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U.S. District Court for the District of Columbia Court of Appeals Case No.

Case No. 09-5080

1:08-cv-02254 JR

Consolidating No.

09-5161

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
_____________ Ο _____________

GREGORY S. HOLLISTER,
Plaintiff – Appellant, v.

BARRY SOETORO, et al,
Respondents – Appellees. _____________ Ο _____________

CORRECTED EMERGENCY MOTION OF LAWRENCE J. JOYCE, ESQUIRE and PHILIP J. BERG, ESQUIRE TO FILE A BRIEF AMICUS CURIAE IN SUPPORT OF APPELLANTS HOLLISTER AND HEMENWAY, SUPPORTING REVERSAL
_____________________

Lawrence J. Joyce, Esquire 1517 N. Wilmot Road, Suite 215 Tucson, AZ 85712 D.C. Circuit Bar No. 52501 (520) 584-0236 As In Pro Se Amicus for himself and as Attorney for Amicus,
Philip J. Berg, Esquire

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TABLE OF CONTENTS Page(s) TABLE OF CONTENTS………………………………………………..………….i TABLE OF AUTHORITIES………………………………………………..…..ii-iii ARGUMENT…………………………………………………….………...…... 1-20 I. II. Rule 29 Considerations……………………….……...……………..1-2 Background…………………………………………………….….2-17 A. B. III. Interest of Lawrence J. Joyce, Esquire…………….…….....2-14 Interest of Philip J. Berg, Esquire…………………...…….14-17

Contents of The Brief……………………………………………17-20 A. B. Barnett v. Obama………………………………………….17-20 Additional Materials in the Brief……………………………..20

CONCLUSION………………………………………………………….………..21 CERTIFICATION OF COMPLIANCE WITH RULE 32(a)…………………..…22 CERTIFICATE OF SERVICE……………………….………………………..23-24 Attachment Number One Erratum and Appellant Hollister’s Reply Brief.......…Attachments 1-1 through 1-42 Attachment Number Two April 3, 2009 Letter from Robert Bauer to John D. Hemenway……Attachment 2-1

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TABLE OF AUTHORITIES Page(s) Cases United States Supreme Court Andrus v. Charlestone Stone Products, Inc., 436 U.S. 604 (1978)……..……..….17 Bender v. Williamsport Area School Dist., 475 U.S. 534 (1986)…………....……17 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)..………………………..…...18 Martin v. Wilks, 490 U.S. 760 (1989)…………………………………...…..…..…4 N.O.W. v. Scheidler, 510 U.S. 249 (1994)………………………………....………4 Roe v. Wade, 410 U.S. 113 (1973)………………………………………………..20 Sosna v. Iowa, 419 U.S. 393 (1975)………………………………………………18

Court of Appeals: All Other Circuits Berg v. Obama, 2009 U.S. App. LEXIS 24804 (3d Cir. Pa. Nov. 12, 2009)…..…15 Wiley S. Drake, et al v. Barack H. Obama, et al U.S. Court of Appeals for the Ninth Circuit, Case No. 09=56827…………………1

United States District Court Barnett v. Obama, 2009 U.S. Dist. LEXIS 10126 (C.D. Cal. Oct. 29, 2009)………….1, 16, 17, 18, 19 Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008)…………………….……...15

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TABLE OF AUTHORITIES - Continued Page(s) Cases

United States District Court - Continued

Berg v. Obama, 2009 U.S. App. LEXIS 86189 (D.D.C. Sept. 21, 2009)……...…..15 Liberi, et al v. Taitz, et al, U.S. District Court for the Eastern District of PA, Case Number 09-01898-ECR………………………………………………..…….16

FEDERAL RULES OF APPELLATE PROCEDURE District of Columbia Circuit Rule 29(b)……………………………………..……..1

UNITED STATES CONSTITUTION Article III…………………………………………………………………….……18 First Amendment………………………………………………………………….20

