Thomas Hass v. Wisconsin Court of Appeals

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2001 WI 128 SUPREME COURT CASE NO.: OF WISCONSIN 01-0240-W COMPLETE TITLE: State of Wisconsin ex rel. Thomas Hass, Petitioner, v. Wisconsin Court of Appeals, Mark A. Ramsden, Raelynn Ramsden and Milton R. Ramsden, d/b/a Ramsden Dairy, Respondents. PETITION FOR SUPERVISORY WRIT OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: December 4, 2001 September 14, 2001 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: SYKES, J., dissents (opinion filed). ABRAHAMSON, C.J., joins dissent. NOT PARTICIPATING: ATTORNEYS: For the petitioner a petition was filed by Patricia M. Gibeault, Michael J. Modl and Axley Brynelson, LLP, Madison, and oral argument by Patricia M. Gibeault. For the respondent, Wisconsin Court of Appeals, a response was filed by David C. Rice, assistant attorney general. For the respondents, Milton, Mark and Raelynn Ramdsen, a response was filed by Robert J. Kasieta and Kasieta Legal Group, LLC, Madison, and oral argument by Robert J. Kasieta. 2001 WI 128 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 01-0240-W (L.C. No. 97 CV 30) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin ex rel. Thomas Hass, FILED Petitioner, v. DEC 4, 2001 Wisconsin Court of Appeals, Mark A. Ramsden, Raelynn Ramsden and Milton R. Ramsden, d/b/a Ramsden Dairy, Cornelia G. Clark Clerk of Supreme Court Respondents. PETITION for supervisory writ. ¶1 (Hass) WILLIAM A. seeks an BABLITCH, order from Denied. J. Petitioner this court, Thomas E. Hass pursuant to our constitutional superintending and administrative authority over all lower courts, directing the court of appeals to grant every petition for interlocutory appeal from a circuit court order in which the court denied a motion asserting that a final federal court judgment bars the claim preclusion grounds. state court proceeding on issue and Currently, the court of appeals is afforded discretion in granting such petitions, limited by the criteria for granting review enumerated under No. Wis. Stat. § 808.03(2)(1999-2000).1 01-0240-W Hass argues, however, that mandatory review of this and similar petitions is necessary to ensure respect unnecessary court for litigation, litigants injunction final in and from federal federal to judgments, discourage seeking court court an successful immediate enjoining to the avoid federal postjudgment state court from hearing adjudicated issues or claims. ¶2 Although Hass has identified valid policy concerns, we conclude that mandatory review of such interlocutory appeals is not required in this case. We are confident that the court of appeals considers, and will continue to consider, these policy concerns in deciding whether to grant such interlocutory appeals. I ¶3 In this case, it is the procedural history that is of particular importance for our review, not the underlying facts or causes of action. For this reason, our discussion of the facts and claims is limited. ¶4 In February 1997, the Ramsdens filed an action in Portage County Circuit Court against AgriBank, Hass, and Farm Credit Services of North Central Wisconsin alleging 13 different claims surrounding the Ramsdens' purchase of a dairy farm from AgriBank. Hass was an employee of AgriBank and was involved in the sale of the property. The Ramsdens' complaint alleged that 1 All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated. 2 No. 01-0240-W the property was environmentally contaminated at the time of purchase. The circuit court later dismissed Hass from the action on the ground that, as an agent of AgriBank, he could not be held liable under a negligence theory. dismissed their complaint against the The Ramsdens then remaining defendants without prejudice and appealed Hass's dismissal to the court of appeals. ¶5 second While the appeal was pending, the Ramsdens filed a complaint Circuit Court. including against AgriBank in the St. Croix County This complaint alleged seven causes of action, that AgriBank conditions of the farm. made misrepresentations about the AgriBank removed the case to the United States District Court for the Western District of Wisconsin. After significant motion federal for discovery summary district was judgment, court conducted, which concluded the that AgriBank court the filed granted. testimony a The of the Ramsdens' expert lacked scientific reliability and validity and therefore was not admissible as evidence. Without this testimony, the Ramsdens were left without any way of proving their case through expert testimony, and thus, dismissed the Ramsdens' action with prejudice. the court The Ramsdens appealed this judgment to the Court of Appeals for the Seventh Circuit, but later voluntarily dismissed this appeal in exchange for a waiver by AgriBank of recovery of its costs. ¶6 While this federal action was pending, the state court of appeals reversed the Portage County Circuit Court's dismissal of Hass and remanded for further proceedings. 