Dominax273 (Appellant) v SD (Respondent) 2025 SDCR 1
dominax273 (Appellant) v State of SimDemocracy (Respondent) [2025] SDCR 1
| Date | 10th October 2025 |
| Judges |
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| Held |
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| Ruling | 3-0 in part, 2-1 in part |
| Applicable precedent |
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MAJORITY OPINION by Judge ppatpat
(With Judge Terak agreeing in full and Chief Judge Benbookworm agreeing except for [3-6])
Introduction
[1] In dominax273 (Appellant) v State of SimDemocracy (Respondent) [2025] SDCR 1, the appellant challenges the decision of the inferior court in SD v dominax273 [2025] Crim 7, which found dominax273 guilty of violating Article 53a of the Criminal Code 2020<ref name="cc53a">At the time of the original judgment, the law criminalizing hate speech was Article 53a, but it is now Article 56a. Much of the consequential language remains the same; any differences will be noted within. </ref> by using racially charged language on a public platform governed by Discord’s Terms of Service.
[2] The appellant does not deny the use of the language, but argues that
- (a) the speech was constitutionally protected under Article 12§3 and 3.1<ref name="con1218">The freedom of speech was protected under Article 12, but has been renumbered to Article 18. All relevant provisions remain identical.</ref>.
- (b) the charge was based on domestic law, not platform rules, and thus should be assessed solely under constitutional protections.
On the jurisdiction of this court
[3] The Court of Review is the “court of first instance for appeals”. That status is affirmed by the Judiciary Act 2025, which grants us appellate jurisdiction over all matters within the Inferior Court's constitutional remit. As such, we are not bound by the binding precedent in State of SimDemocracy v Crimsonexus [2025] SDSC 7 [21-22].
[4] Specifically, the Article 3§1 of the Judiciary Act 2025 provides: “The Court of Review shall have appellate and continuing jurisdiction over all matters to which the Inferior Court has jurisdiction under the Constitution.
[5] This language establishes that our Court is the first appellate body, and therefore functions as the court of first instance for appeals. This is further backed up by Brandmal, ex parte State of SimDemocracy (Appellant) v Birdish (Respondent) [2025] SDCR 5 which found that the Inferior Court does not have appellate jurisdiction over itself.
[6] As such, we are not limited by arguments brought before the trial court. Petitioners may bring forth novel arguments that the initial proceedings did not cover.
On the supremacy of the Terms of Service
[7] In In re Restraining Order Act [2019] SDSC 1 [16] (In re ROA), the Supreme Court held unambiguously: “Discord and Reddit Terms of Service (ToS) are a higher law than the Constitution.”
[8] This precedent is not symbolic. It reflects a structural fact: SimDemocracy exists within privately governed digital territories—namely Reddit and Discord—whose continued operation is contingent upon adherence to those platforms’ Terms of Service and to the laws of physical jurisdictions.
[9] The Constitution does not create Reddit. It governs only within Reddit. And it does so under the license of the platform, not in supremacy over it. Likewise within Discord.
[10] Thus, where a conflict arises between constitutional free expression and platform restrictions, the ToS prevail. This is not a degradation of constitutional authority but a recognition that constitutional governance is contractually and practically subordinate to platform governance and to real life laws.
[11] When the Constitution says that speech is protected, it means protected within the scope of allowed speech. But the outer boundary of allowed speech is drawn by the platform’s ToS.
[12] Accordingly, no constitutional right exists to speech that violates Terms of Service. The State cannot protect what the platform prohibits.
[13] The petitioner also contends that, because dominax273 was not charged with a Terms of Service violation, but with an offense under the Criminal Code, the matter should be adjudicated solely under the Constitution of SimDemocracy, free from ToS influence.
[14] The court disagrees. While it is true that dominax273 was charged under the Criminal Code, the conduct forming the basis of that charge occurred within a jurisdiction that is contractually governed by platform Terms of Service. The distinction between “in-game” and “platform” actions is illusory.