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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 the docketing 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 Central District of California on October 29, 2009, and which could substantially affect the outcome of this appeal; thus, we could not have known of the need to address the holding of that case until after the normal sixty [60] day time limit had expired. In addition, we have learned that a Notice of Appeal has been filed in that case,2 and we think it would be best for ourselves, for the parties, and for the Courts for both Circuits 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 before it. Another consideration is that there has been a change in the representation of Appellant Gregory S. Hollister in this case as of November 10th of this year. We could not have anticipated this change prior to the expiration of the normal sixty

Barnett v. Obama, 2009 U.S. Dist. LEXIS 101206 (C.D. Cal. Oct. 29, 2009). Wiley S. Drake, et al v. Barack H. Obama, et al, U.S. Court of Appeals for the Ninth Circuit, Case Number 09-56827
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[60] day deadline. We believe that, in a prima facie sense, this change of counsel will 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. However, for the reasons stated below, we believe this change in

representation could nonetheless result in a truly 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 would change his mind and have Berg and Joyce as counsel once again. Once it was ascertained that this would not happen, we notified counsel for Soetoro and Biden by email on November 19, 2009 of our request for consent to file this Brief. As of the date of the filing of this Motion and Brief, we have not received consent from Soetoro and Biden, either. II. A. Background

Interest of Lawrence J. Joyce, Esquire

My name is Lawrence J. Joyce. I am an attorney in Tucson, Arizona. I am the 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 be

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President. In the spring of 2008 a friend of mine was likewise concerned and asked me if I could help him resolve this in Court. After consideration of the issue, we both decided not to pursue the matter. I did, however, file a Brief amicus curiae on his behalf in November of 2008 in the Supreme Court of the United States in support of a Petition for a Writ of Certiorari which was then pending on behalf of Philip J. Berg, Esquire, who is a co-amicus on this Brief. Immediately afterwards I began to wonder who the Courts would be most likely to listen to on point. I concluded that the Joint Chiefs of Staff might be the most likely individuals to be heard, given the nature of their duties and relationship to the Commander-In-Chief. It then occurred to me that any member of the Armed Forces would likewise be affected by Soetoro’s potential disqualification to at least some degree, even an inactive member, so long as that person would be subject to recall to active duty. As I considered what the main problem a member of the Armed Forces might have, it occurred to me that there would be a question as to whether the member would be legally obligated to look to Soetoro as the rightful CommanderIn-Chief, or to Appellee Joseph Biden. This, I knew, sounded in Interpleader. Also, Interpleader places the burden of proof where it most naturally where it belongs under the wording of the Constitution itself: on the shoulders of someone seeking to be President, rather than on the Plaintiff.

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I contacted Philip J. Berg, Esquire’s assistant Lisa Liberi and asked her if any members of the Armed Forces had come forward and asked Mr. Berg for help. She said that some had. I began my research and concluded that a valid case can be made for the proposition that a member of the Armed Forces would have a claim in Interpleader against Soetoro and Biden. I spoke with Mr. Berg and told him my thoughts. He agreed that this would be a good claim for a member of the Armed Forces. For various reasons, we elected to file the Interpleader claim on behalf of Appellant Gregory S. Hollister as the sole Plaintiff. I did the vast majority of the research on Interpleader, including the role of Martin v. Wilks3 and N.O.W. v. Scheidler4 on statutory construction. I drafted the portions of the original Complaint and First Amended Complaint dealing specifically with Interpleader. I drafted the Opposition to the Motion to Dismiss and most of the other filings in the District Court as well. It was my idea to refer to Soetoro as Soetoro rather than as Obama, on the grounds that many individuals think that this whole issue will be resolved solely by reference to his place of birth, and with no consideration as to what may have happened to any U.S. citizenship he might once have had while living in Indonesia. I likewise did virtually all of the conceptualizing of the other details and arguments of the case, with the exception of the addition of the Bivens claim, which came from Philip J. Berg, Esquire’s
3 4

Martin v. Wilks, 490 U.S. 760 (1989). N.O.W. v. Scheidler, 510 U.S. 249 (1994). 4

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office. Also, with my permission, in the Brief filed in this Court on August 5, 2009, John D. Hemenway, Esquire used a substantial amount of material which I had prepared in advance for him to address the sanctions portion of the appeal. We needed local counsel in the District Court. Several attorneys had contacted Mr. Berg asking if they could help. One of them was John D.