3 See Ramsden v. No. Farm Credit 1998). Servs., 223 Wis. 2d 704, 590 N.W.2d 1 01-0240-W (Ct. App. Hass On remand, after the federal district court's judgment, moved for summary judgment based preclusion, among other grounds. on claim and issue The motion was denied. The court found that the elements were present for claim preclusion, but concluded that fairness considerations led to the conclusion that the Ramsdens' claims should not be barred. The court also held that issue preclusion would not apply because Wisconsin has a different standard for the admissibility of expert testimony than does the federal court. Hass appealed this decision to the state court of appeals. ¶7 the AgriBank then filed a motion for injunctive relief in federal enjoin the district state court circuit asking court the from court further to permanently addressing any issues between the Ramsdens and Hass or AgriBank arising from the purchase of the farm property. granted the injunction. The federal district court The court held that the injunction was necessary to protect or effectuate the federal court's judgment. See Ramsden v. AgriBank, 63 F. Supp. 2d 958, 960 (W.D. Wis. 1999). The Ramsdens appealed, and the Seventh Circuit vacated the district court's injunction. ¶8 the In reaching its decision, the Seventh Circuit examined Anti-Injunction Act, 28 U.S.C. § 2283, which generally prohibits federal courts from enjoining state court proceedings. The court noted that "[t]he Act is designed to prevent friction between state and federal courts and proceedings from federal interference." 4 to protect state court Ramsden v. AgriBank, No. 214 F.3d 865, 868 (7th Cir. 2000). Act the relitigation 01-0240-W However, an exception to the exception allows "a party with a favorable federal judgment to protect that judgment by enjoining repetitive state court proceedings instead of relying on a claim or issue preclusion defense." Id. Nevertheless, the court held that a federal court should not interfere with a state court proceeding where the litigants had first sought a decision in the state court on the preclusive effect of the federal court Id. at judgment except in the most extraordinary circumstances. 871. The court, however, did not find that such circumstances existed. ¶9 of Id. at 872. After the Seventh Circuit's decision, the state court appeals denied Hass's petition for interlocutory appeal. Hass then filed a petition for supervisory writ in this court. He seeks an order from this court directing the court of appeals to grant every petition for interlocutory appeal where the issue on appeal is whether a federal court judgment bars a state court proceeding on issue or claim preclusion grounds. The correctness of the circuit court's ruling is not before this court, and therefore, we will not discuss the merits of the circuit court's decision on issue and claim preclusion. II ¶10 should The issue presented in this case is whether this court exercise administrative its authority constitutional to direct the superintending court of appeals and to accept all petitions for interlocutory appeal where the circuit court has denied a claim that the state court action is barred 5 No. 01-0240-W by a final federal court judgment on issue and claim preclusion grounds. We decline to extend our authority to mandate review in such instances. Instead, based in part on concerns of comity between and the state federal courts, we urge the court of appeals to carefully review such future petitions. ¶11 Article Constitution provides superintending Under this litigation VII, that the we may lower 3(1) "[t]he and administrative power, in Section supreme authority control courts of of the Wisconsin court shall have all courts." course the over of ordinary Wisconsin. Arneson Jezwinski, 206 Wis. 2d 217, 226, 556 N.W.2d 721 (1996). v. Our application of this power may be as broad and as flexible as necessary to maintain the administration of justice in the courts of this state; however, we do not use such power lightly. Id. at 226. power where "'This court will not exercise its superintending there is another adequate remedy, by appeal or otherwise, for the conduct of the trial court, or where the conduct of the trial court does not threaten seriously to impose a significant hardship upon a citizen.'" Id. (quoting McEwen v. Pierce County, 90 Wis. 2d 256, 269-70, 279 N.W.2d 469 (1979)). ¶12 The question of whether the court will exercise its superintending authority is one of policy, not power. Phelan, 225 Wis. 314, 320, 274 N.W. 411 (1937). In re "'The inherent power of this court is shaped, not by prior usage, but by the continuing necessity that this court carry out its function as a supreme court.'" Arneson, 206 Wis. 2d at 231 (quoting In re Kading, 70 Wis. 2d 508, 519, 235 N.W.2d 409 (1975)). 