UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

EMANI LOVE, et al.,

Plaintiffs,

v

RUTH JOHNSON, 

Defendant.

NO. 2:15-cv-11834

HON. NANCY EDMUNDS

MAG. ELIZABETH A. STAFFORD

DEFENDANT RUTH JOHNSON’S 

REPLY TO MOTION FOR 

JUDGMENT ON THE PLEADINGS

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 SOM Defendant Johnson

Michigan Department of Attorney General

Civil Litigation, Employment & 

 Elections Division 

P.O. Box 30736

Lansing, MI 48909

(517) 373-6434

/

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DEFENDANT RUTH JOHNSON’S REPLY TO MOTION FOR 

JUDGMENT ON THE PLEADINGS

The Plaintiffs’ response in this case can best be described as an attempt to 

move the goal post and seek relief that is no longer necessary or required to resolve 

this case. In the original complaint, Plaintiffs contended that Defendant’s policy 

requiring a birth certificate to change the sex designation on Michigan’s driver 

licenses or personal identification (PID) cards was “more restrictive” than “what 

existed in the past”. (R. 1, Complaint ¶10, Pg ID #6.) 

Now that Defendant Johnson recognizes a valid US passport, a valid US 

passport card, and a court order as acceptable forms of documentation to change an 

individual’s sex designation on a Michigan driver’s license or PID, they no longer 

focus on the burden of obtaining a drivers license or PID because a birth certificate 

was required. Instead, they now claim that the “burden” of requiring a physician’s 

affidavit is significant because some transgendered persons may not want, need, or 

be able to afford a passport. (R. 57, Plaintiffs’ Brief, p. 19.) But this is not a class 

action. All six Plaintiffs can obtain such documents under Michigan’s updated 

policy, and some of the Plaintiffs already have passports. (R. 1, Complaint, ¶¶ 58 

and 66.) Thus, their claims are no longer “live” and are moot. Chirco v. Gateway 

Oaks, L.L.C., 384 F.3d 307, 309 (6th Cir. 2004). 

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I. Defendant’s motion and related filings are not defective; the evidence

of an updated drivers policy is undisputed. 

A motion for judgment on the pleadings brought pursuant to Fed. R. Civ. P. 

12(c) is determined using the same standard that applies to a review of a motion to 

dismiss under Fed. R. Civ. P. 12(b)(6). Poplar Creek Development v. Chesapeake 

Appalachia, 636 F.3d 235, 240 (6th Cir. 2011). In this case, this Court may 

consider the allegations in the complaint as well as matters of public record, orders, 

items appearing in the record of the case, and exhibits attached to the complaint. 

Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001). Because this Court 

may consider the allegations in Plaintiffs’ Complaint and other items appearing in 

the record, Defendants’ motion for judgment of pleadings is appropriately before 

this Court. Furthermore, as described below, there can be no good faith argument 

that Defendant Johnson’s policy remains unchanged.

A. The record in this case is undisputed; an amended birth 

certificate is not the only means to change one’s sex designation 

on a Michigan driver’s license or PID.

Plaintiffs contend that this Court should deny Defendant’s motion because 

no affidavit or other “piece of evidence accompanies” the motion. After Defendant 

filed her motion for judgment on the pleadings, Plaintiffs’ counsel deposed 

Michael Wartella, the Director of Customer Service Administration, who approved 

the updated policy after it was drafted by staff. Wartella clearly stated that the 

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updated policy allows for a passport, passport card, or court order to change the 

gender designation on a Michigan driver’s license or PID:

BY MR. KNIGHT:

Q You’re still under oath, Mr. Wartella.

So we’ve talked about the 2016 policy and that you will accept a 

passport now –

A Yes.

Q -- to show a gender change. Right?

A Yes.

*******

A. And right now our policy that we have is passport, passport card or

birth certificate or court order.

(Ex. A, Deposition of Michael Wartella, at pp 99-100).

Also, the 2016 policy was distributed to the branch offices when it was 

issued and, more recently, is included in the Secretary of State’s Driver’s License 

Manual. (Ex. B, Affidavit of Grace Ueberroth, Ex. 1 and 2.) Under these 

circumstances, Plaintiffs’ counsel is hard-pressed to deny the existence of the 

updated 2016 policy. 

II. No legislative repeal is needed to establish that Plaintiffs’ claims are 

moot.

Plaintiffs next argue that a change in policy is insufficient as a matter of law 

to moot their claims, citing Akers v. McGinnis, 352 F.3d 1030 (6th Cir. 2003). In 

Akers, a union and individual employees challenged as unconstitutional a work rule 

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that prohibited Department of Corrections employees from any non-work-related 

contact with prisoners, parolees, and probations, their relatives and visitors. Both 

individual plaintiffs had been terminated for violating the no-contact rule. They 

also sought equitable relief, expungement of information from disciplinary records, 

and compensatory and punitive damages. During the lawsuit, the Department of 

Corrections changed its rules and ultimately allowed for individual exemptions for 

certain types of contacts. 

