Reply Brief — Gambla v. Woodsonson (No. 06-1193)

Q FILED

No. 06-1193

| JUL 5 ~ 2007 7

OFFICE OF THE CLERK

SUPREME COURT, U.S.

Su The

Supreme Court of the United States

CHRISTOPHER M. GAMBLA,

Petitioner,

KIMBERLY K. WOODSON,

Respondent.

On Petition For Writ Of Certiorari

To The Appellate Court Of Illinois,

Second District

REPLY TO BRIEF IN OPPOSITION

CHRISTOPHER M. GAMBLA, pro se

1325 Nagel Court

West Chicago, IL 60185

(630) 562-9407

(630) 562-9408 —- fax

QUESTIONS PRESENTED FOR REVIEW

1. Does a court's use of race as the basis for

determining child custody violate the Equal Protection

Clause of the Fourteenth Amendment?

2. Does a court's consideration of race as a factor

in child custody determinations violate the Equal

Protection Clause of the Fourteenth Amendment?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .............c00000008 i

BR Ie CRT 6 TE cecescctecesevetmnnnsnecsecinentteneniomantininnin ii

Sede CE AF SEE EID seevecsseresesssensstncinnesiceninienvnetian iii

STATEMENT OF THI CAGES .cccscsecoscscscocescocsvensvosorsovesoses 1

REASONS FOR GRANTING THE WRIT.............ccceseeeeees 4

A. The Illinois Appellate Court Decision

Conflicts With The Position Of The United

Seay STINE CRIES eccsecccetciercvnssmiencnesiteeenniens 5

Eas ccnicecensisnnciionisicciiannuiiieimnntutibinaadnnbiads 7

TABLE OF AUTHORITIES

Page

CASES

DeLander v. DeLander, 37 U.S.L.W. 2139 (Cal.

I GR. SOE Bi, TI wictieneiccitenttntienmnnencnpsciciaetornnnn 6

Fountaine v. Fountaine, 9 Tll.App.2d 482, 133

ee bites cialahunisehrnituldlnnaitabiddidsanieetavieene 4,6

Langin v. Langin, 2 Tll.App.3d 544, 276 N.E.2d

a ccscnilaiconl 4,6

Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879,

FES | ee LN 1, 4, 5, 7

Russell v. Russell, 80 Tl.App.3d 41, 399 N.E.2d

ely Ce BE, ETS Ce FO tvecienericerssenenntemresernenentoces 4,5

STATEMENT OF THE CASE

This brief is filed in reply to the Respondent's brief

in opposition.

The Petitioner stands on his Statement of the Case

in the petition for writ of certiorari, and in reply to the

Respondent's statements, provides the following

additional information.

There is no dispute between the parties that the

issue of race was raised by the Respondent in the Trial

Court, that the child's and parents’ race was considered

by the Trial Court in determining custody, that prior to

considering race as a factor in determining custody the

parties were held equal or "roughly equal" by the Trial

Court as to all other factors, and that the issue of race

was the determinative factor, or "tipping point”, in

awarding custody.

The parties dispute whether the Appellate Court

opinion in this case conflicts with this Court's decision in

Palmore v. Sidoti, 466 U.S. 429 (1984), and whether there

is a split among the state courts of last resort in their

interpretation of Palmore.

The Petitioner also disputes and clarifies the

following.

1) The Respondent sets forth, "On May 13, 2003,

Christopher Gambla filed for divorce from Kimberly

Woodson after one year of marriage.” Respondent's brief

in opposition p. 4. In fact, each of the party's attorneys

filed petitions for dissolution of marriage on their behalf,

and Mr. Gambla's petition was filed the day before Ms.

2

Woodson's (R. C0001 and C0815). Ms. Woodson's petition

was thereafter consolidated with Mr. Gambla's petition.

2) The Respondent sets forth, "Ms. Woodson had

one child from a previous marriage - a six-year old son

named Che Woodson." Respondent's brief in opposition p.

4. Ms. Woodson was never married to her son's father.

3) The Respondent sets forth, "As for Kira's half-

brother, Che, Arl[{iJne noted:" Respondent's brief in

opposition p. 4. The quotations attributed to that

statement were made by Ms. Woodson's sister, Linda, and

not Mr. Gambla's mother, Arline.

4) The Respondent sets forth, "At trial, two experts

recommended that Gambla be awarded sole custody of

Kira, at least in part on the basis that Kimberly had (at

the time) petitioned for removal of Kira to her home state

of North Carolina." Respondent's brief in opposition p. 4.

This statement contradicts the evidence at trial. The

Trial Court itself asked Dr. Hynan, “Dr. Hynan, would

your opinion relative to custody be any different had

removal not been an area that you looked into at the time

that you did your evaluation?" Dr. Hynan answered, "It

would not be any different.” (R. C1541). Similarly, Mr.

Gambla's attorney asked Dr. Hatcher, “Did your opinion

rest in any part on the issue of removal?" Dr. Hatcher

answered, "No. The issue had been settled." (R. C1743).

5) The Respondent sets forth, "However, finding

that their [Drs. Hynan's and Hatcher's] conclusions were

based largely on the pendency of a petition to remove Kira

to North Carolina, the trial court determined that given

the subsequent withdrawal of this petition, these

conclusions carried less weight." Respondent's brief in

opposition p. 6. The record clearly indicates that this

3

determination by the Trial Court was incorrect (see

testimony in number 4 above). As stated by the Appellate

Court dissent, "This testimony alone illustrates that the

trial court's ultimate custody decision was mistaken,

when reviewed under the clearly erroneous standard,

because the court incorrectly weighed the testimony by

incorrectly factoring nonexistent impeachment of the

reasons for the doctors' custody opinions." Pet. Appendix

p. 55a. Considering that the Trial Court determined that

the case was exceedingly close and improperly discounted

the doctors’ opinions, it logically follows that a different

result would have occurred. This is even more evident if

race is an unconstitutional consideration.

