Mythrows (Appellant) v SD (Respondent) 2026 SDCR 45
Appeal of Non-Prosecution Agreement in SD v. Mythrows, [2026] Crim 21, [2026] SDCR 45
| Date | 22nd April 2026 |
| Judges |
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| Held |
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| Ruling | 3-0 |
| Applicable precedent |
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MAJORITY OPINION by Judge Mypenjustbroke
(with Judge Tech Support and Judge Zepz367 agreeing)
I
Introduction
[1] This matter comes to the Court of Review as a request for injunctive relief for a stay of proceedings and an interlocutory appeal of the Inferior Court’s rejection of a “Non-Prosecution Agreement.” Appellant Mythrows (hereinafter “Appellant”) contends that the Inferior Court, has erroneously ruled that the “Non-Prosecution Agreement” at controversy and described infra at [4]–[6]—hereinafter the “Deal”—was invalid under the Executive Departments Act 2025.
Issue and Standard of Review
[2] First, in determining the Inferior Court’s potential error, we must ask how both statute and Article 23, § 1.3, of the SimDemocracy Constitution apply to the Deal. Second, we are tasked with determining whether the Deal—as drafted, signed, and presented below—was valid or void. Third and finally, we must find whether to issue an injunction to enjoin the State from continuing its prosecution.
[3] To boot, we analyze the first and third issues de novo. For the second issue—upon the determination of the validity of the Deal—we examine whether the Inferior Court abused its discretion in voiding the Deal.
II
Statement of Specific and Undisputed Facts
[4] On the 14 April, 2026, the State of SimDemocracy filed a Criminal Complaint against Appellant Mythrows, alleging one count of First Degree Harassment under Article 56 of the Criminal Code. The matter was docketed in the Inferior Court as SD v. Mythrows, [2026] Crim 21.
[5] During pre-trial proceedings, counsel for Appellant corresponded by direct message with President Lunette. In the course of that exchange, Appellant’s counsel procured the President's signature upon a Google Document styled “Mythrows Contract” and subtitled “Non-Prosecution Agreement between Mythrows and State of SimDemocracy[.]” The Deal purports, in substance, the following terms:
- [5.1] Article 1 obligates the Department of Justice to refrain from arresting, prosecuting, or otherwise detaining Appellant for any conduct occurring prior to April 19th, 2026, and further to cease and drop the pending prosecution in [2026] Crim 21.
- [5.2] Article 1 § 3 correspondingly obligates Appellant to refrain from pursuing any civil claims arising out of the State's prosecutorial or detentional conduct against her.
- [5.3] Article 2 fixes the Deal's commencement at the time of signing and invokes Article 23 of the Constitution in restraint of the State's reneging thereupon.
- [5.4] Article 3 contains a severability clause. Article 4 contains mutual affirmations of capacity, the absence of duress, a waiver of any future claim to void the Deal, and a declaration that the agreement “shall be considered an ‘agreement’ under Article 23, § 1.3 of the constitution.”
[6] On the morning of 20 April, 2026, counsel for Appellant filed the Deal with the Inferior Court and moved that the pending prosecution be dropped pursuant thereto. The State refused to honor the Deal. In refusing, the State urged that the Deal was void for illegality—citing Civil Code 2025 Art 11, §§ 3.1, 3.4; Executive Documents Act 2025 Arts. 2, 8; and S.D. Const. Art. 7, § 3.2—and further characterized the agreement as “a pardon in all but name”. President Lunette, notwithstanding her signature of the prior evening, stated simply that she did “not confirm” the Deal, and Vice President Democracy-Foryou likewise withheld his assent.
III
On the Requested Injunction
[7] Before we considered the matter of the Deal’s validity, we considered whether to grant a temporary stay in proceedings of SD v. Mythrows, [2026] Crim 21, pending proceedings on this Deal question. We denied such injunction pursuant to the framework laid out in Ed (Appellant) v. State of SimDemocracy (Respondent), [2025] SDCR 12 [4].
[8] For there to be a legitimate purpose, the requested injunction cannot be more likely than not unlawful, as is the case when the filing is likely to be unsuccessful. See id. We see Appellant’s petition as lawful in this case, as it asks this Court to issue a stay of [2026] Crim 21.
[9] Next, the injunction must also be suitable to fulfill its purpose. See id. An interlocutory stay usually is meant to pause the below’s proceedings pending a question of law. This is so in this matter as well. For this reason, we find for this element.
[10] Third, there may not be another measure the Court or the applicant could implement, that has the same effect while having less negative consequences than an injunction. See id. The petition for injunctive relief asks this court to consider the injunction as a matter of necessity, as continuing proceedings—if the underlying question of law were to invalidate the Inferior Court’s ruling—would allow for unsound law to be considered by the Inferior Court. Because there is no other real measure for the petitioner to request in consideration of this underlying appeal, we found this element to be satisfied.
[11] Finally, the injunction must be appropriate. For an injunction to be appropriate, the injunction must either have a high likelihood of success, or the disadvantageous effects of not granting the injunction far outweigh the disadvantageous effects of granting the injunction when it objectively should not have been granted. See id. We do not find the injunction to be appropriate. We find against this element because, first, there is not a high likelihood of success. A high likelihood of success does not mean any likelihood of success. In fact, we weigh this “high likelihood” standard to be more than any balance of the probabilities; rather, we deem that such likelihood requires substantial evidence of a high likelihood of success which the Appellant has not proffered. Second, the disadvantageous effects of not granting the injunction do not far outweigh the effects of granting the injunction. Such effects tests require immediacy in their consideration. As such, these appropriateness considerations must “be weighed on a case by case basis by the legal authority making such a decision.” Birdish (Appellant) v SD (Respondent), [2025] SDCR 6, [10.4]). In this instance, we determine no overwhelmingly negative, immediate effect would outweigh any considerations by which we deny the injunction.