- [14.1] ToS supremacy has to stand. The structural reality of our system is that we are not a sovereign state, and our Constitution is not a law unto itself. It is a rulebook we wrote and adopted under the permission of others—namely, Discord and Reddit. It governs only what it is allowed to govern.
- [14.2] Every citizen of SimDemocracy—indeed, every user of the platform—has entered into a voluntary, private agreement with Discord or Reddit by creating an account. This is not conjecture; it is a fact of use. The Terms of Service are not a suggestion. They are a contract, and no one participates here without signing it—explicitly or implicitly—upon entry.
[15] SimDemocracy does not exist outside of Reddit and Discord. These platforms are not metaphorical territory; they are literal digital jurisdictions. All criminal conduct prosecuted by this State—unless committed in an abstract vacuum—occurs within and under the rules set by these platforms.
[16] The Constitution, while supreme within SimDemocracy’s internal legal order, is subordinate to the foundational agreements that permit the State to function at all. These agreements are the Terms of Service. A user who posts within SimDemocracy does so under both constitutional and ToS authority, but the ToS sets the outer boundary of permissible conduct.
- [16.1] The respondent phrased this by referencing Kelsen’s Pyramid of Law. While the Constitution of SimDemocracy is very near the top, the Terms of Service are the pinnacle. To hold that the Constitution may violate a platform’s Terms of Service is to risk being de-platformed and threatens the very existence of SimDemocracy.
Trials within the context of the Terms of Service
[17] The petitioner's second concern is that accepting ToS supremacy renders trials meaningless. This raises a critical, albeit misguided, point about the nature of constitutional rights. It is true that trials are meant to guarantee procedural fairness and protect fundamental liberties. However, not all procedural guarantees extend to conduct that falls outside constitutional protection.
[18] To draw an analogy: an individual standing in a private home cannot invoke the Constitution to override the homeowner’s rules. If the homeowner says, “No shouting,” and the individual shouts, they may be asked to leave—not because their rights were ignored, but because those rights do not extend into private space without consent. So it is here, SimDemocracy operates within the metaphorical homes that platforms have provided.
[19] The purpose of a trial in SimDemocracy is to determine whether a user, within the overlapping bounds of the Constitution and platform law, has committed an offense. The ToS defines the permissible scope of expression. If a user’s speech lies beyond that scope, then freedom of expression protections do not apply, just as one cannot claim a speech right in a forum where speech is expressly disallowed.
[20] This does not render trials a formality. Rather, it ensures that trials respect both the rule of law and the rule of jurisdiction. The trial of dominax273 was constitutionally valid precisely because it applied domestic law within the limits set by the platform’s higher legal framework.
- [20.1] A trial is the very place where a person can defend themselves against a potentially mistaken or misapplied Terms of Service allegation, in open court, with argument, evidence, and reason. The petitioner errs in suggesting that judicial enforcement of platform rules amounts to abdication of our own constitutional framework. It is quite the opposite. It is through the institution of trial that SimDemocracy reaffirms its commitment to ordered liberty and the rule of law. When we hear such cases, we do not discard our constitutional values; we elevate them.
- [20.2] Every user is entitled to defend themselves. That is the strength of our system. But where a user does, in fact, violate the Terms of Service, and where the evidence supports that conclusion beyond the requisite legal standard, a court may find accordingly.
Equality before the law and the place of reclaimed language
[21] Finally, we acknowledge the petitioner’s invocation of equality before the law, and the comparison to rights such as the presumption of innocence and right to counsel. These rights are indeed foundational. However, there is a crucial distinction to make — they do not entitle an individual to a substantive defense of actions that cannot be constitutionally protected in the first place.
[22] In short, when the platform revokes protection, the Constitution may no longer shield the conduct. A trial may still occur, but its outcome must respect that certain categories of speech are simply outside the legal realm in which rights like the freedom of speech can be invoked.
