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‘Judge Shopping’ Decried in Inmate Dental Case

CHICAGO (CN) - Cook County Jail inmates can fight for better dental care as a class, the 7th Circuit ruled, noting that the case may have benefitted from inadvertent "judge shopping."

Lead plaintiff John Smentek claims that the failure to make more than a single dentist available to the 10,000 inmates of Cook County jail constitutes cruel and unusual punishment.

He proposed a class that would include both convicted inmates seeking relief under the Eighth Amendment, and pretrial detainees whose claims arose under the due-process clause of the 14th Amendment.

But Smentek's suit came on the heels of two materially identical, and ultimately unsuccessful, claims brought former Cook County Jail inmates Vincent Smith and Lance Wrightsell.

Though U.S. District Judge Joan Humphrey Lefkow cited those earlier dismissals in initially refusing to certify Smentek's proposed class, she reversed in light of Smith v. Bayer Corp., a 2011 Supreme Court decision that prevents federal courts from enjoining copycat class action suits filed in federal or state courts by individuals who were not party to the original case.

The 7th Circuit, which applied Smith last month to a case involving Sears washer drums, affirmed somewhat reluctantly.

Echoing the qualms it expressed in the Sears case, the court said it was "troubled" by the fact that Lefkow certified Smentek's class as 12 Cook County Jail dental suits remained pending.

"The district judge's grant of class certification is therefore affirmed," Judge Richard Posner wrote for a three-member panel. "But this is not to say that the judge's ruling was correct; maybe the other two judges were correct. The appeal asks us to decide only whether comity between federal district judges' rulings on class certification is preclusive. We have decided: it is not."

"We don't understand why all three cases were not assigned to the same judge," the decision states earlier. "Besides the usual advantages of consolidation, it would have avoided the problem that has precipitated the appeal in this case, because a single judge would not be of different minds about three identical lawsuits."

Comity played a large role in the ruling, with Posner noting that the high court never state the degree of deference federal judges must have for each other's rulings.

"The court's reference to 'comity' in Smith v. Bayer Corp. was cryptic," Posner wrote.

He added that "a standard definition of 'comity' is 'the respect that sovereign nations (or quasi-sovereigns such as the states of the United States) owe each other.' ... But [in other cases] ... the word 'comity' is used in a looser sense to caution judges against stepping on each other's toes when parallel suits are pending in different courts."

Posner said the Supreme Court intended judges to interpret the term loosely, and said comity should not be considered as a synonym for collateral estoppel.

"We are left with the weak notion of 'comity' as requiring a court to pay respectful attention to the decision of another judge in a materially identical case, but no more than that even if it is a judge of the same court or a judge of a different court within the same judiciary," he wrote.

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