Hollister Appeal | Emergency Motion Re Amicus Brief (Berg & Joyce), filed Nov. 24, 2009

U.S. District Courtfor the District of Columbia Case No. 1:08-cv-02254 JR Court of Appeals Case No. 09-5080

Consolidating No. 09-5161

UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

_____________

Ο

_____________

GREGORY S. HOLLISTER,

Plaintiff – Appellant,v.

BARRY SOETORO, et al,

Respondents – Appellees. _____________

Ο

_____________

EMERGENCY MOTION OF LAWRENCE J. JOYCE, ESQUIRE andPHILIP J. BERG, ESQUIRE TO FILE A BRIEF

AMICUS CURIAE

INSUPPORT OF APPELLANTS HOLLISTER AND HEMENWAY,SUPPORTING REVERSAL

_____________________

Lawrence J. Joyce, Esquire1517 N. Wilmot Road,Suite 215Tucson, AZ 85712D.C. Circuit Bar No. 52501(520) 584-0236

As In Pro Se Amicus for himself and as Attorney for Amicus,

Philip J. Berg, Esquire

Case: 09-5080 Document: 1217273 Filed: 11/24/2009 Page: 1

1

I. Rule 29 Considerations

In requesting Leave to File a Brief

amicus curiae

in this case, this Court’s

amici

are mindful of Circuit Rule 29(b) of this Court, which normally requires Notice of the Intent to File a Brief

amicus curiae

within sixty [60] days of thedocketing of the case in this Court. However, we have two principal bases for seeking a waiver of that Rule. One basis is that there is a new case,

Barnett v.Obama

,

1

which was decided by the United States District Court for the CentralDistrict of California on October 29, 2009, and which could substantially affect theoutcome of this appeal; thus, we could not have known of the need to address theholding of that case until after the normal sixty [60] day time limit had expired. Inaddition, we have learned that a Notice of Appeal has been filed in that case,

2

andwe think it would be best for ourselves, for the parties, and for the Courts for bothCircuits to be aware of the issue instead of just one Circuit. Also, as explained below in the

Interest of Philip J. Berg

, the Third Circuit will have that issue beforeit.Another consideration is that there has been a change in the representation of Appellant Gregory S. Hollister in this case as of November 10

th

of this year. Wecould not have anticipated this change prior to the expiration of the normal sixty

1

Barnett v. Obama

, 2009 U.S. Dist. LEXIS 101206 (C.D. Cal. Oct. 29, 2009).

2

Wiley S. Drake, et al v. Barack H. Obama, et al

, U.S. Court of Appeals for the Ninth Circuit,Case Number 09-56827

Case: 09-5080 Document: 1217273 Filed: 11/24/2009 Page: 2

2

[60] day deadline. We believe that, in a

prima facie

sense, this change of counselwill not be prejudicial to Hollister on the grounds that Hemenway is a member of the bar of this Court, plus the fact that Hollister himself made the change of counsel. Nonetheless, for the reasons stated below, we believe this change inrepresentation could result in a less-than-sufficient presentation of all issues for this Court’s consideration unless this Motion to File the

amicus

Brief is granted.John D. Hemenway, Esquire has denied consent to file this Brief, both for himself and for Hollister. For a brief time it was not known if Hollister wouldchange his mind and take Berg and Joyce back as counsel. Once it was ascertainedthat this would not happen, we notified counsel for Soetoro and Biden by email on November

November 19, 2009

of our request for consent to file this Brief. As of thedate of the filing of this Motion and Brief, we have not received consent from themeither.

II. Background

A. Interest of Lawrence J. Joyce, Esquire

My name is Lawrence J. Joyce. I am an attorney in Tucson, Arizona. I amthe author of this case.Last year I heard about legal efforts to bring to establish whether Senator John McCain and Appellee Barry Soetoro are Constitutionally qualified to bePresident. In the spring of 2008 a friend of mine was likewise concerned and

Case: 09-5080 Document: 1217273 Filed: 11/24/2009 Page: 3