6 No. ¶13 Hass asks that we use our 01-0240-W superintending and administrative power to require the court of appeals to accept petitions for interlocutory appeal, like his, involving a nonfinal order that denies granting a motion asserting that the state court proceeding is barred on issue and claim preclusion grounds in light of a final federal court judgment. Such orders are not appealable as of right, but are appealable by permission pursuant to Wis. Stat. § 808.03(2), which states: (2) Appeals by permission. A judgment or order not appealable as a matter of right under sub. (1) may be appealed to the court of appeals in advance of a final judgment or order upon leave granted by the court if it determines that an appeal will: (a) Materially advance the termination of the litigation or clarify further proceedings in the litigation; (b) Protect the petitioner from substantial or irreparable injury; or (c) Clarify an issue of general importance in the administration of justice. In reviewing such appeals, the court must also examine whether the defendant has a substantial likelihood of success on the merits. State v. Webb, 160 Wis. 2d 622, 632, 467 N.W.2d 108 (1991). ¶14 In Arneson, 206 Wis. 2d 217, we exercised our superintending and administrative authority to require the court of appeals to grant petitions for interlocutory appeal in which the circuit court had denied a claim of qualified immunity from an action under 42 U.S.C. § 1983, but only if the denial turned on an issue of law. three primary factors. Id. at 219-20. We based our decision on First, we noted that, without mandatory 7 No. 01-0240-W review, a state official would be left with no other adequate remedy on appeal. Id. at 226-27. That is, because qualified immunity is immunity from suit, even if the official won on appeal, the immunity, official which is loses to the avoid primary the benefit burden official cannot be reimmunized on appeal. of of qualified litigation. The Second, we noted that a plaintiff may suffer harm if the case proceeds to trial and appeal and it is then determined that the defendant official is not liable for damages because of qualified immunity. 227. Id. at In short, the plaintiff may incur the expense and hardship of full trial and appeal. Third and finally, we held that, if mandatory review is not available, society as a whole incurs social costs associated with such litigation. included "'distraction of officials These costs their from Id. governmental duties, inhibition of discretionary action, and deterrence of able people from public service.'" Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982)). ¶15 orders After citing these reasons, we determined that such denying immediately criteria a appealable enumerated Id. at 229. claim of qualified because under they immunity would always Wis. Stat. § 808.03(2)(a) should be meet the and (b). We stated: [W]e determine that immediate interlocutory appeal will protect state officials from the substantial or irreparable injury that will result if the suit is erroneously allowed to proceed. In addition, we conclude that determination of this issue at the early stages of litigation will clarify the proceedings for all parties involved, as well as the public, by 8 No. 01-0240-W resolving it "before extensive measures are taken to defend the public officials." Id. (citations omitted). We also noted that requiring review of such orders was in accordance with a majority of jurisdictions and with Mitchell v. Forsyth, 472 U.S. 511 (1985). Id. at 229- 230. ¶16 Indeed, as Hass argues, there are some policy concerns that are implicated by both interlocutory appeals involving a claim of qualified immunity and interlocutory appeals involving preclusive effect of a final federal judgment. Specifically, in both instances, denial of the petition may result in unnecessary litigation if the court of appeals later overturns the circuit court's decision on postjudgment appeal. Further, in both instances, if the petition is