6) The Respondent sets forth, "The court noted,

inter alia, that Kira appeared to love both of her parents

and to be ‘happy spending time with each of them,' and

furthermore that Kira had a ‘loving relationship with her

[step]brother Che." Respondent's brief in opposition p. 6.

It is noteworthy that the Trial Court also found that Kira

“has a loving appropriate, relationship with her cousins

with whom she lives when she spends time with the

Petitioner. In addition, there is no indication that she has

anything other than a loving relationship with her grand

parents, her aunts and uncles and all other family

members with whom she comes in contact. In short, she

is a loving child who loves her relatives in addition to her

parents and who, by all accounts, is loved by each of them

as well." Pet. Appendix p. 66a. Im accordance with the

Judgment of Dissolution of Marriage, and although Ms.

Woodson was awarded sole custody of Kira, the parties

continue to share her physical custody on a 50/50 basis

until her enrollment in school.

7) The Respondent sets forth, "As the Appellate

Court observed, Petitioner conceded at trial that ‘race

4

may be considered." (emphasis added). Respondent's

brief in opposition p. 10. The Respondent similarly sets

forth, "the narrower question of whether race can be

considered at all was conceded away by the Petitioner in

the trial court below" (emphasis added). Respondent's

brief in opposition p. 15. These are not factual

statements. The Petitioner did not concede in the Trial

Court that race may be considered. In fact, the Petitioner

strenuously objected on no less than two occasions in the

Trial Court to the introduction of race into the

proceedings. Pet. pp. 5-7. The Petitioner conceded during

oral arguments at the Appellate Court that Illinois case

law allowed the consideration of race in child custody

determinations so long as it was not the determinative

factor in the decision ("race alone cannot outweigh all

other considerations and be decisive of the question of

custody"), Fountaine v. Fountaine, 9 Ill.App.2d 482, 133

N.E.2d 532 (1956); Langin v. Langin, 2 Ill.App.3d 544,

276 N.E.2d 822 (1971); and Russell v. Russell, 80

Nl.App.3d 41, 399 N.E.2d 212, 35 Ill.Dec. 378 (1979). Mr.

Gambla went on, however, to argue based on Palmore

that he disagreed with this state case law and any

consideration of race by the courts in determining

custody. Mr. Gambla made specific oral and written

arguments at the Appellate Court to that effect.

REASONS FOR GRANTING THE WRIT

The Petitioner stands on his Reasons for Granting

the Writ in the petition for writ of certiorari, and in reply

to the Respondent's arguments, provides the following.

wt

jg

4

5

A. The [Illinois Appellate Court Decision

Conflicts With The Position Of The United

States Solicitor General

The Respondent argues, "the court's measured

approach reveals that racial or cultural considerations are

a factor of last resort rather than first opportunity to be

reached only after other statutory factors are deemed to

be roughly equal. As a matter of pure probability, with

eight statutory factors to consider, the likelihood of race

coming into play repeatedly (at least as the Illinois court

considered it here) appears small." Respondent's brief in

opposition p. 9. The Respondent further argues, "And if

race may be considered, then it may on occasion be the

tipping point and that is all that this case is about."

Respondent's brief in opposition p. 10.

In its amicus curiae brief for the petitioner in

Palmore v. Sidoti, 466 U.S. 429 (1984), the United States

Solicitor General would seem to disagree with the

Respondent, and even predicted the scenario (as in the

instant case) where race is necessarily converted into the

decisive factor after the parties are held equal as to all

other factors. That brief states,

In addition to Florida, one other state

allows consideration of a subsequent

interracial marriage so long as race is not

treated as the “controlling” factor in custody

determinations. /6/ Russell v. Russell, 80

Ill.App.3d 41, 43, 399 N.E.2d 212, 215

(1979) (permissible for trial court to

acknowledge potential social pressures

attributable to interracial marriage so long

as race alone is not the decisive factor);

Langin v. Langin, 2 Tll.App.3d 544, 547, 276

_ N.E.2d 822, 824 (1971) (quoting Fountaine

v. Fountaine, 9 Ill.App.2d 482, 486, 133

N.E.2d 532, 535 (1956)) ("race alone cannot

outweigh all other considerations and be

decisive of the question (of custody)"). /7/ It

is our view that these decisions are

erroneous. Once race is held to be a

"relevant" consideration, it is virtually

impossible to prevent it from becoming the

“controlling” consideration in any particular

case. If, for example, the natural parents

are each found equally fit, then

consideration fof race or] of one parent's

subsequent interracial marriage necessarily

will be converted into the decisive factor.

Moreover, even if it could be confined to

"relevant" rather than controlling status,

considering race at all in the custody

decision would be unconstitutional. As one

court has recognized, "(t)he very act of

considering race as a factor, and then

disregarding it as a controlling factor,

requires that the state admit contrary to

the Constitution, that there are differences

in human beings because of their color."

DeLander v. DeLander, 37 U.S.L.W. 2139

(Cal. Super. Ct. Aug. 14, 1968). /8/ We

therefore submit that race should be

altogether stricken from consideration in

change-of-custody proceedings. (emphasis

added) -

Therefore, the consideration of race in any manner

in child custody determinations conflicts with this Court's

7

decision in Palmore and the position of the United States

Solicitor General.

CONCLUSION

For the foregoing reasons, Mr. Gambla respectfully

requests the Court to grant his petition for writ of

certiorari.

Respectfully submitted,

CHRISTOPHER M. GAMBLA, pro se

1325 Nagel Court

West Chicago, IL 60185

(630) 562-9407

(630) 562-9408 - fax