Although the Sixth Circuit concluded that plaintiffs’ claims were not mooted 

by a change in the work rules, the facts in Akers are distinguishable. While the 

Akers Court noted that there is “no guarantee that MDOC will not change back to 

its older, stricter Rule as soon as this action terminates”, plaintiffs’ claims for relief 

were still alive and had not been decided--particularly those relating to money 

damages. By contrast, the Plaintiffs in this case do not have on-going live claims,

and there is no longer any relief that can be awarded. Each plaintiff is now able to 

change the sex designation on their drivers’ licenses or PID by simply obtaining or 

renewing their passport or passport card. Thus, Akers is inapposite.

I. The history of the policy and timing of the policy change do not weigh 

against a finding of mootness.

Plaintiffs’ claim that there were political shenanigans at play when, after 

Defendant Johnson was elected, her office required an amended birth certificate to 

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in order to change the sex designation on a driver’s license or PID. However, this

theory is not supported by the record. Again, Director of Customer Service 

Administration Michael Wartella testified that:

 He was responsible for approving the policy

(Ex. 1, Wartella Dep. at p 24);

 He has never spoken with or has any personal knowledge of the

Campaign for Michigan Families (Ex. 1, Wartella Dep. at p 17);

 That other than the ACLU, no group or organization had ever 

contacted him about the department’s policy (Ex. 1, Wartella 

Dep. at p 17);

 He never talked to Secretary of State Johnson, her chief of staff,

or anyone else about her campaign statement on changing the 

gender on a driver’s license (Ex. 1, Wartella Dep. at p 91); 

 Defendant Johnson did not request this change (Ex. 1, Wartella 

Dep. at p 91); 

 He told Defendant Johnson that he was going to make a change 

to the amended birth certificate because they were trying to 

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

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. 1, Wartella Dep. at p 

24); 

 The reason for this change was to “have the same standard that 

was allowed for Michigan birth certificates under state law that 

somebody that completed surgery could get their birth 

certificate changed.” (Ex. 1, Wartella Dep. at pp 24-25). 

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In view of this testimony, Plaintiffs’ theory, that political pressure led the 

2011 policy change, lacks factual support. Political pressure had nothing to do 

with the change that occurred in 2011. Rather, as Wartella testified, the 2011 

change occurred in order to protect the privacy of customers from providing 

medical information at Secretary of State branch offices, and to simplify business 

procedures within branch offices. As political pressure played no role in the 2011 

or 2016 policy, the plaintiffs’ conjecture that political pressure somehow will cause 

the 2016 policy to “revert back to old policies” has no foundation. Furthermore, 

Wartella testified that the March 10, 2016 policy update has been distributed to 

staff electronically, and that it’s going to be included in the Driver’s License 

Manual. (Ex. A, Dep of Wartella, at p. 48). This has now occurred. (Ex. B,

Affidavit of Grace Ueberroth, 1 and 2). 

Finally, Plaintiffs argue against a finding of mootness because, in their view, 

state officials changed policies and procedures related to the driver’s license issue 

too many times. While this view is inaccurate, it is nonetheless irrelevant to the 

mootness issue. Defendant Johnson has implemented a policy that is not 

burdensome, and integrates a policy cited by Plaintiffs as a model, and provides the 

plaintiffs with the relief that they requested in this case. Furthermore, there is no 

indication of any intention or desire to return to the prior policy. Under these 

circumstances, Plaintiffs’ claims are moot.

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RELIEF REQUESTED

For the reasons set forth in this Reply, Defendant’s Motion for Judgment on 

the Pleadings should be granted, and Plaintiffs’ complaint dismissed with 

prejudice, together with any other relief the Court determines to be appropriate 

under the circumstances.

Respectfully submitted, 

Bill Schuette

Attorney General

/s/Erik A. Grill

Erik A. Grill (P64713)

Denise C. Barton (P41535)

Kevin Himebaugh (P53374)

Jeanmarie Miller (P44446)

Assistant Attorneys General

Attorneys for Defendant

P. O. Box 30736

Lansing, Michigan 48909

(517) 373-6434

grille@michigan.gov

P64713

Dated: April 22, 2016

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CERTIFICATE OF SERVICE

I hereby certify that on April 22, 2016, I electronically filed the above 

document(s) with the Clerk of the Court using the ECF System, which will provide 

electronic copies to counsel of record. 

/s/Erik A. Grill

Erik A. Grill (P64713)

Assistant Attorneys General

Attorneys for Defendant

P. O. Box 30736

Lansing, Michigan 48909

(517) 373-6434

grille@michigan.gov

P64713

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