[23] There has been substantial discourse on the position of hate speech, especially with respect to the Terms of Service allowing for reclaimed language. The court finds it prudent to address these arguments in full, given some may posit that the current regime is an unequal enforcement of the Terms of Service.
[24] Numerous individuals have argued that even under the platform’s Terms of Service, reclaimed speech, such as a Black individual using historically racist language in a political or cultural context, is not explicitly proscribed by the platform. They may assert that platform policy allows nuance, and thus the State ought to as well.
[25] Here is where we must turn to the very nature of SimDemocracy. As an anonymized, pseudonymous, and text-based platform operating within private digital infrastructure, it does not possess the lawful tools, nor the ethical mandate, to verify a user’s racial, ethnic, national, or cultural identity. Nor would such a check comply with other laws and rules protecting one's privacy in online discourse and within SimDemocracy, as they would lead to inevitable doxxing of users in Court. One injustice may not be fought with another.
[26] Under the regime proposed by those who advocate for the theory of reclaimed speech, defendants could assert that they are a Black man using the “n-word” in a reclaimed, non-racist way. However, to treat this assertion as legally dispositive would require the courts to recognize self-asserted identity without evidence—or worse, to seek proof of racial or cultural identity through means that would be equivalent to doxxing.
[27] This Court emphatically rejects the idea that racial verification—whether by user admission, reputation, or investigative techniques—can or should form any part of the criminal process. The Constitution, particularly in the right to privacy and the right to liberty and security of the person, forbids such intrusion.
[28] Racial identity is inherently complex, multifaceted, and often deeply personal. This court shall not establish a jurisprudence that requires or even permits fact-finders to infer race from patterns of speech, name choice, emoji use, or secondhand character references. To do so would invite stereotyping, misattribution, and judicial bias, all under the guise of identity assessment. This would be an invitation to arbitrariness—a jurisprudence of assumption rather than evidence.
[29] Nor can the State be allowed to seek verification by extra-legal means. Any attempt to compel or encourage disclosure of real-world racial or cultural identity—whether by judicial order, investigative pressure, or evidentiary implication—would constitute doxxing or a prelude to doxxing, in violation of the constitutional right to privacy (numbered Article 13 then, Article 19 now), which mandates that users be free from intrusive collection of personal data.
[30] Political simulations are founded on the idea that individuals may fully participate in public life—debate, govern, and adjudicate—without disclosing their real-world identity. This legal order must not compromise that premise to allow certain speech defenses that rely on unverifiable personal characteristics.
[31] Were this Court to accept identity-based defences requiring racial verification, it would create a two-tiered justice system: one in which those who can credibly claim a protected identity enjoy broader speech rights, and another in which those who cannot are judged under stricter standards. This would undermine both equality before the law and equal protection of constitutional rights.
[32] No defense in law may rely on unverifiable characteristics. The legal system must evaluate speech based on its content, context, intent, and effect, not on the presumed identity of the speaker. Anything else would destabilize the neutrality and fairness of criminal justice in a pseudonymous society.
On the verifiability of racial identity
[33] It is sometimes suggested, implicitly or explicitly, that racial identity might be proven through voluntary disclosure, such as sending an image of oneself to a moderator or judge, or asking a friend to confirm one’s identity. In the present case, the appellant did not do so, but the possibility warrants response. As such, by this logic, reclaimed language under the ToS should be allowed, with this serving as verification.
[34] This Court rejects such a regime. First, such a system would be inherently abusable. Nothing prevents a user from submitting an image of another individual, or from asking a friend to pose in their place. Even with metadata or timestamps, such submissions are trivially falsifiable and fundamentally unverifiable within SimDemocracy’s legal infrastructure.
[35] Second, this opens the door to selective enforcement and a discriminatory double standard: users who can convincingly perform or imitate a particular identity may receive more lenient legal treatment than those who cannot. The Constitution demands equality before the law, not performance-based exemptions from it.
[36] Thirdly, allowing adjudication based on identity disclosures would incentivize users to dox themselves or others, either voluntarily or under perceived pressure to avoid conviction.