Hemenway, Esquire, an Appellant in this case. Mr. Hemenway agreed to be local counsel, and he signed everything which was filed in this case in the District Court. After clearing the obstacles of hostility in the Office of the Clerk of the District Court, we were finally able to get the claim filed and served. We found the reaction of the District Court to be remarkable. immediately filed a Notice of Appeal. Shortly thereafter, Mr. Berg and I initiated the process to be admitted to the Bar of this Court. Mr. Berg sent our materials together to Mr. Hemenway, who had agreed to be the moving party for admission for each of us. We had heard that sometimes it may take a while for the Court of Appeals to announce the briefing schedule, and so we waited to hear from this Court. What transpired next, however, came not from this Court. Rather, Mr. Hemenway’s behavior began to change. John D. Hemenway, Esquire, we first wish to note, has been a model of what an upstanding citizen and a member of the Bar should be. A member of the Upon dismissal, we

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Greatest Generation, and a child of the Great Depression, he served as a Second Lieutenant in World War II. He is a Rhodes Scholar. At one point, as a private citizen, he single-handedly captured a fleeing felon and held him until the police arrived. He has generously supported this case in good faith. We wish there were more like him. We suddenly learned by email, however, that Mr. Hemenway, without first communicating with Mr. Berg or I, had contacted Mr. Hollister with the idea of starting a whole new type of claim for Mr. Hollister in the District Court. Without going into details, it is a form of action in which the plaintiff would assume the usual burden of proof (as opposed to Interpleader), and which would entail a very great deal of money to litigate. In addition, it would require so much time to prepare that Discovery itself might not be done until after the current Presidential term of office ends. Mr. Hemenway had also convinced Colonel Hollister that Hollister had to start getting materials together as if they were preparing for proceedings at the trial level in this case itself instead of in the Court of Appeals. Prior to that time we had virtually never heard from Mr. Hemenway at all, except for when he signed off on things which were filed in Court. In fact, he had apologized for not taking a more active role, though no apology was needed. In light of the fact that Mr. Hemenway was the sponsor of Mr. Berg and I to proceed Pro Hac Vice in the District Court, and with there being little prospect that

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Mr. Berg or I could soon gain full admission therein, I realized that I had to handle this as gently as possible without upsetting Mr. Hemenway, and simply hope that this would be an isolated incident. After speaking with Colonel Hollister, I

explained to Mr. Hemenway that Mr. Berg and I were instructed to be the decision makers in the case. Then, in July of this year, I received a Notice from the State Bar of Arizona that a Bar Charge had been filed against me by a private citizen who had heard about the District Court’s ruling in this case, and who urged the State Bar to discipline me. I submitted lengthy statements explaining the facts and law of the matter to the State Bar. The complainant submitted more materials, and I

responded again. Then, in September of this year, the person charged with the initial screening of such complaints informed me that he saw no merit to the Bar Charge, but he also stated that I must report back to the State Bar when this case is finished in this Court in order to see if there is anything further for the State Bar to consider before final disposition of the Bar Charge against me. In the mean time, on July 31, 2009, Mr. Berg and I learned from Mr. Hemenway for the first time that this Court had announced the briefing schedule for this case in June, and that the Principal Brief would be due on August 5th. As Colonel Hollister told this Court more fully in the Motion for Extension of Time, Attorney Hemenway was not signed up to receive email notices from this Court,

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and he said he never received notice by any other means. As it turns out, in fact, he first learned of the briefing schedule at all when a friend of his mentioned that he had noticed it himself in his readings online. Also, as it turns out, Mr.

