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

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

/

DEFENDANTS RUTH JOHNSON’S MOTION FOR 

JUDGMENT ON THE PLEADINGS ON GROUNDS OF 

MOOTNESS

Case 2:15-cv-11834-NGE-EAS ECF No. 48, PageID.454 Filed 03/10/16 Page 1 of 13
Defendant Ruth Johnson, through her attorneys, Bill Schuette, 

Attorney General for the State of Michigan and Erik A. Grill,

Assistant Attorney General for the State of Michigan, and in support

of her Motion to Dismiss pursuant to Fed. R. Civ. P. 12(c) states as 

follows:

1. Plaintiffs allege that they are transgender individuals

seeking to change the sex designation on their state-issued

drivers’ licenses.

2. Defendant Ruth Johnson is the elected Secretary of State 

for the State of Michigan.

3. Plaintiffs seek declaratory and injunctive relief. 

4. For the reasons set forth in this brief, Plaintiffs’

Complaint should be dismissed with prejudice. 

5. Concurrence in this motion was sought on March 4, 2016,

but concurrence was denied.

Case 2:15-cv-11834-NGE-EAS ECF No. 48, PageID.455 Filed 03/10/16 Page 2 of 13
RELIEF REQUESTED

For these reasons and the reasons stated more fully in the 

accompanying brief, Defendant Ruth Johnson respectfully requests

that this Honorable Court dismiss the claims against her in their 

entirety, 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)

Kevin Himebaugh (P53374)

Jeanmarie Miller (P44446)

Denise C. Barton (P41535)

James E. Long (P53251) 

Assistant Attorneys General

Attorneys for Defendant

Civil Litigation, Employment & 

Elections Division 

P. O. Box 30736

Lansing, Michigan 48909

(517) 373-6434

grille@michigan.gov

Dated: March 10, 2016

Case 2:15-cv-11834-NGE-EAS ECF No. 48, PageID.456 Filed 03/10/16 Page 3 of 13
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

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

/

Case 2:15-cv-11834-NGE-EAS ECF No. 48, PageID.457 Filed 03/10/16 Page 4 of 13
1

CONCISE STATEMENT OF ISSUES PRESENTED

1. Should this Court dismiss the Complaint for declaratory and 

injunctive relief as moot where, as here, the Michigan 

Secretary of State has updated its policy and now allows 

Plaintiffs to change their sex designation on their Michigan 

driver’s license without having to obtain an amended birth 

certificate? 

Defendant’s Answer: “Yes” 

CONTROLLING OR MOST APPROPRIATE AUTHORITY

Authority:

Ammex, Inc. v. Cox, 351 F3d 697 (6th Cir. 2003) 

Case 2:15-cv-11834-NGE-EAS ECF No. 48, PageID.458 Filed 03/10/16 Page 5 of 13
2

STATEMENT OF FACTS

Plaintiffs are six transgender individuals who challenge a former 

Michigan Secretary of State policy that required them to submit an 

amended birth certificate in order to change their sex designation on 

their state-issued personal identification card (PID) or state-issued 

driver’s license (DL). They contend that the Secretary of State’s policy, 

to the extent that it did not allow for alternative ways to change the sex 

designation on their PID or DL, violated their Constitutional rights, 

including their right to privacy, freedom of speech, right to equal 

protection, right to interstate travel, and right to refuse unwanted 

medical treatment. 

Plaintiffs seek declaratory and injunctive relief so that they, as 

transgender Michigan residents, “can obtain Michigan ID documents 

that accurately reflect their gender identity.” (R. 1, Pg ID #6 Complaint, 

¶ 11.