[37] Finally, the adoption of such a framework would corrupt the trial process itself. Trials would devolve into contests over credibility of unverifiable identity claims. Courts would be forced to assess the “authenticity” of racial performance, an act for which they are neither institutionally equipped nor ethically authorised.
[38] The dignity of the individual is not served when a user is compelled to disclose their identity to justify their words. Nor is it served when courts begin ranking the credibility of cultural or racial self-presentation. Our constitutional system, as fragile, limited, and text-based as it is, does not rest on trust in any particular identity. It rests on uniform application of law, regardless of identity.
[39] Accordingly, we reaffirm that any doctrine of reclaimed speech through self-identification cannot be entertained under current law.
- [39.1] Further accepting unverifiable self-identifications as evidence in court creates the risk of undermining the judicial process by creating an element of expressive conduct that can be used by any party to run afoul of the laws even if they indeed are not covered by the group they might claim to belong to, with the court simply never being able to verify such. This Court recognises the basic human ability to lie.
On the Constitutionality of Article 53a/56a §2 of the Criminal Code 2020
[40] The appellant challenges Article 53a §2 of the Criminal Code 2020 on the basis that it creates an unconstitutional rebuttable presumption of guilt. The provision states that “a person shall always be considered as submitting, posting, or relaying speech that is upsetting, demeaning, or humiliating about a person’s or a group of people’s protected characteristics if they…” use certain slurs. The appellant contends this contravenes the constitutional freedom of speech.
[41] While statutory or constitutional defenses may be used, under §2 slurs are definitionally hate speech, not merely presumed to be so. Then and now, slurs “shall always be considered” as hate speech under the Criminal Code.
- [41.1] SD v dominax273 [6] correctly holds that SimDemocracy may prohibit that which the Terms of Service permit, as has long been the case. The Terms of Service is not a bill of rights binding on hosted communities, it represents the outer bounds of what is permitted.
- [41.2] To summarize: if either the Terms of Service or SimDemocracy law prohibits something, then it is prohibited.
On the Interpretation of “Basis of Speech” in Article 12/18 §3 of the Constitution
[42] Upon questioning, the appellant advanced an argument that “basis of speech” in Article 18 §3 of the Constitution grants absolute protection to all speech, not merely speech falling within the definition of “free speech” or “freedom of expression.” This is presented as a claim that any criminal conviction that even references speech—regardless of its intent, effect, or context—is unconstitutional.
[43] In support, the appellant cites the structure of the text itself, which reads:
“§3. No criminal conviction or impeachment shall be made purely on the basis of speech and the exercising of free speech, barring cases where the exercising of such free speech violates or attempts to violate the constitutional rights of other citizens.”
[44] The appellant contends that the inclusion of both “speech” and “exercising of free speech” implies two distinct protections: one covering all speech, regardless of intent, and another protecting “free speech” in the constitutional sense. They interpret this to mean that even harmful or hate-based speech must be protected from legal sanction unless it rises to the level of violating another’s rights, and that presumptions of harm, such as those in Article 53a/56a §2, unlawfully sidestep this.
[45] This argument has no direct support in case law; the phrase “basis of speech” has not been (and should not be) litigated in isolation, and there is no binding precedent from either the Supreme Court or appellate courts interpreting this phrase as an absolute shield against legal scrutiny or evidentiary use of speech in criminal proceedings. In fact, there is precedent to the contrary from In re Appendix s1.7 of the Constitution [2020] SDSC 3 [32] saying that no right as a whole is absolute.
[46] This Court declines to adopt such an expansive interpretation. The phrase “purely on the basis of speech” must be understood in harmony with the Constitution’s structure and the common law of free expression.
