In re TCAA 3 and Criminal Code 51 2026 SDSC 12
State of SimDemocracy (Appellant) In re Article 3 of the Terrorist Connected Accounts Act and Article 51 of the Criminal Code [2026] SDSC 12
| Date of judgment | 16th April 2026 |
| Judges |
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| Held |
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| Ruling | 4-1 |
| Applicable precedent |
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MAJORITY OPINION by Justice Ivy Cactus
(with Chief Justice Ed, Justice Terak, and Justice Muggy agreeing and Justice TheLittleSparty dissenting without opinion)
Introduction
[1] The State, as represented by Palmer, is seeking a limited review of the majority opinion by the Court of Review in In re Article 3 of the Terrorist Connected Accounts Act and Article 51 of the Criminal Code [2026] SDCR 33, specifically regarding its parsing of Article 51, Division 1, Section 1 of the Criminal Code 2020. They request that the Court of Review’s interpretation be overturned.
[2] Initially this case was being appealed by State Attorney Palmer in a private capacity, before the Attorney General confirmed that the State would back his position. It is a bit odd, indeed, for the State to request an appeal of a case it, on paper, won. However, considering the State’s vested interest in criminal law being interpreted correctly (due to the detrimental effect of later appeal on the State’s operations), the court saw fit to hear the appeal.
[3] The State, at the beginning of argumentation, requested an injunction on any inferior court using the interpretation set by the Court of Review while hearing Terrorist Conspiracy cases. The court is quite skeptical that this is a preliminary remedy that is reasonable to grant, it would certainly be an extraordinary use of the Supreme Court’s extremely broad powers to ensure fair judicial remedies. It is odd, to say the least, to not only suspend the effects of a binding judgement upon the trial courts, but to also explicitly disallow them from following an interpretation without a higher authority pointing to another, correct, interpretation. With this said, the court chose not to make any specific ruling at this time, and instead declined to grant said injunction on practical grounds, given that no charges in court or pending proceedings are being charged under Division 1 (with such charges unlikely in the future, due to Division 2’s broader leeway).
[4] As the State was both the beneficiary of the Court of Review’s ruling, as well as the appellant, the Supreme Court requested that the Court of Review judges in the majority respond themselves, a task taken up by Judge notcommunnist366.
Literature Review
[5] The court, given how grammatical this argument is, sees it fit to give an index of sorts for reference throughout the verdict.
[6] Criminal Code Article 51, Division 1, Section 1, reads:
“A person engages in terrorist conspiracy if they commit terrorism against the individual as described in the Terrorist Connection Accounts Act, Article 1: Terrorism Against The Individual, is a member and supporter of a terrorist organization as described in the Terrorist Connection Accounts Act, Article 2: Terrorist Organizations, or meets the standards for committing terrorism or being a terrorist under any other law.”
[7] The Court of Review, in In re Article 3 of the Terrorist Connected Accounts Act and Article 51 of the Criminal Code [2026] SDCR 33 [15], interpreted the relevant section as such:
“Given the existence of the multiple or’s within this sentence, it is clear that the article itself separates independent reasons for conviction by or. That alone shows that to convict based on division 1 of terrorist conspiracy, there are multiple criteria, namely Engaging in Terrorism against the Individual as defined in Article 1 of TCAA and being both a member and supporter of a terrorist organisation as defined by Article 2 of TCAA, or meeting the standards for terrorism or being a terrorist under any other law. This alone is enough reasoning, but there is more.”
[8] In SD v Juliana [2025] Crim 87 [17], Judge ppatpat stated:
“Under Article 51 of the Criminal Code 2020, a person commits Terrorist Conspiracy if they: Commit terrorism as defined in Article 1 of the Terrorist Connected Accounts Act; Are a member and supporter of a terrorist organisation as defined in Article 2 of the Terrorist Connected Accounts, or; If they meet the standards for terrorism under any other law.”
Summary of the Appellant’s Argumentation
[9] The Appellant makes the simple argument that the Court of Review used incorrect grammar and diverged from “plain English and prior case law,” in making its ruling.
[10] To support this point, they cite SD v Pretzel [2025] Crim 80 and SD v Juliana [2025] Crim 87, both of which disagree with the assessment of the Court of Review. These were appealed to the Supreme Court and remanded on sentencing alone, which the appellant says gives credence to the idea that their interpretations are supported by prior Supreme Court case law. That is, the State thinks the Supreme Court would have overturned them, if they had thought it necessary.
Summary of the Response
[11] The respondent declined to make argumentation in support of their review, and instead chose to make an extended argument that reasoned that if the section was not interpreted in the way the Court of Review laid out, then it is “100%, without a doubt unconstitutional.”
[12] They support this by pointing to Judge Brandmal’s dissent on the original case itself, where he declines to take the view purported by the majority in [15], and concludes that the section is unconstitutional.
Grammatical Analysis
[12] Before considering the respondent’s argument in [11], the court must first determine whether the textualist, grammatical, reading of the law aligns with the Court of Review in In re Article 3 of the Terrorist Connected Accounts Act and Article 51 of the Criminal Code [2026] SDCR 33, or with the State’s interpretation.