On March 10, 2016, the Michigan Secretary of State updated its 

policy as it relates to changing the sex designation on a state-issued 

PID or DL. Effective March 10, 2016, the Secretary of State’s policy

provides that:

Case 2:15-cv-11834-NGE-EAS ECF No. 48, PageID.459 Filed 03/10/16 Page 6 of 13
3

[A]n applicant may request to change the sex designation on 

their driver license or PID. The individual must provide any 

one of the following documents that show a sex other than 

currently designated on the drivers license or PID: a 

certified birth certificate, a valid US Passport, valid US 

Passport Card, or a court order changing the sex of the 

individual.

With this updated policy in place, Plaintiffs are no longer required 

to obtain an amended birth certificate as their only means to change 

their sex designation on their PID or DL. Accordingly, for the reasons 

more fully set forth in this Brief, the case warrants dismissal. 

ARGUMENT

I. A case can be moot where interim relief or events have 

completely eradicated the effects of the alleged violation 

and where the alleged violation is not expected to reoccur. 

The Secretary of State has voluntarily updated its policy to

eliminate the gender reassignment requirement for 

individuals desiring to change their sex designation on 

their driver’s license. Is this case moot?

Under Article III of the Constitution, a federal court’s jurisdiction 

is limited to actual cases and controversies. Ammex, Inc. v. Cox, 351 

F.3d 697, 704 (6th Cir. 2003)(internal quotations omitted)(quoting

McPherson v. Mich High Sch Athletic Ass’n., Inc, 119 F3d 453, 458 (6th 

Cir. 1997) (en banc)). While a defendant’s voluntary cessation of a 

challenged practice does not deprive a federal court of its power to 

Case 2:15-cv-11834-NGE-EAS ECF No. 48, PageID.460 Filed 03/10/16 Page 7 of 13
4

determine whether that practice was constitutional, it can moot a case 

“if subsequent events make it absolutely clear that the allegedly 

wrongful behavior could not reasonably be expected to recur.” Friends 

of the Earth, Inc. v. Laidlaw Envtl Servs (TOC) Inc., 528 U.S. 167, 189 

(2000). A case can be moot where interim relief or events have 

completely and irrevocably eradicated the effects of the alleged 

violation. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). An 

appeal is moot in the constitutional sense where the events that have 

transpired during the pendency of the appeal make it “‘impossible for 

the courts to grant any effectual relief whatever . . . .’’’ Church of 

Scientology of California v. United States, 506 U.S. 9, 12 (1992). The 

Sixth Circuit has noted that “‘cessation of the allegedly illegal conduct 

by government officials has been treated with more solicitude by the 

courts than similar action by private parties.’” Ammex, 351 F.3d at 705 

(quoting Mosely v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990)). The 

burden of demonstrating mootness rests on the party claiming 

mootness. Friends of the Earth, 528 U.S. at 189.

Under this legal standard, this Court should dismiss Plaintiffs’

case on grounds of mootness. There is no need for injunctive or 

Case 2:15-cv-11834-NGE-EAS ECF No. 48, PageID.461 Filed 03/10/16 Page 8 of 13
5

declaratory relief here, where such relief would not serve a useful 

purpose in clarifying the legal relations at issue, or where there is an 

alternative remedy that is better. Grand Trunk Western RR Co v.

Consolidated Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984) (citing 6A 

Moore’s Federal practice para 57.08 (1983)). 

Defendant Ruth Johnson has remedied any alleged constitutional 

violation by voluntarily abandoning the requirement to provide a 

certified birth certificate as proof to change to an individual’s sex 

designation on his or her DL or PID. Under this new policy, Defendant

Ruth Johnson will accept a passport or a passport card issued by the 

federal government, or a court order issued by a court of competent 

jurisdiction, in order to change an applicant’s sex designation. Simply 

stated, surgery is no longer required under this policy. 

