Dickerson v. Raphael

Citation222 Mich.App. 185,564 N.W.2d 85
Decision Date07 March 1997
Docket Number176209,Docket Nos. 172610
PartiesDorothy Jean DICKERSON, Plaintiff-Appellant/Cross-Appellee, v. Sally Jessy RAPHAEL and Multimedia Entertainment, Inc., Defendants-Appellees/Cross-Appellants, and G.T.N., John Mroz, John Peak, and Steve Bostwick, Defendants-Appellees. Dorothy Jean DICKERSON, Plaintiff-Appellee, v. Sally Jessy RAPHAEL, Multimedia, Inc., Robert Waster and G.T.N., Defendants, and John Mroz and Steve Bostwick, Defendants-Appellants.
CourtCourt of Appeal of Michigan (US)

Logeman & Associates, P.C. by Leo E. Januszewski and Robert E. Logeman, Ypsilanti, for Dorothy J. Dickerson.

Miller, Canfield, Paddock and Stone, P.L.C. by Gregory L. Curtner, Michael C. Fayz, and Abigail Elias, Detroit, for Sally Jessy Raphael and Multimedia Entertainment, Inc.

Clark & Knight by William E. Clark, Southfield (Paskin, Nagi & Baxter, P.C. by Jeannette A. Paskin and Daniel J. Seymour of counsel), Detroit, for G.T.N., John Mroz, John Peak, and Steve Bostwick.

Before CORRIGAN, P.J., and BANDSTRA and W.A. CRANE *, JJ.

CORRIGAN, Presiding Judge.

This appeal presents issues under the Michigan eavesdropping statutes, M.C.L. § 750.539 et seq.; M.S.A. § 28.807 et seq. 1 In Docket No. 172610, plaintiff Dorothy Dickerson appeals by right the order denying her motion for a directed verdict. Defendants Multimedia Entertainment, Inc., and Sally Jessy Raphael cross appeal the circuit court's refusal to admit certain evidence. We reverse the order denying a directed verdict and remand for a determination of plaintiff's damages consistent with this opinion. We affirm the exclusion of evidence. In Docket No. 176209, defendants John Mroz and Steve Bostwick appeal by right the denial of their motion for sanctions, contending that plaintiff's claims against them were frivolous. We affirm the denial of sanctions.

How different life in this state would be if everyone had to expect that their every conversation, their every careless phrase or ill-advised statement could be captured and preserved for all time. Such a life-style is not what is expected nor desired by the members in a free society. [People v. Hall, 88 Mich.App. 324, 330, 276 N.W.2d 897 (1979).]

I. Underlying Facts

This case involves the surreptitious, nonconsensual recording, simultaneous transmission, and later broadcast of plaintiff's private conversation with her children by certain defendants, who were not themselves parties to the conversation. In 1988, plaintiff, then a fifty-six-year-old mother of eight and a member of the Church of Scientology for twenty years, began to work as a staff member for the Church of Scientology. In 1991, one of her daughters, Valda Gratias, decided to confront plaintiff about her increasing involvement with Scientology. Ms. Gratias felt that the Church of Scientology was dominating plaintiff, causing her to sever all ties to her family.

Ms. Gratias intended to appear on the Sally Jessy Raphael television show, which is produced and syndicated by defendant Multimedia. On May 26, 1991, Ms. Gratias and her sister wrote to their mother of their intent to contact the national media to "expose" Scientology. 2 Ms. Gratias then contacted the Sally Jessy Raphael show. Indeed, plaintiff's own diary entry of June 6, 1991, reflected her knowledge that Ms. Gratias would appear on the show. Plaintiff had no inkling, however, that her daughter planned to videotape their conversation for rebroadcast on national television. Ms. Gratias told the show's producer that she wanted to record surreptitiously her conversation with her mother. The producer then contacted defendant G.T.N., a Michigan corporation, and arranged with G.T.N. to record the family's conversation while a concealed microphone worn by Ms. Gratias simultaneously broadcast it.

On Saturday, June 9, 1991, Ms. Gratias, her husband Doug Gratias, and plaintiff's son Eric arrived unannounced at the Scientology offices. Plaintiff's daughter was visibly upset and sought a "heart-to-heart" conversation with her mother. Because plaintiff did not wish to disrupt her co-workers and wanted to prevent others from overhearing their discussion, the family went to a nearby public park in Ann Arbor, where they sat on park benches. At the park, plaintiff's children discussed with their mother her income, the stability of her marriage, and her religious beliefs. At no point did defendants or plaintiff's children inform plaintiff that Ms. Gratias was wearing a transmitting device that was broadcasting their conversation surreptitiously to defendants, third-party nonparticipants.

