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Interlocutory Appeal – Issue / Claim Preclusion

State ex rel Thomas Hass v. Wisconsin Court of Appeals, 2001 WI 128


¶10. The issue presented in this case is whether this court should exercise its constitutional superintending and administrative authority to direct the court of appeals to accept all petitions for interlocutory appeal where the circuit court has denied a claim that the state court action is barred 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 the state and federal courts, we urge the court of appeals to carefully review such future petitions.

Note: The relevance of this case is in its reiteration, ¶18, of 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):

In that case, we declined to use our superintending and administrative authority to require the court of appeals to grant every nonfinal order denying a motion to dismiss based on double jeopardy. Id. at 97a n.1. 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. Id. at 97a-97b. We 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).” Id. at 97b.


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