1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

EMANI LOVE, et al., 

 Plaintiffs, 

v 

SECRETARY OF STATE RUTH 

JOHNSON, 

 Defendant. 

NO. 2:15-cv-11834 

HON. NANCY EDMUNDS 

MAG. ELIZABETH A. STAFFORD

DEFENDANT SECRETARY OF 

STATE RUTH JOHNSON’S 

COURT-ORDERED 

SUPPLEMENTAL BRIEF 

 

AMERICAN CIVIL LIBERTIES 

 UNION FUND OF MICHIGAN 

Jay D. Kaplan (P38197) 

Daniel S. Korobkin (P72842) 

Michael J. Steinberg (P43085) 

Attorneys for Plaintiffs 

2966 Woodward Avenue 

Detroit, MI 48201 

(313) 578-6812 

 

AMERICAN CIVIL LIBERTIES 

 UNION FOUNDATION 

John A. Knight 

Attorney for Plaintiffs 

180 North Michigan Avenue, Suite 2300 

Chicago, IL 60606 

(312) 201-9740 

PROSKAUER ROSE LLP 

Steven R. Gilford 

Michael F. Derksen 

Jacki L. Anderson 

Attorneys for Plaintiffs 

70 West Madison, Suite 3800 

Chicago, IL 60602 

(312) 962-3550 

 

Erik A. Grill (P64713) 

Kevin Himebaugh (P53374) 

Jeanmarie Miller (P44446) 

Denise C. Barton (P41535) 

James E. Long (P53251) 

Assistant Attorneys General 

Attorneys for Defendant Secretary of State 

Ruth Johnson 

Michigan Department of Attorney General 

Civil Litigation, Employment & 

 Elections Division 

P.O. Box 30736 

Lansing, MI 48909 

(517) 373-6434 

 / 

Case 2:15-cv-11834-NGE-EAS ECF No. 75, PageID.1285 Filed 06/24/16 Page 1 of 8
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DEFENDANT SECRETARY OF STATE RUTH JOHNSON’S 

COURT-ORDERED SUPPLEMENTAL BRIEF 

 BILL SCHUETTE 

 Attorney General 

 Erik A. Grill (P64713) 

Kevin Himebaugh (P53374) 

Jeanmarie Miller (P44446) 

Denise C. Barton (P41535) 

James E. Long (P53251) 

 Assistant Attorneys General 

Attorneys for Defendant Secretary of 

State Ruth Johnson 

Civil Litigation, Employment & 

Elections Division 

 P. O. Box 30736 

 Lansing, Michigan 48909 

 (517) 373-6434 

Case 2:15-cv-11834-NGE-EAS ECF No. 75, PageID.1286 Filed 06/24/16 Page 2 of 8
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[Defense Counsel] Q: Do you have any intention to change the 

current 2016 policy regarding the change of sex designation 

on Michigan driver's licenses or state IDs? 

[Secretary of State Johnson] A: None. (Ex. C, p 63 ln 19-23). 

Defendant Ruth Johnson has moved for judgment on the 

pleadings on grounds of mootness, based upon a March 2016 policy 

update that allows each of the Plaintiffs to change the sex designation 

of their drivers’ license (DL) or Personal Identification (PID) card by 

simply presenting a passport or a passport card, or a court order issued 

by a court of competent jurisdiction, or an amended birth certificate. (R. 

48, Mot. for Judgment, ID# 454-466). The Secretary has provided a 

signed affidavit stating that she relied upon the recommendation of 

Michael Wartella in approving both the current 2016 policy and the 

earlier 2011 policy upon which Plaintiffs based their claims. (Ex. A, 

Johnson Aff., ¶3). Secretary Johnson also stated that she has 

“absolutely no intention” of changing the policy again. (Ex. A, ¶4). 

Mr. Wartella has also testified that the 2016 policy change was his 

decision, and that he does not intend to change the policy again. (Ex. B, 

Wartella Dep., p 52 ln 12-p 54 ln 9). In short, the Secretary relies on 

Case 2:15-cv-11834-NGE-EAS ECF No. 75, PageID.1287 Filed 06/24/16 Page 3 of 8
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Mr. Wartella’s recommendation, and neither Mr. Wartella nor the 

Secretary have any intention of reverting to the prior policy. 

On Friday, June 10, 2016, the Plaintiffs took the deposition of 

Secretary Johnson. Plaintiffs have argued that an e-mail that they 

refer to as a “campaign promise” somehow influenced department policy 

for DL/PID, and that such statements indicate that the Secretary will 

revert back to the 2011 policy given an opportunity (See e.g. R. 54, 

Response to Mot. for Prot. Order, ID# 529). But during Secretary 

Johnson’s deposition, it became clear that Plaintiffs’ theory about a 

connection between the statements and the 2011 Driver’s License Policy 

is simply wrong: 

Q: Did you see this e-mail and respond to it in 2010? 