[47] The courts have written a substantive and consistent body of work affirming that speech may be restricted where it violates or attempts to violate the constitutional rights of others. As the Supreme Court affirmed through In re ROA, speech may be restricted in ways that do not violate constitutional expression, provided such restrictions do not interfere with the fundamental nature of freedom of speech. That nature, as the Court described, is rooted in “a citizen’s right to freely express their political and religious beliefs.” Despite the appellant’s fervent and desperate wishes, In re ROA [14] makes it crystal clear that such freedom is not absolute; it is a qualified right.
[48] Furthermore, this Court rejects the interpretation that “basis of speech” and “free speech” are disjunctive and independently absolute. The clause must be read as a whole. “No criminal conviction… shall be made purely on the basis of speech and the exercising of free speech… (emphasis added)” does not mean that any prosecution involving speech is prohibited. It means that speech alone, absent harm to others' rights or constitutional values, cannot suffice as the sole ground for conviction.
[49] In short, speech can still form the factual basis of a charge when it crosses into criminal territory—such as harassment, incitement, or hate speech—so long as the law and the prosecution shows that the charge arises out of violating other’s constitutional rights, as required by Article 12/18 §3.1 of the Constitution.
[50] This Court reaffirms the framework of time, place, and manner restrictions, as reaffirmed in Ad Hoc Advocates LLP, ex parte adeacentpear [2025] SDSC 15 [11]. Such restrictions do not criminalize speech for its content alone, but regulate its method and impact. They do not violate freedom of expression but ensure its coexistence with order, equality, and the rights of others.
[51] Insofar as Article 53a/56a criminalizes conduct that is both speech-based and in violation of another’s rights, it survives constitutional scrutiny. The lower court did not err by proceeding to trial on that basis.
Verdict
[52] For the reasons above, it follows that the Court must uphold, and now indeed does uphold the verdict in SD v dominax273 [2025] Crim 7.
[53] Similarly, for the reasons above, it follows that the Court must hold, and now indeed does hold that Article 53a §2 of the Criminal Code 2020 at the time of SD v dominax273 [2025] Crim 7 was constitutional.
CONCURRING OPINION by Judge ppatpat
On Rebuttable Presumptions
[A1] I write separately to address the rebuttable presumption in section 6 of Article 53a, which the petitioner did not quote, and which the court chose not to address. I find it pertinent to articulate my thoughts on the constitutionality of the actual rebuttable presumption in use at the time of the trial.
[A2] The majority has felt it prudent to not address this issue, given the petitioner did not quote it directly. I find this to be reasonable, however, given how the central premise of the petitioner is simply “Are rebuttable presumptions in hate speech constitutional?”, I fail to see why we shouldn’t address such a related question.
[A3] If the principle of leniency in interpretation is to always interpret something in its most favourable light when possible, in this case, the question of whether the rebuttable presumption in section 6 is constitutional is a far greater question than section 3, given how moot and wrong the petitioner’s arguments are for section 3, as elucidated upon by the court earlier.
[A4] The argument is thus that any use of rebuttable presumptions is an unconstitutional rebuttable presumption of guilt. This argument misunderstands both the legal nature of rebuttable presumptions and the constitutional framework in which they operate. Article 53a §6, at the time of trial, did not impose strict liability nor does it establish an irrebuttable presumption of guilt. Rather, it operates as a prima facie evidentiary inference. This is a common feature in many legal systems, including SimDemocracy's own.
[A5] Under the version of Article 53a applicable at the time of trial, §6 provided that a person who submits, posts, or relays speech that is upsetting, demeaning, or humiliating about a protected characteristic “shall be rebuttably presumed to have done so with the intention to cause apprehension”. This is a true rebuttable presumption: it applies to the mens rea element of the offense (intention to cause apprehension under §1.2), not merely to the actus reus.
- [A5.1] It is critical to distinguish between the burden of production, which can shift to the defendant in specific statutory contexts, and the burden of persuasion, which must always remain on the prosecution.