[13] As seen in [6], the section itself is rather complicated. However, the authors gave us some helpful tools in order to parse the meaning. The first step in this lexical analysis is to split the statement into tokens along each conjunction and comma:
- 1. A person engages in terrorist conspiracy if they commit terrorism against the individual as described in the Terrorist Connection Accounts Act,
- 2. Article 1: Terrorism Against The Individual,
- 3. is a member and
- 4. supporter of a terrorist organization as described in the Terrorist Connection Accounts Act,
- 5. Article 2: Terrorist Organizations,
- 6. or meets the standards for committing terrorism or
- 7. being a terrorist under any other law.
[14] Once this is done, we need to start determining which commas are “list commas”, that is the ones that substitute in for a conjunction, versus “non-list commas”, which separate the text based on other criteria. In this case, we have two “introductory commas” (at the end of (1) and (4)), and one standard “list comma” (at the end of (2)), as well as one “oxford comma” (at the end of (5)). For now, we will ignore the oxford comma, and get the following items:
- 1. A person engages in terrorist conspiracy if they commit terrorism against the individual as described in the Terrorist Connection Accounts Act, Article 1: Terrorism Against The Individual,
- 2. is a member and
- 3. supporter of a terrorist organization as described in the Terrorist Connection Accounts Act, Article 2: Terrorist Organizations,
- 4. or meets the standards for committing terrorism or
- 5. being a terrorist under any other law.
[15] With that in mind, we turn back to the Oxford comma. Oxford commas are a bit grammatically special, in the sense that they work as a normal list comma would, but accompany a conjunction as well. They are particularly useful when listing items that may themselves have commas for other reasons, as in such cases a conjunction preceded by a comma signals the end of the list, whereas a conjunction that is not preceded by a comma is signaled to not separate items in the list. Therefore, we can use the knowledge that an oxford comma was included to conjoin items which are separated by a conjunction not preceded by a comma. With this in mind, we can parse the following structure out of the section:
- 1. A person engages in terrorist conspiracy if they commit terrorism against the individual as described in the Terrorist Connection Accounts Act, Article 1: Terrorism Against The Individual,
- 2. is a member and supporter of a terrorist organization as described in the Terrorist Connection Accounts Act, Article 2: Terrorist Organizations,
- 3. or meets the standards for committing terrorism or being a terrorist under any other law.
[16] This is, indeed, the structure supposed by both the State and Judge ppatpat in SD v Juliana [2025] Crim 87 [17]. Therefore, as far as a strictly textualist reading goes, the Court of Review erred in its decision.
[17] The same analysis, when applied to Judge Zepz’s concurrence, finds that he erred in his interpretation of Criminal Code Article 51, Division 1, Section 1, as well.
In re War and Peace and Constitutionally Favorable Interpretations
[18] With this in mind, the court must now address the respondent’s argument in [11]. That is, the idea that the section should be interpreted in a non-textualist manner in order to shore up its constitutionality.
[19] The respondent did not cite it, but this idea pulls upon precedent from In re War and Peace Act 2024 [2024] SDSC 1 [11]-[14], which asserts, in a somewhat indirect way, that the Supreme Court should, when possible, interpret a section to be Constitutionally compliant, even if said interpretation does not align with the straightforward implications of the provision.
[20] The issue, however, is that such a statement does not allow for a court to read a section to say what it doesn’t. Chief Justice Halfcat’s interpretation, whether one agrees with it or not, is dealing with interactions between two sections. That is, he read some vagueness into the sections and then chose the interpretation, among the vague readings, which allowed the section to be Constitutional.
[21] There is, however, no vagueness in how this section is written. For Halfcat’s technique to be applied there must be multiple readings supported by the text to choose from. That is not the case here, as proper English grammar only allows for one reading. Thus, the unconstitutionality of the provision does not come into play on its interpretation.
In Dubio Pro Reo and Its Limits
[22] Although the respondent didn’t bring it up, there is also the concept of “in dubio pro reo”. Which is the idea that any ambiguous law should be read in favor of the defendant when dealing with criminal law. In dubio pro reo is the concept that “[s]hould,..., ambiguity arise from a law, the courts are bound to interpret the statute in question in a way, most benefitting the accused party before the court,” (see: Question of Law - Contempt and the Right to a Fair Hearing [2026] SDSC 4 [19]).
[23] One may think, then, that the Court of Review’s interpretation, which places a higher standard on the State to prove, would prevail due to this principle. However, that line of argumentation runs into the same issue as [21]. The provision in question is in no way ambiguous, and therefore there is no “dubio” to use “pro reo.”
[24] This is all to say, the courts do, for sure, have tools in their disposal outside of mere textualist interpretation. There are the ones stated here, but also others such as Kingred (which, no, does not apply), which can be used under certain circumstances. However, as always, the textualist approach must be foremost and favored. When a court is seeking to take a different approach to reading the law, they ought to have a good specific reason. Sometimes, laws are just unconstitutional.
Remedy
[25] With that in mind, the court does not see it fit to do a full constitutional analysis of the case in this instance. The State sought a limited appeal of simply the statutory interpretation of Article 51. As such, this court was not briefed in full on the case at hand, nor did it hear argumentation in relation.
[26] Indeed, much like when a trial court misinterprets a section and it leads them to a possibly false conclusion, the best remedy is a remand. This allows the court most suited and prepared to analyze the issue another “swing” at it, and avoids excess unnecessary work for the much smaller Supreme Court.
Verdict
[27] The Court of Review erred in its interpretation of Criminal Code Article 51, Division 1, Section 1. As such, the verdict in In re Article 3 of the Terrorist Connected Accounts Act and Article 51 of the Criminal Code [2026] SDCR 33 is quashed and remanded back to the Court of Review for rehearing.