A: I did not. 

Q: Who did? 

A: I had a number of people that worked on the campaign. 

Someone from the campaign, it appears, did respond. 

* * * 

Q: And did those people who worked on your campaign talk 

to you about your positions before responding? 

A: No. 

(Ex. C, Johnson Dep, p 16 ln 13-p 17 ln 5). 

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Q: So what -- I'm sorry. What was your campaign 

position, then, with respect to changing the gender on 

a license? 

A: I did not have one. 

(Ex. C, p 24 ln 1-22). [Emphasis added]. The Secretary later reiterated 

that, once elected, she relied on Mr. Wartella’s expertise in this area: 

A: When I came into office, we kept [the then-existing 

surgical requirement]. I rely on Mike Wartella to make 

recommendations. He's the expert. 

Q: Okay, but as I understand it, it was your decision to keep 

that. 

A: It was Mike Wartella's decision and I did agree to it. 

(Ex. C, p 24 ln 1-22). 

So, Plaintiffs’ entire theory that the 2011 policy was motivated 

by—or was an implementation of—some “campaign promise” has 

crumbled to dust. The Secretary did not make the statement, she was 

not consulted about the statement, and she did not have a campaign 

position on changing gender on licenses. The campaign statement did 

not represent her position and it could not, therefore, be the basis for 

her approving the 2011 policy.1 Instead, she relied on Mr. Wartella. 

 

1 “The change came about—by me—that we were trying to take the 

medical information out of the branch office transaction. We wanted a 

legal document that showed that a sex change had occurred. We were 

trying to also protect the privacy of customers so they wouldn’t have to 

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 In addition, the Secretary again made clear that she has no 

intention of changing this policy again: 

Q: Do you have any intention to change the current 2016 

policy regarding the change of sex designation on Michigan 

driver's licenses or state IDs? 

A: None. 

(Ex. C, p 63 ln 19-23). Simply stated, the 2011 policy upon which 

Plaintiffs based their complaint is gone and is not coming back. 

Plaintiffs have elsewhere argued that the updated policy does not 

address non-citizens who cannot obtain a U.S. passport. But all the 

Plaintiffs are citizens, and this is not a class action. Also, each of the 

Plaintiffs has admitted that they are legally eligible to obtain a passport 

(or already have one), and thus they lack standing to raise issues on 

behalf of non-citizens. Each plaintiff, through Requests for Admission, 

has indicated that they either already possess or are eligible to obtain a 

passport or passport card, and they are aware that they may now use 

these documents to change the sex on their Michigan DL/ID. Indeed, in 

their depositions, Plaintiffs A.M. and Tina Seitz admitted that they can 

 

provide medical information at the counter and we were trying to 

simplify, for staff, that it was a legal document that could be used for 

any time we needed to make a correction to the sex designation on a 

driver’s license.” (Ex. B, Wartella Dep., p 24 ln 12-21). 

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change their DL/IDs today, but are refusing to do so. (Ex. D, A.M. Dep., 

p 38 ln 12-p 41 ln 9; Ex. E, Seitz dep, p 53 ln 20-24). Whatever their 

motivations for abstaining from the relief they sought in this lawsuit—

i.e. changing the sex designation on their state ID to avoid threats of 

harm or the revelation of personal information—it is clear that all the 

plaintiffs have this remedy available to them. The prayer for relief 

enjoining the enforcement of the challenged 2011 policy is moot because 

that policy has been abandoned, and it is absolutely clear that it could 

not be reasonably expected to recur. Friends of the Earth, Inc. v. 

Laidlaw Envtl Servs (TOC) Inc., 528 U.S. 167, 189 (2000). 

CONCLUSION AND RELIEF SOUGHT 

For these reasons and the reasons set forth in the earlier briefing 

and at oral argument, Defendant requests that this Court grant her 

Motion for Judgment on the Pleadings and dismiss Plaintiffs’ complaint 

with prejudice. 

 BILL SCHUETTE 

 Attorney General 

 s/Erik A. Grill 

 Erik A. Grill (P64713) 

 Attorney for Defendant Secretary of 

Dated: June 24, 2016 State Ruth Johnson 

Case 2:15-cv-11834-NGE-EAS ECF No. 75, PageID.1291 Filed 06/24/16 Page 7 of 8
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CERTIFICATE OF SERVICE 

I hereby certify that on June 24, 2016, I electronically filed the 

foregoing paper with the Clerk of the Court using the ECF system 

which will send notification of such filing of the foregoing document as 

well as via U.S. Mail to all non-ECF participants.

 s/Erik A. Grill 

Erik A. Grill 

Assistant Attorney General 

P.O. Box 30736 

 Lansing, Michigan 48909 

 (517) 373-6434 

 grille@michigan.gov 

 P64713 

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