Hemenway said that he had never received the applications of Mr. Berg or I to become members of the Bar of this Court. I reinitiated the process of applying for admission to the Bar of this Court, and John D. Hemenway, Esquire acknowledged that he received my materials around August 22nd. When I called the Office of the Clerk of this Court on September 3rd, however, I found that the materials still had not been submitted. I immediately called Mr. Hemenway and asked him about this. He said that he hadn’t gotten around to it because my gaining admission to the Bar of this Court supposedly wouldn’t be necessary. I urged him as strongly as I could, without being overbearing, to submit my application, and he finally said that he would break his neck (to use his own words) and submit the materials that day or the next. Finally, I was admitted to practice on September 15th of this year, and I filed the Original Reply Brief of Hollister, and served it on counsel for all parties. At about that time Colonel Hollister said that he wished to dismiss Mr. Hemenway as one of his attorneys. He also spoke of dismissing Mr. Berg, though he agreed with me that he should at least keep open the prospect of bringing Mr.

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Berg back in at a later date. Colonel Hollister signed and returned a Retainer Agreement acknowledging that I was, at that time, his exclusive attorney. On September 23rd of this year, with the Reply Brief of Colonel Hollister and Motion to file out of time before this Court under my signature, John D. Hemenway, Esquire sent me an email in which he twice acknowledged that, at that time, I was the sole and exclusive attorney of Colonel Hollister. Then, a few hours later, he filed his Motion for Judicial Notice in this Court on behalf not only of himself, but also on behalf of Colonel Hollister. He did so without first

mentioning to Mr. Berg or I that he was even considering filing such a thing at all for anyone. Mr. Berg’s assistant Lisa Liberi was able to contact Mr. Hemenway, and Mr. Hemenway agreed to file a Motion with this Court immediately seeking to withdraw his Motion for Judicial Notice as it applied to Colonel Hollister. Mr. Hemenway never filed that Motion, and he did not respond to emails on point. Accordingly, I filed the Motion to withdraw those materials as they pertain to Colonel Hollister’s end of this appeal, which Motion is still before this Court. The materials in question filed by John D. Hemenway, Esquire come from cases filed by another attorney, Orly Taitz, Esquire, who is also questioning the qualifications of Soetoro to be President. Likewise, the new form of action

previously alluded to, which Mr. Hemenway had urged Colonel Hollister to consider, was one which Orly Taitz, Esquire had considered. The problems and

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dangers of being associated with that attorney [Taitz] are fully developed in the following Interest of Philip J. Berg in this Motion, and I refer this Court to that statement of Mr. Berg. I was aware of much of the background development of those problems at the time that John D. Hemenway, Esquire filed the said materials. Aside from the fact that I was shocked by the fact that any materials were filed by John D. Hemenway, Esquire at all for Colonel Hollister, I was aghast over the fact that those materials came from a case involving that other attorney. I called Mr. Hemenway and asked him about what he had done. I asked him if he had been in touch with that other attorney. He said he didn’t think so, other than a couple of emails quite a while back. I asked him where he had gotten the materials from. He didn’t seem to know, although he thought he might have gotten them from his own research on the internet. Significantly, the format of at least one of the documents he filed in this Court does not match the format of what is available from Court records online. I asked Mr. Hemenway if someone had sent those materials to him, and again he wasn’t sure. I reminded Mr. Hemenway that just a few hours before he filed those things, he had sent me an email in which he twice acknowledged that I was sole counsel for Colonel Hollister at that time. He responded, by way of attempted justification that I had to keep in mind that he had sponsored my admission to the Bar of this

