¶ 27. (dissenting). I respectfully dissent. I agree with the majority that our superintending authority over the lower courts under Article VII, Section 3(1) of the Wisconsin Constitution is not invoked lightly. Arneson v. Jezwinski, 206 Wis. 2d 217, 226, 556 N.W.2d 721 (1996). However, considerations of federal-state court comity weigh heavily in favor of its exercise in this instance.
¶ 28. I would direct that the court of appeals grant interlocutory review of all nonfinal circuit court orders declining to give preclusive effect to federal court *649judgments. 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 Act1 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 courts, strict timing requirements cabin its 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 "comityD 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." Ramsden, 214 F.3d at 870. Under these circumstances, the court held, "the interests in preventing possible relitigation [embodied in the Relitigation *650Exception to the Anti-Injunction Act] are . . . generally-outweighed by the heightened comity concerns except in the most extraordinary circumstances." Id. at 871.
¶ 31. The same concerns for federalism and comity animate the question presented in this court. What measure of procedural respect do the state courts owe to federal court judgments? 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 of nonfinal circuit court orders denying qualified immunity to government officials. Arneson, 206 Wis. 2d at 229. The court concluded that a circuit court order rejecting a qualified immunity defense will always satisfy the first 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 irreparable injury. Id.; Wis. Stat. § 808.03(2)(a) and (b). As discussed by the majority, this conclusion was based on the fact that the individual and societal benefits of qualified immunity would largely be lost if immediate appeal were unavailable. Id. at 225-227.
¶ 33. The same is true in this context. The private litigant and the public at large share an 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 *651seriously 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 appeal an allegedly erroneous rejection of a preclusion defense based upon the federal court judgment. Unnecessary, repetitive litigation may be avoided by immediate interlocutory appeal. 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. But the individual judgment-holder's interests are not the only interests at stake. Broader systemic concerns are implicated here. A policy that provides the 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 Rams-den court said that, absent extraordinary circumstances, "Challenges to the correctness of a state *652court's determination as to the conclusive effect of a federal judgment must be pursued by way of appeal through the state-court system." Ramsden, 214 F.3d at 872, quoting Parsons Steel, 474 U.S. at 525. The court specifically noted the availability of interlocutory review under Wis. Stat. § 808.03(2) as a means of correcting a mistaken rejection of a preclusion defense based upon a federal court judgment. Id. at n.3.
¶ 38. We should demonstrate similar restraint and sensitivity to considerations of federal-state court comity by allowing automatic interlocutory appeal under these circumstances. 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 order that invariably met the criteria for discretionary review, and, therefore, the court of appeals should always grant review as a matter of course; 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 nonfinal order subject only to discretionary interlocutory review. Id. at 97a-b. The court cautioned, however, that the court of appeals should "be careful in exercising that *653discretion" because of the "serious constitutional questions raised by claims of double jeopardy." Id.
¶ 41. In a footnote to the per curiam opinion on reconsideration, the court declined, without explanation, to invoke its superintending authority to 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. Id. at 97d-98 (Abrahamson, J., concurring). As such, Jenich provides little analytical support for 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 to give preclusive effect to federal court judgments. 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. It is, however, detrimental to the relationship between the state and federal courts to deny the procedural protection of interlocutory appeal when a circuit court has declined, perhaps erroneously, to give preclusive effect to a federal court judgment. Accordingly, I respectfully dissent.
¶ 44. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.
28 U.S.C. § 2283 (1999).