denied, the defendant may lose the benefit of the claim. The benefit and underlying purpose of both issue and claim preclusion is ensuring finality (that is, enforcing repose) and foreclosing relitigation. Owens-Corning Fiberglas Corp., 230 See Sopha v. Wis. 2d 212, 235, 601 N.W.2d 627 (1999); Lindas v. Cady, 183 Wis. 2d 547, 553-54, 515 N.W.2d 458 (1994). This benefit is lost if the petition for interlocutory appeal is denied and the matter proceeds to trial, even if the circuit court's decision is later reversed on postjudgment appeal. ¶17 exist. Despite these similarities, however, key differences To begin with, as we noted in Arneson, the failure to grant interlocutory appeals on a claim of qualified immunity invokes important social costs. Such costs are often absent in 9 No. interlocutory because appeals private involved. litigants, issue public not and claim officials, preclusion are often Thus, costs to society are not presented; only costs associated with involved. costs involving 01-0240-W the expense and burden of litigation are Indeed, such private litigants often must incur such when the court denies an interlocutory appeal of a nonfinal order (for example, motion to dismiss or for summary judgment), even though this nonfinal order may be overturned later on appeal. substantial Such costs, although significant, are less than costs interlocutory appeals to society. at issue In in addition, Arneson, unlike there is the no persuasive authority from the United States Supreme Court or any other jurisdiction to support the conclusion that such appeals require mandatory review. For these reasons, our holding in Arneson and is distinguishable does not require use of our superintending and administrative authority in this case. ¶18 Instead, Hass's case more closely resembles State v. Jenich, 94 Wis. 2d 74, 288 N.W.2d 114, modified per curiam, 94 Wis. 2d 97a, 292 N.W.2d 348 (1980). to use our require the superintending court of and appeals to In that case, we declined administrative grant every authority nonfinal denying a motion to dismiss based on double jeopardy. 97a n.1. to order Id. at Instead, we concluded that the review of such orders was appropriately left to the discretion of the court of appeals pursuant to Wis. Stat. § 808.03(2). Id. Despite this conclusion, we nevertheless urged the court of appeals to be careful in exercising that discretion. 10 Id. at 97a-97b. We No. 01-0240-W stated that "[g]iven the serious constitutional questions raised by claims of double jeopardy, review of such orders will often be necessary to protect the accused from 'substantial or irreparable injury,' one of the three criteria for testing the appropriateness of review under sec. 808.03(2)." ¶19 Indeed, jeopardy. claim preclusion is Id. at 97b. similar to double Both serve to preserve the finality of judgments and to protect defendants from subsequent litigation or prosecution. See State v. Canon, 2001 WI 11, ¶8, 241 Wis. 2d 164, N.W.2d 270; Sopha, 230 Wis. 2d at 233, 235. has also been regarded as embodied guarantees of double jeopardy. in 622 Issue preclusion the constitutional See Canon, 2001 WI 11, ¶¶11-13; State v. Vassos, 218 Wis. 2d 330, 342, 579 N.W.2d 35 (1998). In light of these similarities, we conclude that Jenich provides a basis for our decision in this case. ¶20 We declined to exercise administrative authority in Jenich. our superintending and We did so even though, as in this case, denials of such petitions for interlocutory appeal present concerns of both unnecessary litigation and the loss of any benefit of the claim. Certainly, double jeopardy, because of its basis in the Constitution, presents a more compelling basis for authority LaFave (noting exercising than et al., that issue our and Criminal the Double superintending claim and preclusion. Procedure, Jeopardy § 25.1(b) Clause administrative See (2d was 5 Wayne ed. R. 1999) established primarily to protect defendants from prosecutorial oppression). 