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Court. In the next sentence he then said that at the time he filed those things, I supposedly was not a member of the Bar of this Court. I once again reminded him that he had acknowledged that I was Colonel Hollister’s sole attorney just before he filed those things. He said he didn’t remember that. Fortunately (or

unfortunately), on the basis of his demeanor, as best as I could discern it over the phone, I believe him. Before the call ended, Mr. Hemenway agreed that he would submit to me anything he thought should be filed in the case. I told Ms. Liberi that she would have to start looking through the list of other attorneys who had offered to help in order to find another one who was a member of the Bar of the District Court. Mr. Berg agreed to see if he knew of someone who could sponsor him for full admission, at which point Mr. Berg could sponsor me. Right after this Court’s Order in this case came down on October 20th announcing a new briefing schedule and a requirement that there be one joint Brief of 14,000 words for the Appellants, Colonel Hollister decided that he wanted to bring Mr. Hemenway back into the case, with myself as lead counsel, and with John D. Hemenway, Esquire as co-counsel. I advised him against bringing Mr. Hemenway back in at all, but I drafted a new Retainer Agreement expressing Colonel Hollister’s wishes and sent it to him by email. I explained to Mr.

Hemenway that Colonel Hollister wanted this arrangement. I said that I, of course,

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would not file anything on behalf of Mr. Hemenway, and that Mr. Hemenway was not to file anything on behalf of Colonel Hollister without sending it to me. Mr. Hemenway reluctantly acknowledged this. He also agreed that if either of us were to use less than 7,000 words of the 14,000 words of the joint Brief that we would let the other party use the remainder of the words, and the call ended rather amicably. On October 29th, however, the Central District of California decided a case which may substantially impact this case; this fact is discussed below in the section entitled Contents Of The Brief. On the basis of my research, I concluded at first that it would take 4,000 words to address this new issue alone from scratch, and that figure ultimately proved to be 5,000 words. I told Mr. Hemenway and Colonel Hollister about this and said that I would file a Motion for Additional Words, for separate Briefs, or for Deconsolidation of the Appeals. Mr. Hemenway opposed this move. I finally concluded that Philip J. Berg, Esquire could seek to file an amicus Brief in pro se to get the arguments in without a total disruption of the appeal. Then, on November 9th, Mr. Hemenway filed a Reply to the Response of Soetoro and Biden to Mr. Hemenway’s Motion for Judicial Notice. John D. Hemenway, Esquire’s Reply was denominated as Plaintiffs/Appellants’ Reply, instead of just as his own Reply. I knew that as Colonel Hollister’s lead counsel, I

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could not let that stand. I would be forced to move to Withdraw that Reply as it pertained to Colonel Hollister’s Appeal, and that to explain such Motion, I would have to spell out in painstaking detail the indications of Mr. Hemenway’s forgetfulness and the steps that had been taken to ensure that such things would not happen again. Given the fact that in so doing, I would be attacking my client’s own co-counsel, this would place me in a legally and professionally untenable position. I sent Colonel Hollister an email on the night of November 9th telling him that, realistically, he had three options: One was to require Mr. Hemenway to send in an immediate statement of clarification telling this Court that it was only through inadvertence or mistake that it had been filed on behalf of Colonel Hollister instead of on behalf of Mr. Hemenway alone. Another option was for Colonel Hollister to stay with myself as his sole attorney so that I could tell the Court the full circumstances surrounding why I was going to move to Withdraw John D. Hemenway’s Reply to Soetoro’s and Biden’s Response from Hollister’s end of the Appeal. The third was to allow me to withdraw from representing Colonel Hollister. The following afternoon (November 10th), Colonel Hollister accepted my offer to withdraw, and he and I currently have no attorney-client relationship at all, nor do I believe that we shall have one in the future. (This likewise pertains to John D. Hemenway, Esquire.)

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Nonetheless, I myself have an interest to protect in this case. With my personal and professional reputation and my potential discipline resting on the competence of Colonel Hollister’s counsel to argue this case, I cannot be confident that John D. Hemenway, Esquire will be able to represent Colonel Hollister sufficiently, or even himself. Accordingly, I respectfully ask this Honorable Court for Leave to File a Brief amicus curiae in this case on behalf of myself and on behalf of Philip J. Berg, Esquire, or, in the alternative, for this Court to accept Philip J. Berg, Esquire as an amicus (with myself as counsel for him), even if this Court does not accept myself as an amicus. In so saying, I wish to emphasize that even if I myself had remained as counsel for Colonel Hollister, Philip J. Berg, Esquire would have sought Leave to File this Brief in pro se for himself, and I am instructed by Mr. Berg to say that if, for any reason, this Court does not allow me to file this Brief for either of us, that Mr. Berg is in fact now asking Leave of this Honorable Court to file this Brief for himself in pro se. B. Interest Of Philip J. Berg

My name is Philip J. Berg. I am a practicing attorney with law offices in Lafayette Hill, Pennsylvania, just outside of Philadelphia. I am a former Deputy Attorney General of the Commonwealth of Pennsylvania.