The microphone Ms. Gratias wore transmitted the family's conversation to recording equipment in an unmarked van parked nearby. Defendant G.T.N., through its employee defendant John Peak, simultaneously recorded the audio and video portions of Mrs. Dickerson's conversation with her son, daughter, and son-in-law. Four vignettes from that recording were thereafter replayed on defendant Raphael's television show in July 1991.

In plaintiff's suit, she alleged, among other counts, violation of the Michigan eavesdropping statutes, M.C.L. § 750.539 et seq.; M.S.A. § 28.807 et seq. The trial court denied plaintiff's motion for a directed verdict regarding the alleged violation of the statutes. The jury thereafter returned a verdict of no cause of action in favor of defendants. 3

Preliminarily, this case does not involve the media's First Amendment right to report a story. Nor does this case involve the merits of the Church of Scientology, despite the parties' determined efforts to interject that issue. This case also does not turn on Ms. Gratias' right to record a conversation in which she participated. Rather, this case presents the narrow issue whether the Michigan eavesdropping statutes prohibit third parties from recording covertly, while it occurs, a private conversation in which they are not participants and then rebroadcasting that conversation.

II. The Eavesdropping Statutes

This case requires that we interpret the Michigan eavesdropping statutes. Statutory interpretation is a question of law that we review de novo. Attorney General ex rel Dep't of Natural Resources v. Michigan Property & Casualty Guaranty Ass'n, 218 Mich.App. 342, 344, 553 N.W.2d 700 (1996).

In Michigan, unlawful eavesdropping is a felony:

Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both. [M.C.L. § 750.539c; M.S.A. § 28.807(3).]

Similarly, divulging unlawfully obtained information is a felony:

Any person who uses or divulges any information which he knows or reasonably should know was obtained in violation of sections 539b, 539c or 539d is guilty of a felony, punishable by imprisonment in a state prison not more than 2 years, or by a fine of not more than $2,000.00. [M.C.L. § 750.539e; M.S.A. § 28.807(5).]

Additionally, Michigan statutory law provides the following civil remedies for eavesdropping violations:

Any parties to any conversation upon which eavesdropping is practiced contrary to this act shall be entitled to the following civil remedies:

(a) An injunction by a court of record prohibiting further eavesdropping.

(b) All actual damages against the person who eavesdrops.

(c) Punitive damages as determined by the court or by a jury. [M.C.L. § 750.539h; M.S.A. § 28.807(8).]

Under statute, "eavesdropping" is defined as "to overhear, record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse." M.C.L. § 750.539a(2); M.S.A. § 28.807(1)(2). The parties do not dispute that defendants overheard, recorded, amplified, and transmitted the discourse of others without the permission of all. Defendants nevertheless argue that the conversation was not "private" and was not the discourse of "others."

When interpreting the eavesdropping statutes, the circuit court relied on Fourth Amendment cases involving law enforcement activity to detect criminal behavior. The eavesdropping statutes, however, specifically exclude from their ambit law enforcement personnel acting within their lawful authority. In re Jenkins, 437 Mich. 15, 27, n. 12, 465 N.W.2d 317 (1991); M.C.L. § 750.539g(a); M.S.A. § 28.807(7)(a). The circuit court therefore erred in relying on Fourth Amendment cases to craft its definition of "private discourse." Doe v. Mills, 212 Mich.App. 73, 85-86, 536 N.W.2d 824 (1995).

Because the eavesdropping statutes do not define the term "private," we resort to the dictionary to ascertain the meaning of the term. Nelson v. Grays, 209 Mich.App. 661, 664, 531 N.W.2d 826 (1995). A conversation that is private is "intended for or restricted to the use of a particular person or group or class of persons ... [and is] intended only for the persons involved." Webster's Third New International Dictionary, Unabridged Edition (1966). Like the common law right of privacy, the privacy protected by the statute may be waived or lost by clear, unequivocal conduct estopping its assertion. Doe, supra at 86-87, 536 N.W.2d 824.

The circuit court next erred in construing the eavesdropping statutes as allowing a private participant in a conversation to broadcast it simultaneously to other private nonparticipants. People v. Collins, 438 Mich. 8, 475 N.W.2d 684 (1991). While Collins permits law enforcement officers to monitor police informants, it does not govern the application of the eavesdropping statutes to persons who are not peace officers or their agents. Our Supreme Court...

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