11 No. 01-0240-W Following Jenich, we conclude that use of our superintending and administrative authority is not required in this case. ¶21 the Hass argues, however, that concerns of comity between state and federal superintending and court also support administrative the authority use in of this our case. Comity is harmed, he contends, because, under the current law, a state court litigant who prevails in federal court will not seek dismissal of any subsequent state court action on grounds of issue or claim preclusion in the state court. Instead, such litigants will seek an injunction in federal court to enjoin the state court action. Hass argues that the end result will be federal court interference into state court proceedings and such interference will be lessened only if federal courts are assured that the state court of appeals will automatically review any circuit court decision denying preclusive effect to a final federal judgment. ¶22 In determined Ramsden, that the 214 F.3d ruling in at 872, Parsons the Seventh Steel, Inc. Circuit v. First Alabama Bank, 474 U.S. 518 (1986), created this potential for conflict between the state and federal courts. The Ramsden court noted that, according to Parsons, once a litigant raises a claim preclusion defense in state court and the state court rules on it, the federal courts are bound by that determination. Id. at 868-69. courts give preclusion, judgment Thus, in light of the deference that federal to state litigants will no court who longer rulings obtain wait 12 for a on issue favorable the state and claim federal court court ruling; No. 01-0240-W instead, they will rush back to federal court for an injunction to prevent the state court ruling. ¶23 We recognize that Id. at 872. friction between the state federal courts may occur under such circumstances. requiring the confronting court this of issue appeals will not to review eliminate However, every such and appeal friction. Indeed, despite mandatory review, state court litigants who have obtained a favorable final judgment in federal court may still seek a federal action. court injunction to prevent any state court Thus, mandatory review serves comity only to the extent that it provides an additional determination on the preclusion claim. Therefore, such review would not promote comity to the same extent as the action taken by the court in Ramsden, 214 F.3d 865, where the court avoided direct friction between the courts by limiting the federal court's ability to permanently enjoin state court action. court judgments courts. We are should Certainly, we recognize that federal be confident, given their however, full that effect our state in state circuit courts will adequately provide full and fair resolution of such claims of issue and claim preclusion. Litigants may then seek appeal of such nonfinal orders under Wis. Stat. § 808.03(2). ¶24 Further, any concerns of comity are outweighed by our concerns of maintaining a proper working relationship between this court and the court of appeals. The parties and the court of appeals have not provided us with determinative information on the potential effects of such mandatory review on the court's docket. However, we are mindful that such automatic grants of 13 No. interlocutory appeals are generally disfavored 01-0240-W because they cause delay in litigation and increase the burden of the court of appeals. ¶25 At the same time, however, we are not unmindful of the advantages of granting such petitions for interlocutory appeals. Indeed, if avoided; review issues is granted, affecting the unnecessary ultimate litigation determination may be of the action may be decided early on; and comity may be promoted. In previous cases, Jenich in particular, we have urged the court of appeals to be careful in exercising discretion when reviewing these petitions. See Jenich, 94 Wis. 2d at 97a-97b; see also State ex rel. A.E. v. Green Lake County Cir. Ct., 94 Wis. 2d 98, 288 N.W.2d 125, modified per curiam, 94 Wis. 2d 105d, 292 N.W.2d 114 (1980) (encouraging the granting of leave to appeal in cases where juvenile court jurisdiction is waived). We have done so while noting that granting such appeals will often be necessary to protect irreparable injury. serious claimant from substantial or See Jenich, 94 Wis. 2d at 97b (also citing constitutional Wis. 2d at 105d. the concerns); State ex rel. A.E., 94 As previously stated, we are confident that the court of appeals considers, and will continue to consider, the valid policy concerns raised by Hass in this case in deciding whether to grant such interlocutory appeals. III ¶26 In sum, Hass's request for an order is denied. Following Jenich, we will not exercise our superintending and administrative authority in this case to require the court of 14 No. appeals to accept all petitions for interlocutory 01-0240-W appeal in which the circuit court denied a motion asserting that a final federal judgment bars the state court proceeding based on issue or claim preclusion grounds. By the Court. The petition for supervisory writ is denied. 