- [A5.2] That obligation never shifts. A rebuttable presumption—such as that in Article 53a §2—does not relieve the prosecution of this duty. Article 2 of the Criminal Code (then and now) governs all burdens of proof in criminal proceedings. Article 2 §1 requires the prosecution to prove each element of an offense beyond a reasonable doubt. Article 2 §2 gives the accused the obligation of proving any defense or mitigating circumstance on the balance of probabilities, but Article 2 §2.1 then places back on the prosecution the obligation to disprove any defense successfully raised beyond a reasonable doubt. Article 2 §3 explicitly authorises rebuttable presumptions and sets their standard of rebuttal: “It may be rebutted on the balance of probabilities, unless otherwise specified.”
- [A5.3] In this framework, the burden of persuasion—the ultimate obligation to convince the court of guilt—always remains with the prosecution. The rebuttable presumption in §6 affects only the burden of production for the mens rea element. Once the prosecution shows that the defendant made speech meeting the actus reus, the statute allows the court to infer intent to cause apprehension unless the defendant produces evidence to the contrary on the balance of probabilities. If the defendant does so, Article 2 §2.1 requires the prosecution to disprove the defendant’s rebuttal beyond a reasonable doubt before convicting.
- [A5.4] This procedural device is constitutionally permissible because it does not compel the defendant to prove their innocence. It requires only that the defendant raise some evidence showing a plausible absence of intent. The presumption of innocence is preserved, because if the defendant’s rebuttal creates doubt, the State cannot convict unless it disproves that rebuttal beyond a reasonable doubt.
- [A5.5] In other words, §6 provides an evidentiary shortcut in recognition of the fact that the use of certain kinds of speech is overwhelmingly likely to indicate the requisite mental state. But it remains a rebuttable presumption; it does not function as an irrebuttable presumption or an automatic conviction. The prosecution still bears the ultimate burden to establish all elements of the crime—actus reus and mens rea alike—beyond a reasonable doubt once rebuttal evidence is presented.
[A6] Comparative jurisprudence, albeit purely persuasive, only bolsters this position. The European Court of Human Rights has consistently held that evidentiary presumptions in criminal law do not violate the right to a fair trial (Article 6 ECHR) so long as they are proportionate, rebuttable, and respect the principle of fairness (see Salabiaku v France (1988) 13 EHRR 379). SimDemocracy’s Constitution, while unique in its structure, draws from similar principles of proportionality and adversarial fairness.
[A7] Turning to the Constitution, which prohibits convictions “purely on the basis of speech,” the key word is purely. Article 53a/56a §2 does not mandate conviction on speech alone—it creates a triggering inference, but one that must be weighed alongside other elements such as context, effect, and mental state. The statute’s presumption is rebuttable, and proportional.
[A8] Article 12/18 §3.1 adds that speech may be restricted only if it causes “harm or serious distress,” and is “intentional or reckless”. The presumption in Article 53a/56a §2 is compatible with this provision because it operates as an evidentiary bridge—helping courts infer recklessness or intent where certain high-impact words are used—not as a substitute for proof of mental state.
[A9] To hold that any statutory presumption is unconstitutional simply because it flows from speech would be to render criminal enforcement practically impossible in speech-based offenses. It would mean that courts could not even infer probable effect or culpability from repeated use of slurs—an interpretation that would paralyse hate speech enforcement and ignore the textual allowance in the Constitution for restricting speech that infringes others’ rights.
[A10] Therefore, for the reasons above, I concur.
CONCURRING OPINION by Judge Terak
On speech as the basis for a criminal conviction
[B1] The Appellant put forth that speech may never serve as the basis for a criminal conviction. While I believe the Court in its majority opinion has already greatly explored that question, I find it important to add a further legal theory to justify the invalidity of such a claim.
[B2] Article 22 §1 of the Constitution establishes a very broad protection for everybody, the constitutional legislator choosing to extend the protection to “every person”, meaning it even covers people that are not in the SimDemocracy Territories or citizens of SimDemocracy. In it the liberty and security of a person are guaranteed. While this mostly relates to the relation between the state and its citizens. The Systematic view of the highlight put at the very beginning of the Article makes it necessary to see it more broadly. The textual language does not provide for a limitation only to the State.
