobile dealership. Unbek- nownst to plaintiff, Gray recorded the discourse with a tape cassette recorder. The recording was subsequently transcribed and utilized by defen- *3 dants in the course of litigation stemming from the dealership negotiations. Defendant Black was an associate firms with attorney one of the law representing and Gray Katz in that lawsuit. 28.807(3)
MCL 750.539c; MSA provides: "Any person present who is or present who is not during conversation and who wilfully uses any the eavesdrop device to upon the conversation without parties thereto, consent of all or knowingly who aids, employs procures or another to do the same in section, violation of this is guilty felony punishable by imprisonment prison in a state for not more than years 2 or by a fine of not more than $2,000.00, or both.” The act further prohibits divulgence use or of information obtained by eavesdropping. MCL 750.539e; 28.807(5). MSA The pertinent counts of plaintiff s complaint were brought pursuant MCL 750.539h; 28.807(8), MSA provides which for Gray 479 v Opinion op the Court Plain- of the statute.1 for violations remedies civil on eavesdropped essentially tiff 3, 1978, telephone January further three it, that all defendants divulging the using the statute violated or dialogue. transcribed 28.807(1)(2) de- expressly 750.539a(2); MSA "eavesdrop”: term
fines " overhear, 'eavesdropping’ means 'Eavesdrop’ or record, any part of per- all permission of others discourse Neither this definition engaged in the discourse. sons modify or affect shall provision of this аct any other any law or gence or concerning interception, divul- regulation by commu- messages transmitted recording of carriers.” nications common recording is of whether question
The Al this jurisdiction. novel one to is a forbidden eavesdrop have examined cases though prior on impact to its regard statute with ping trials, none have in criminal of evidence admission Peo us. Cf. issue now before resolved the directly 746 Artuso, 396; 298 NW2d App ple v 100 Sacorafas, 370; 256 v App 76 Mich People (1980), 64 Mich Livingston, People (1977), NW2d Mattison, (1975), People v 247; NW2d App (1970). Moreover, 453; 182 NW2d 26 Mich in are jurisdictions from other decisions while since structive, dispositive аre not ultimately they distin significantly statutes are on they based seq.; 28.807 MCL 750.539 et from guishable *4 et seq.2 1 complaint defen- plaintiffs count of An additional also dis- right privacy. count was plaintiffs to That
dants violated
appeal
subject of
by summary judgment but has not been
missed
Court.
to this
2
seq.;
2511;
Code Ann
See, e.g.,
631 et
Ga
Penal Code §
18 USC
Cal
App
480
117 Miсh
476
Opinion of the Court
The issue here is
one
strictly
con
struction. The rules
interpretation
for statutory
Pittsfield Char
were most
in
recently summarized
Twp City
Saline,
ter
v
99,
103
App
Mich
104-
(1981):
105;
The operative language of 28.807(3) prohibits from "wilfully us[ing] any device to eavesdrop upon [a] the consent of all рarties thereto”. As statute, used the term "eavesdrop” means seq.; 21, 1782; 26-3001 et § Okla Stat tit Pa § Stat Ann tit 5701 et § seq. *5 Opinion op the Court part any record, "overhear, to of the private discourse of others persons engaged permission of all in the dis- 28.807(1X2). 750.539a(2); MCL MSA course”. We language, statutory face, on its unam- believe biguously excludes from the limiting eavesdropping by subject definition to "the discourse of others”. conversation contemplates potential The statute that a eaves- dropper must be a third in- otherwise being eavesdropped volved the conversation on. participants desired Had the to include might definitiоn, the "of within the others” changed have been excluded to "of others or others”. with argues that
Plaintiff 28.807(3) participants must to both and non- participants "[a]ny it since relates to who is present present during or who is not a * * disagree. Although *”. We the as to the phrase arguably persons ambiguity an creates by act,
affected requested plaintiff inoperative would render statutory words "of others” in the definition of eavesdropping. logical interpretation may A more gives be made that full effect to that "[a]ny person present definition. The words who is present” merely acknowledge or who is not eavesdropping may bе committed one who is actually physical proximity in close to a conversa- away tion or one who is some distance but eavesdrops utilizing plainly, Quite a mechanical device. "present” during may
one be a conversa- being tion without the conversation presence being apparent without his versing. con- to those example, eavesdropping party For literally open could be under the eaves outside an window. 117 Opinion op the Court anomaly. lead to one
This construction does participant may record a conversation While a apparent impunity, with his sole consent is insuf- permissible the ficient to make participant may party. Thus, record while apparently may employ he parties However, result, him. this third although incongruous to do so for *6 necessarily face,
on its is expect inconsistency. may an An individual to record their discourses. those he converses with request Still, held "off absent a that discussions be еxpect only record”, it is to that a reasonable repeated, perhaps may conversation ory be from mem- party or from the handwritten notes of a to by partici- A made a the conversation. pant nothing than a more more accurate record of what was said. Whether an individual should rеasonably