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On August 21, 2008, I filed suit on behalf of myself in the United States District Court for the Eastern District of Pennsylvania against Barack Obama (a/k/a/ Barry Soetoro), alleging that Obama is not Constitutionally qualified to be President of the United States on the grounds that he is not a natural-born citizen of the United States.5 The Third Circuit ruled on November 12, 2009,6 and I

anticipate filing a Petition for a Re-Hearing, in which I shall make arguments stating, inter alia, that Barnett (the new case from the Central District of California) should not govern the outcome. If I still do not prevail in the Third Circuit, I shall file a Petition for a Writ of Certiorari. I likewise have another case pending in the Court of Appeals for the District of Columbia based on the False Claims Act (i.e., a qui tam case), alleging that Barry Soetoro has submitted claims to the federal government which are false on the basis of his lack of any U.S. citizenship at all;7 that case is likewise filed on behalf of myself. In addition, I directed the legal effort of Appellant Gregory S. Hollister in the case at bar during the proceedings of this case in the District Court, subject to a pending motion in that Court for admission Pro Hac Vice. I have no attorney-client relationship with Colonel Hollister or John D. Hemenway, Esquire, and I have no prospects or intention of entering into one with either of them.
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Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008) Berg v. Obama, 2009 U.S. App. LEXIS 24805 (3d Cir. Pa. Nov. 12, 2009) 7 Berg v. Obama, 2009 U.S. Dist. LEXIS 86189 (D.D.C. Sept. 21, 2009)

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I wish to submit this amicus Brief because how this Court decides this case could substantially affect the cases in which I am a party, as well as my personal and professional reputation with respect to my previous efforts in the case at bar. In addition, I am a named Plaintiff in a case against another attorney, Orly Taitz, Esquire, who has brought several cases which also question the Constitutional qualifications of Soetoro to be President, and the impact of the outcome of this case on my professional reputation could affect my position in that case as well. There is much to say about Orly Taitz, Esquire, but since the matter is under litigation at the moment,8 it is not advisable to say more here than is absolutely necessary. Suffice to say, I note, that just recently, the U.S. District Court for the Central District of Georgia held her in contempt and found it necessary to impose a sanction of $20,000. And in the aforementioned Barnett case, the U.S. District Court for the Central District of California took note of the fact that it had received a statement from someone who told the Court that Orly Taitz, Esquire had tried to suborn perjury through the testimony she wanted him to give in that case.9 Since public perception now links anyone who is associated with any lawsuit which questions Soetoro’s Constitutional qualifications to be President with Orly Taitz,

Liberi, et al v. Taitz, et al, U.S. District Court for the Eastern District of PA, Case Number 09-01898-ECR 9 Barnett v. Obama, 2009 U.S. Dist. LEXIS 101206 at *56 (C.D. Cal. Oct. 29, 2009) 16

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Esquire and since I have my own claims to adjudicate on that point, I respectfully ask this Honorable Court for Leave to be this Court’s amicus with this Brief. Respectfully submitted,
s/ Philip J. Berg _____________________ Philip J. Berg, Esquire

Dated: November 27, 2009

III. Contents Of The Brief A. Barnett v. Obama

The holding of Barnett v. Obama10 is based on the idea that, at least in the circumstances of that case (and, by implication, possibly other cases), the Impeachment Clause of the Constitution strips the Article III Courts of the authority they would otherwise have to remove even a de facto President from office. Since this implicates the subject matter jurisdiction of the Article III