15 No. ¶27 DIANE dissent. I authority over S. agree SYKES, with the J. the lower I (dissenting). majority courts that under our 01-0240-W.dss respectfully superintending Article VII, Section (3)(1) of the Wisconsin Constitution is not invoked lightly. Arneson (1996). v. Jezwinski, 206 Wis. 2d 217, 226, 556 N.W.2d 721 However, considerations of federal-state court comity weigh heavily in favor of its exercise in this instance. ¶28 I interlocutory would direct review of that all the court nonfinal of circuit appeals grant court orders declining to give preclusive effect to federal court judgments. Federalism and the orderly functioning of our dual court system would be best served by this gesture of procedural respect in the state courts for federal court judgments. ¶29 As noted by the majority, in Ramsden v. AgriBank, 214 F.3d 865 (7th Cir. 2000), the federal court litigation related to this case, the United States Court of Appeals for the Seventh Circuit held that a federal court generally should not issue an injunction against state court proceedings to protect a prior federal court judgment under the Relitigation Exception to the Anti-Injunction Act2 where a state court has expressly declined to give the federal court judgment preclusive effect. Relying on the United States Supreme Court's decision in Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518 (1986), the federal appellate court noted that "[b]ecause the relitigation exception bears on the delicate relationship between state and federal 2 28 U.S.C. § 2283 (1999). 1 No. courts, strict timing requirements cabin its 01-0240-W.dss invocation." Ramsden, 214 F.3d at 868. ¶30 The court then considered the federal court's interest in finality and protection of its own judgments against concerns of "comity[] and federalism that must restrain a federal court when asked to enjoin a state court proceeding." Id. at 869 (quoting Mitchum v. Foster, 407 U.S. 225, 243 (1972)). The court concluded that once a state court has explicitly rejected a preclusion defense premised on a prior federal court judgment, "the affront of federal court intervention stripping the state court of power to continue is greatly magnified." F.3d at 870. Ramsden, 214 Under these circumstances, the court held, "the interests in preventing possible relitigation [embodied in the Relitigation Exception to the Anti-Injunction Act] are . . . generally outweighed by the heightened comity concerns except in the most extraordinary circumstances." ¶31 the Id. at 871. The same concerns for federalism and comity animate question presented procedural respect do judgments? in the this court. state courts What owe to measure federal of court Without commenting on the substantive merits of the preclusion defense in this case, I conclude that federal-state comity and the "delicate relationship between state and federal courts" require that all nonfinal circuit court orders declining to give preclusive effect to federal court judgments be immediately appealable. ¶32 As noted by the majority, in Arneson, this court held that the court of appeals must always grant interlocutory review 2 No. 01-0240-W.dss of nonfinal circuit court orders denying qualified immunity to government officials. concluded that immunity a defense Arneson, 206 Wis. 2d at 229. circuit will court always order rejecting satisfy the The court a first qualified and second statutory criteria for discretionary review, viz, that immediate appeal will materially advance the termination of the litigation or clarify further proceedings, or protect the appealing party from substantial or Wis. Stat. § 808.03(2)(a) majority, this individual and irreparable and conclusion (b). As was based benefits societal injury. of on Id.; discussed the by that the fact the qualified immunity largely be lost if immediate appeal were unavailable. would Id. at 225-227. ¶33 The same litigant and the is true public at in this large context. share an The private interest in the finality of judgments, the avoidance of repetitive litigation in different courts (with the possibility of conflicting results), and the prevention of friction between state and federal courts. These interests would be seriously compromised if state court orders declining to give preclusive effect to federal court judgments were not immediately appealable. ¶34 The value of a federal court judgment would be substantially diminished if the individual holding that judgment is forced to undergo relitigation in state court before being allowed to preclusion appeal defense an allegedly based upon erroneous the federal rejection court of a judgment. Unnecessary, repetitive litigation may be avoided by immediate 3 No. interlocutory appeal. 