expect ostensibly private that an con- by participant versation will be related a to third parties depends on that individual’s relation to the participant. may gauge other The individual his expectations according to his own evaluation of person speaks. ability to whom he He hаs upon expectation. says to limit what he based that party unilaterally given permis- When a third upon conversation, sion to listen a unknown to participants, participants other those other are no longer expecta- to able evaluate and form accurate they knowledge tions since are without party. Therefore, it is not inconsistent to permit person to record and utilize conversations participates yet deny right he him the to unilat- erally grant ability parties. to third applying case,
In this construction to the instant summary judg- we are led to the conclusion that appropriate. ment was Plaintiff’s claims are based alleged recording on the of his conversation Brennan, V. J. J. Gray, defendant in that conversa- conduct tion. The does not come within the prohibition, plaintiffs and, therefore, claims are unenforceable as a matter of law. No development possibly justify right factual could to reсover under statute. Cf. Muscat, (1978). Partrich v 729-730; NW2d
Affirmed. (dissenting). respectfully
J.V. I dissent. I find that the statute the record- ing whether a third participant, unless all involved in the given permission. conversation have their face, On its the statute does not state that a who is a to the conversation cannot Rather, violate the statute. if the had participants, intendеd that the statute not I think that it would have stated that intention in language. very clear fact, As a matter of first participants of the statute indicates that *7 the person ’’Any conversation can violate the statute: * * *” added). present (emphasis who is If Legislature participants, the intended to exclude I any think that it would hаve stated not a Moreover, to the conversation. the statute participants also states that all must consent to the in the conversation
overhearing, recording, ampli- fying, transmitting me, or of the To conversation. plainly prohibits participants, this as well as third parties, designated from the activities in the stat- ute without disclosure to the to the other being conversation that the conversation is over- amplified, heard, recorded, or transmitted. Legislature Moreover, I think the fact that the signifi- "eavesdropping” even defined the word App 117 V.J. I participants, If the apply cant. statute did not not have defined think that the would Legislature mean- the the common eavesdropping word since Therefore, if one ing of the word is to overhear. overhearing (eavesdrop- violated the statute conduct, as such ping) any then transmitting, resulting or recording, amplifying, How- overhearing prohibited. would be from the eavesdropping, еver, did define Legislature the "or”, overhearing only as not using disjunctive the transmitting or the recording, amplifying, but also statute, Thus, the one to violate conversation. or or to overhear record only needs to me that clearly This indicates amplify. beyond conduct specifically of the word ordinary meaning that nоt could be prohibiting only conduct aby partic- but also accomplished by ipant.
Further, seems to focus on the majority others”, contained phrase "private discourse definition, supporting as their conclusion participants. By the statute does not context, with the definition reading statute, in the eavesdrоp for the word substituted supported: is not majority’s present "Any person present who is or who is not wilfully uses during any part permission conversation and who [overhear, record, any transmit device to or discourse of others without persons engaged all in the or discourse] aids, per- knowingly procures another employs who section, guilty son to do the same in of a of this violation * * 28.807(3), MCL felony MSA 28.807(1X2). 539a(2); 750. *8 "private dis- phrase The "of others” modifies V. J. necessarily imply course”, which does that a potential eavesdropper must be a third Moreover, otherwise involved in the conversation. is followed the words "without permission persоns engaged of all in the discourse” added), (emphasis indicating that the unilateral recording conversation, of a unbeknownst to the permitted. reading involved, Thus, others is not partici- whole, the statute I as find that a would pant prohibited recording from dis- any course of other involved in the conver- sation unless all consent. protect
It is on the incumbent courts to conver- recordings sations from secret because the so- phisticated equipment electronic com- panies government agencies and at have their disposal. recordings The use of these intrudes into phase every person’s company’s аof or a internal requires policing. affairs and strict There is obvi- ously given tape recording more credence to a Further, than a verbal recollection. the recorded easily only conversation edited and the rebuttal recording. would be another Violations of these carry restrictive statutеs should strict serious penalties discourage I so as to future use. cannot repeat enough emphasis for that there has been a deluge sophisticated listening equip- electronic ment within the last two decades that threatens privacy. Therefore, I all conclude that the statute whether participant, per- a third or a unless all given sons involved their conversation have permission. I would reverse.