Courts, this issue can be raised at any time at any stage of the litigation,11 and could form the basis of this Court’s judgment and opinion if the Court thinks of this issue even after oral argument. Accordingly, for the sake of avoiding having this issue arise at a time when neither this Court nor the parties would have a

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Barnett v. Obama, 2009 U.S. Dist. LEXIS 101206 at *40-*47 (C.D. Cal. Oct. 29, 2009). See, Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986); see also, Andrus v. Charlestone Stone Products Co., Inc., 436 U.S. 604, 607, n. 6 (1978). 17

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sufficient opportunity to address this point properly, we wish to bring this issue to the attention of this Court now. Specifically, we wish to make two [2] points: 1.) We wish to argue that a de facto President can be judicially removed

from office, at least for those cases in which suit was filed before the de facto President took office. Significantly, this amicus Brief refers this Court to expressly stated language in Marbury v. Madison which would allow at least some civil claims to test the qualifications of public officers even after being sworn in.12 2.) We also wish to point out that the holding in Barnett must impact the

concept of mootness, which is likewise a matter of the subject matter jurisdiction of the Article III Courts,13 even though the Court in Barnett did not specifically face an issue of mootness, and did not expressly address that issue. This has implications for the case at Bar because if this Court adopts the reasoning of Barnett, the issue of mootness could arise in this case---academically, at least---due to the inauguration of Soetoro and Biden. In the amicus Brief, we refer this Court to expressly stated language from the Supreme Court emphasizing the necessity for a remand for consideration of any doubts about mootness. Even if the case at Bar were to be found moot with respect to the current term of office of Soetoro and Biden, this would leave open the question of whether Colonel Hollister’s present case (or anyone else’s new claim) can still be
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Marbury v. Madison, 5 U.S. (1 Cranch) 137, 167 (1803). Sosna v. Iowa, 419 U.S. 393, 398-399 (1975). 18

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adjudicated at least with respect to the next presidential term of office, which begins on January 20, 2013. We argue in the Brief that, in light of the practical ramifications of Barnett, this case should not be dismissed because, on the face of things, it would be applicable against Soetoro and Biden at least with respect to the election of 2012. As to the election of 2012, we first wish to note that Soetoro’s principal Presidential campaign remains active with the Federal Election Commission, with nearly $9 million in cash on hand.14 And in light of how long it takes to adjudicate a claim that someone is not Constitutionally qualified to be President, as is illustrated by the case at Bar itself, if a party cannot adjudicate a claim now, then there may not be enough time to adjudicate the claim until after Soetoro and Biden are sworn in all over again. This fact, when combined with the possible

application of Barnett against Colonel Hollister (or any other plaintiff), could make a mockery of the very concept of judicial review for this type of case. In response to that, we wish to bring to this Court’s attention certain precedents of the Supreme Court in which the Court allowed cases to proceed even though they would

14

See, http://images.nictusa.com/cgi-bin/fecimg/?C00431445; see also, http://images.nictusa.com/pdf/230/29992941230/29992941230.pdf#navpanes=0 19

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otherwise be deemed moot, since they would present factual circumstances which would be “… capable of repetition, yet evading review.”15 B. Additional Materials In The Brief

The additional materials in the Brief deal with a further development of the requirement of affording a party a hearing, the uncertainty in the case law of the military jurisdiction which Colonel Hollister faces if he is ever recalled to active duty, the nature of property, and the law’s recognition of Colonel Hollister’s property interest in his office, First Amendment considerations, and the need of this Court, for the sake of justice, to reach the merits of whether a claim upon which relief can be granted was in fact well-pleaded, if at all possible. These arguments all supplement the arguments raised in Hollister’s Original Reply Brief. Counsel herein incorporates by reference as Attachment One of this Motion Hollister’s Original Reply Brief filed with this Court September 22, 2009 as if fully set forth herein. With respect to the First Amendment considerations, we also make an argument pertaining to Attachment Two, April 3, 2009 Letter from Robert Bauer to John D. Hemenway, which counsel herein incorporates by reference as if fully set forth herein.