Plaintiffs concede that the United States Department of State 

imposes reasonable and not burdensome requirements in order for an 

individual to change his or her sex designation on a passport or 

passport card. (R. 1, Complaint, Pg ID # 16, 17 ¶¶45(a) and (c)). The 

federal government requires a medical provider’s certification in order 

to accomplish this change—

Case 2:15-cv-11834-NGE-EAS ECF No. 48, PageID.462 Filed 03/10/16 Page 9 of 13
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http://travel.state.gov/content/passports/en/passports/information/gend

er.html. A passport card for new applicants can be obtained at a 

relatively low cost, estimated to be less than $60.00—

http://travel.state.gov/content/passports/en/passports/information/fees.

html. So the cost is not burdensome. This updated policy also 

understandably includes a provision recognizing a change in an 

individual’s sex designation accomplished by way of a court order. It is 

well-settled that courts speak through their orders, and the Secretary’s 

updated policy makes this point crystal clear. 

Defendant Ruth Johnson has demonstrated that there is no 

reasonable likelihood that she will return to the previous policy. The 

policy change has been implemented in the ordinary course of business. 

The Sixth Circuit Court has recognized that self-correction by 

government officials “provides a secure foundation for dismissal based 

on mootness so long as it appears genuine.” Mosley v. Hairston, 920 

F.2d 409, 415 (6th Cir. 1990) (citing 13A Charles Alan Wright, Arthur 

R. Miller & Edward H. Cooper, Federal Practice and Procedure § 

3533,7 (2d ed 1984)). 

Case 2:15-cv-11834-NGE-EAS ECF No. 48, PageID.463 Filed 03/10/16 Page 10 of 13
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In Brandywine v. Richmond, the Sixth Circuit Court held that the 

defendant City of Richmond’s passage of an amendment to a 

development ordinance provided sufficient assurance that the earlier 

amendment would not be re-enacted, especially since no threat was 

made to re-enact the offending legislation. Brandywine v. Richmond, 

359 F.3d 830, 836 (6th Cir. 2004) (citing Kentucky Right to Life, Inc. v.

Terry, 108 F.3d 637, 645 (6th Cir. 1997)). Defendant Ruth Johnson has 

announced, through her staff, that the Department of State has 

changed its policy, further demonstrating that the challenged action 

will not occur and that additional enforcement action is unnecessary. 

See Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 69-70 (1983)

(holding that a third party non-defendant university’s letter to the 

courts and members of an all-male organization stating that the society 

could return as a university organization only if it complied with 

nondiscrimination policies, was sufficient to demonstrate that 

additional enforcement actions were not needed, and mooted the case). 

In addition, because this updated policy gives Plaintiffs the relief 

they sought in their Complaint, there is no further effective relief to be 

Case 2:15-cv-11834-NGE-EAS ECF No. 48, PageID.464 Filed 03/10/16 Page 11 of 13
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granted by this Court. The allegedly wrongful behavior could not, 

therefore, reasonably be expected to recur. 

Accordingly, this Court should grant Defendant’s motion for 

judgment on the pleadings on the basis of mootness.

CONCLUSION AND RELIEF REQUESTED

WHEREFORE, Defendant Ruth Johnson respectfully requests 

that this Court dismiss the Plaintiffs’ Complaint with prejudice.

Respectfully submitted,

BILL SCHUETTE

Attorney General

/s/Erik A. Grill

Erik A. Grill (P64713)

Kevin Himebaugh (P53374)

Jeanmarie Miller (P44446)

Denise C. Barton (P41535)

James E. Long (P53251) 

Assistant Attorneys General

Attorneys for Defendant

Civil Litigation, Employment & 

Elections Division 

P. O. Box 30736

Lansing, Michigan 48909

(517) 373-6434

grille@michigan.gov

Dated: March 10, 2016

Case 2:15-cv-11834-NGE-EAS ECF No. 48, PageID.465 Filed 03/10/16 Page 12 of 13
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CERTIFICATE OF SERVICE

I hereby certify that on March 10, 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 

Attorney for Defendant 

P.O. Box 30736

Lansing, Michigan 48909

(517) 373-6434

grille@michigan.gov

P64713

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