01-0240-W.dss For these reasons, circuit court orders declining to give preclusive effect to federal court judgments like orders denying qualified governmental immunity will always satisfy the first two statutory criteria for interlocutory appeal. ¶35 the But the individual judgment-holder's interests are not only interests at stake. here. A policy implicated Broader that systemic provides concerns the are procedural protection of immediate interlocutory appeal would advance the reciprocal respect owed by state and federal courts to each other's judgments and help avoid conflict between the state and federal judicial systems. ¶36 The Seventh Circuit's decision in Ramsden was premised on a policy of restraint and sensitivity to considerations of federal-state court comity. It established a rule of non- interference in ongoing state court proceedings even where the law would otherwise allow an injunction to protect a federal court judgment in deference to the judgments of the state courts where those courts have expressly ruled on preclusion issues. ¶37 Relying again on Parsons Steel, the Ramsden court said that, absent extraordinary circumstances, "[c]hallenges to the correctness of a state court's determination as to the conclusive effect of a federal judgment must be pursued by way of appeal through the state-court system." 872, quoting specifically Parsons noted Steel, the 474 U.S. availability 4 of Ramsden, 214 F.3d at at 525. The interlocutory court review No. 01-0240-W.dss under Wis. Stat. § 808.03(2) as a means of correcting a mistaken rejection of a preclusion defense based upon a federal court judgment. ¶38 Id. at n.3. We should demonstrate similar restraint and sensitivity to considerations of federal-state court comity by allowing automatic circumstances. interlocutory appeal under these In declining to do so, the majority cites State v. Jenich, 94 Wis. 2d 74, 288 N.W.2d 114, modified per curiam, 94 Wis. 2d 97A, 292 N.W.2d 348 (1980), a double jeopardy case. Jenich, however, provides little illumination of the issue presented in this case. ¶39 The court's original opinion in Jenich was split: three members of the court concluded that an order denying a motion to dismiss on double jeopardy grounds was a final order immediately appealable; two members of the court concluded it was a nonfinal discretionary should order always grant invariably met the and, review, that therefore, the court review as a matter of criteria of course; for appeals and two members of the court concluded that it was a nonfinal order subject only to review at the court of appeals' discretion. Id. at 81-82. ¶40 That opinion was later reconsidered, and the per curiam opinion on reconsideration modified the split opinion and held that a denial of a motion to dismiss on double jeopardy grounds was a interlocutory however, that nonfinal review. the order Id. court subject at of only to discretionary 97A-B. The court appeals should "be 5 cautioned, careful in No. exercising that discretion" because of 01-0240-W.dss the "serious constitutional questions raised by claims of double jeopardy." Id. ¶41 In a footnote reconsideration, invoke its the to court superintending the per declined, authority curiam without to opinion on to explanation, require the court of appeals to hear all permissive appeals from orders rejecting double jeopardy defenses. Id. There was no discussion of the matter whatsoever, except in a concurrence to the per curiam opinion. Jenich Id. at 97D-98 (Abrahamson, J., concurring). provides little analytical support for As such, the majority's conclusion in this case, except perhaps by way of extrapolation from the court's non-discussion of the issue in a footnote. ¶42 In my judgment, considerations of federal-state court comity are enough to tip the scales in favor of exercising our constitutional superintending authority to require interlocutory review of nonfinal circuit court orders declining preclusive effect to federal court judgments. to give It does no damage to the relationship between this court and the court of appeals to do so, as there is no evidence that it will cause a significant increase in the court of appeals' docket. ¶43 between It is, however, the state and protection of detrimental federal interlocutory courts appeal to to when the deny a relationship the circuit procedural court has declined, perhaps erroneously, to give preclusive effect to a federal court judgment. Accordingly, I respectfully dissent. 6 No. ¶44 01-0240-W.dss I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent. 7 No. 1 01-0240-W.dss

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