[B3] How can language interfere with a person's liberty and security? Wherever a person makes a statement interacting with another person they may conduct the conversation in such a manner that they violate the liberty of a person, for example by revealing their personal information (e.a. Doxxing them) thus depriving them of the liberty to control their information and violating their real life security by exposing them to harm suffered through malicious actors using this information. This theoretical figure could be expanded. Hateful speech could cause a person real psychological harm and many other permutations are imaginable.
[B4] The constitutional article is not meant to interact directly with speech by users. Instead its fundamental doctrine finds expression in other laws, mainly the Criminal Code, to protect users from suffering harm, for example by having their private information exposed.
[B5] This now interacts with the claim of the Appellant that all speech is exempt from criminal prosecution. Given the constitution provides for a broad claim of every user's right to liberty and safety, a claim these have been violated (as expressed through a violation of the criminal code), necessarily trigger the part of the article protecting speech, that clarifies, no such protection exists where another user's rights are violated. Given such a violation occurred with a violation of the criminal code, the argument that the speech was protected needs to fold under the violation of constitutional rights.
PARTIAL DISSENTING OPINION by Judge Benbookworm
On the appellate jurisdiction of the court
[C1] At the time of the trial, Article 53a§6 of the Criminal Code 2020 included a rebuttable presumption of intention to distinguish between first and second degree hate speech. (The two degrees were subsequently collapsed together by the Anti-Hate Speech Amendment 2025.) However, the respondent astutely noted that such was not addressed by the appellant, nor in the original judgment, nor in the trial arguments.
[C2] While not addressing this section in the judgment, the majority nevertheless decided to assert their jurisdiction to be greater than the Supreme Court, without explaining that the discussion on rebuttable presumptions is what led to it. While the majority agreed on jurisdiction, the concurrence of Judge ppatpat stands alone on why it was brought up.
[C3] Per binding precedent from State of SimDemocracy (Appellant) v Crimsonexus (Respondent) [2025] SDSC 7 [21-22] it is not our place to evaluate appellate matters not ruled on by the trial court. There is no such thing as a “court of first instance for the purpose of appeals”, rather the Supreme Court was saying that when it serves in an appellate function, it is not a court of first instance. This applies the same to the Court of Review. We are not the court of first instance when hearing appeals.
[C4] When the court considers appellate matters not raised in the trial court, it is ultra vires under binding Supreme Court precedent. In common law terms, that argument was waived. Regarding the jurisdiction in [3-6], I dissent.
REFUSAL TO RECUSE by Chief Judge Benbookworm and Judge ppatpat
[R1] On the eve of this judgment being released, the newly hired Deputy Attorney General filed a motion to recuse Chief Judge Benbookworm and Judge ppatpat from this case on account of us being co-counsels for the appellant in Dominax273, et al. v SD 2025 Civ 19 (Civ 19), and that our rulings on this case could have direct and tangible effects on the aforementioned case in that trial court.
[R2] We turn to a very similar motion for recusal from CRB v Redshore Casino [2025] Civ 20, wherein Judge Heinrich ruled that Benbookworm could remain as the presiding judge. The plaintiffs there brought the motion for recusal over the very same Civ 19, which has been ongoing for nearly two months.
[R3] Like how Judge Heinrich determined that a suit over Supreme Court delays was unrelated to enforcement actions taken by the Treasury, so here is that suit over Supreme Court delays unrelated to the merits of this appellant’s convictions. In fact, the arguments in Civ 19 have constantly reiterated that the suit is not over the merits, but rather over the filing never being heard.
[R4] Any precedent here is wholly unrelated to Civ 19. A reasonable person could not point to the “direct and tangible effects” that the Deputy Attorney General alleges without supporting.
[R5] The motion to recuse is denied. As with all matters of law, this may be appealed to the Supreme Court.
Footnotes
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