15

Roe v. Wade, 410 U.S. 113, 125 (1973). See also, Weinstein v. Bradford, 423 U.S. 147, 149 (1975). 20

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Conclusion For the foregoing reasons, this Honorable Court’s amici requests Leave to File their Brief Amicus Curiae. Respectfully submitted, Dated: November 27, 2009 s/ Lawrence J. Joyce LAWRENCE J. JOYCE, ESQUIRE Attorney for the Amici 1517 N. Wilmot Rd., #215 Tucson, AZ 85712 (520) 584-0236

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CERTIFICATION OF COMPLIANCE WITH FED. R. APP. P. 32(a)

Pursuant to Fed. R. App. P. 32(a) and D.C. Circuit Rule 32(a), I hereby certify that this brief contains 5,021words, excluding the parts exempted by the rules, and has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14-point typeface.

Dated: November 27, 2009

s/ Lawrence J. Joyce Amicus Curiae for himself In Pro Se and, Counsel for Amicus Philip J. Berg, Esquire 1517 N. Wilmot Road, Suite 215 Tucson, AZ 85712 (520) 584-0236 Email: barmemberlj@earthlink.net D.C. Circuit Bar Number 52501

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UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT GREGORY S. HOLLISTER, : : Appellant, : vs. : Court of Appeal Case No. : Consolidating No. BARRY SOETORO, et al. : : Appellees. : ORDER ON MOTION OF LAWRENCE J. JOYCE ESQUIRE and PHILIP J. BERG, ESQUIRE TO FILE A BRIEF AMICUS CURIAE

09-5080 09-5161

THIS CAUSE came before the United States Court of Appeals for the District of Columbia Judges, the Honorable ____________________________, __________________________, and _____________________________, on the Motion of Lawrence J. Joyce, Esquire and Philip J. Berg, Esquire to File a Brief Amicus Curiae in support of Appellants Gregory S. Hollister and John D. Hemenway, Esquire supporting reversal. Having reviewed the Motion and any responses thereto, and for good cause shown, it is hereby ORDERED that the Motion of Lawrence J. Joyce, Esquire and Philip J. Berg, Esquire to File a Brief Amicus Curiae is GRANTED. IT IS SO ORDERED. Dated: November _____, 2009. Hon. _________________________

1

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U.S. District Court for the District of Columbia Court of Appeals Case No.

Case No. 09-5080

1:08-cv-02254 JR

Consolidating No.

09-5161

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
_____________ Ο _____________

GREGORY S. HOLLISTER,
Plaintiff – Appellant, v.

BARRY SOETORO, et al,
Respondents – Appellee. _____________ Ο _____________

CERTIFICATE OF SERVICE
_____________________

I, Lawrence J. Joyce, Esquire, hereby certify that the Emergency Motion of Lawrence J. Joyce, Esquire and Philip J. Berg, Esquire to file a Brief Amicus Curiae was served via email this 27th day of November, 2009 upon the following:

John D. Hemenway, Esquire HEMENWAY & ASSOCIATES 4816 Rodman Street NW Washington, D.C. 20016 Email: JohnDHemenway@comcast.net Attorney for Appellant, Gregory S. Hollister

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Marc Elias Esquire PERKINS COIE 607 Fourteenth St., N.W. Washington, D.C. 20005-2003 melias@perkinscoie.com Attorney for Appellees, Barry Soetoro and Joseph Biden Andrew Harris Werbrock PERKINS COIE 607 14th Street, NW Suite 800 Washington, DC 20005-2003 awerbrock@perkinscoie.com Attorney for Appellees, Barry Soetoro and Joseph Biden

R. Craig Lawrence, Assistant U.S. Attorney U.S. Attorney's Office (USA) Appellate Division, Civil Unit 555 4th Street, NW Washington, DC 20530 Email: craig.lawrence@usdoj.gov Attorney for Appellees, Barry Soetoro and Joseph Biden
s/ Lawrence J. Joyce LAWRENCE J. JOYCE, ESQUIRE Attorney for the Amici

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