http://www.kansascity.com/mld/kansascity/business/9249679.htm?1c
Posted on Tue, Jul. 27, 2004
LEGAL AFFAIRS
Kansas prisoner wins case involving Jewish holiday
By DAN MARGOLIES
Columnist
Few non-Jews are familiar with the Jewish holiday of Sukkot, otherwise awkwardly translated into English as the Feast of Tabernacles.
The biblically ordained holiday is the Jewish festival of thanksgiving for the final gathering of the harvest. It also commemorates the wanderings of the ancient Israelites in the wilderness before their conquest of the land of Canaan and entrance into their promised land.
Traditional Jews celebrate the holiday by erecting a sukkah, or small makeshift enclosure, designed to recall their forbears' living conditions in the wilderness. (The holiday's name, Sukkot, is the plural in Hebrew of sukkah.)
Mark A. Wares, an inmate at the Hutchinson Correctional Facility who said he ''acknowledged Judaism as his way of life'' in 1996, wanted to erect one, too. But the then-prison chaplain initially refused his request. He said that placing a napkin over Wares' head would fulfill the biblical injunction to dwell in a sukkah during the weeklong holiday.
Eventually the prison acceded to Wares' request, but prison officials refused to stake down the structure to keep it from being blown over by the wind. The officials said the stakes posed a security concern.
So Wares, represented by lawyers at Shook Hardy & Bacon, sued the chaplain and other prison officials, alleging he was denied his religious rights under the First Amendment.
The case went to a jury trial in U.S. District Court in Kansas City, Kan. Earlier this month, following three days of testimony, the jury found for Wares and awarded him $1 in nominal damages and $1,000 in punitive damages against the former chaplain, D.A. VanBebber. The other officials were found not liable.
The result was particularly remarkable given that the jury was allowed to hear evidence about why Wares was in prison in the first place. Although U.S. District Judge John Lungstrum imposed some limitations on the evidence, the jury heard that Wares was convicted in 1987 of aggravated battery and in 1992 of aggravated battery and kidnapping.
''I was really impressed with the jury. They were attentive and seemed to care. They took their job very seriously,'' said Matt Miller, who tried the case with colleague Scott Nehrbass.
Nehrbass, who tried a similar case five years ago involving an inmate who was refused kosher meals (by the same chaplain), said jurors were asked not to judge Wares by his past.
A crucial evidentiary ruling involved that earlier case, brought by inmate Jimmy Searles. Lungstrum allowed jurors to hear evidence of the verdict in the Searles case by way of showing that VanBebber had ''recklessly disregarded the religious rights of the same group of Jewish inmates,'' Nehrbass said.
The jury awarded Searles $3,650 in compensatory damages and $42,500 in punitive damages. The 10th U.S. Circuit Court of Appeals later threw out the compensatory award, ruling that the Prison Litigation Reform Act of 1996 bars damages for mental and emotional injuries in the absence of a physical injury. Because the punitive award was tied to the compensatory award, the court threw out the punitive-damage award as well.
The court concluded that ''a reasonable jury'' could find from the evidence that the defendant's actions ''were in reckless disregard of the plaintiff's rights.'' The court then ordered a retrial on the issue of punitive damages alone, but the case was settled on confidential terms before going to trial.
Because of that earlier 10th Circuit ruling, the jury in Wares' case was limited to awarding nominal compensatory damages. But the nominal $1 award ''was a symbol that his rights were violated'' and served as the predicate for the punitive-damage award, Nehrbass said.
Nehrbass was appointed by the court to represent Wares, just as he was appointed to represent Searles. (Appointing a lawyer from a firm called Shook Hardy & Bacon to represent someone wanting to keep kosher showed that the court had a wry sense of humor or was oblivious to the irony of the appointment.) Normally given to trying torts and business cases, Nehrbass, if only by default, has become something of a prisoner rights' expert — at least regarding matters pertaining to Jewish ritual.
''I do seem to have become the counsel of choice for Jewish inmates,'' said Nehrbass, who is not Jewish.
To reach Dan Margolies, legal affairs reporter, call
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