[12] For these reasons, the petition for a stay of proceedings in SD v. Mythrows, [2026] Crim 21 was denied.
IV
Considerations of Parties’ Argumentation
[13] Due to the contentious nature of both this and the below proceedings, this Court ordered a temporary adjournment of 36 hours for briefing. Upon returning, Respondent provided a brief to this Court that held its core and distilled arguments.
- [13.1] However, before Appellant was able to submit its brief, a rabbit made itself known to them, and they went out to make sure that the cats didn’t get to those little rabbits.<ref name="mice">Of Mice and Men</ref> All in all, we were left without Appellant’s brief. However, we did ascertain some substantial arguments from Appellant before its departure. This section examines and addresses each substantial argument in turn. Additionally, we examine and address the two amicus briefs submitted to this Court by the Assistant Deputy Attorney General and a State Attorney. The amici made many separate arguments as to this matter—with each one taking the position of the State. We thank the amici for their dedication to the development of the common law. With that said, we interweave our examination of such in our analysis on the briefs and further infra.
On the Pardon Argument
[14] The State may not perform any acts, whether Legislative, Executive, or Judicial, that act in contravention or contradiction to binding substantive, statutory, common, or constitutional law. See, e.g., Criminal Code 2020 Part 7. This is also seen in respect to the various instances of judicial review that we are called to perform. Quite logically, if the first sentence of this paragraph were not true, there would be no need for the check that necessitates the judiciary. If an agreement between the State and any other party is illegal in substance or procedure—as we see in multiple statutes (see, e.g., Executive Departments Act 2025 Art. 8—then the whole of the matter is void ab initio. This is pursuant to an esoteric yet providentially applicable axiom: one cannot do what they cannot do.
[15] To this end, the Respondent has aptly cited that a President cannot create or endorse a pardon for any person. In re Executive Orders 23 and 23-A, [2022] SDSC 1, [4]. In that case, the Supreme Court held that, even if the Constitution does not expressly disallow pardons within an executive measure or order, the lack of prohibition does not imply allowance for pardons, as the Executive Authority necessarily derives from the rights and allowances conveyed by the Constitution. The same problem, though with fewer wrinkles, presents itself today. The “Non-Prosecution Agreement” was—in effect—a pardon. Thus, both its endorsement and signature were unconstitutional.
On the Severability Argument
[16] Appellant contended that, even if we rule that the consideration involved within the Deal’s Article 1 is void, the severability clause within the Deal allows for continuation and legality of the “contract.” We reject this with vehemence. We recognize nominally that the voiding of one party’s obligations for reason of illegality terminates the necessary bilateral consideration in any purported contract. However, even if a severability provision allowed for the continuation of an agreement in light of such partial dissolution, then it would better suit the rotting remains of this Deal to act as an inter vivos gift,<ref name="vivos">An inter vivos gift is a gift between two living parties.</ref> to which Appellant would be the donor, and the gift itself would be the withholding of action. No matter the form the Deal takes here, though, the corpse of such would be nothing more than a promise to catch the wind.
On the Procedural Defects in the Deal
[17] The Executive Departments Act 2025 Art. 2, § 4.2, et seq. makes only a few allowances for the Department of Justice to terminate its prosecution of a case. We find from the trial record that none of those allowances were satisfied, as Respondent contends, in the signing of the Deal. On this alone, the Deal was illegal.
[18] But another problem with the Deal’s signature persists. First, the obvious scruple shows that the President’s signing of the Deal provided an assertion of Executive Authority to an illegitimate and illegal agreement. Moreover, the Executive Authority asserted here is patently inferior to that of legislative or judicial caliber. In signing, the President supplanted its authority in the place of a more eminently authorized portion of the Executive: the Department of Justice. See EDA Art. 2, §§ 1, 4. This is inappropriate in the context of In re Deputy Executive Officer Appointments, where the Supreme Court held that legislation may create a specific executive power within the broader constitutional sphere of the Presidency and assign it to a distinct officeholder, but higher officeholders “may not personally take up lower roles[,]” or supplant. In re Deputy Executive Officer Appointments, [2025] SDSC 28, [9.4]). As one amicus noted:
“This is not, in the strict sense, a case of cannibalisation, because no coordinate branch has here appropriated executive authority to itself. The Legislature did not purport to prosecute, decline prosecution, or compromise criminal liability; nor did the Judiciary assume such a function.”
However, the Legislature did—indeed—intentionally imbue the Department of Justice with the power to prosecute and defend on behalf of the State of SimDemocracy. No other portion of the Executive, by any measure, has been afforded such power at present. This includes the President. In no way, shape, or reasonable construction of the powers granted under either Article 5 or Article 32 of the Constitution may a President perform an ad hoc action to end prosecution without following relevant statutory procedures.
On the Applicability of Article 23
[19] Article 23 of our Constitution certainly applies to contracts between the State and private parties. However, contracts are only those agreements that the law gives a remedy. See, e.g., Civil Code 2025 Art. 11, § 1; see also Brian McCall, Chapter 1, Contracts: Modern Pacts (2d ed. 2025) (definition paraphrase provided in prior sentence). Illegality of an agreement within SimDemocracy acts as a rebuke to the law; however, to become a contract, such an illegal agreement would seek the remedial power of the law while simultaneously acting outside of it. Thus, as a fundamental matter of jurisdiction, the Constitution does not require the State to live up to purported debts that neither it nor the laws arising under it recognize with force. Thus, because this Deal is found illegal, not only was it void ab initio, but no contract existed at all. Hence, Article 23 does not apply.
The Answer
[20] The dispositive factor of this endeavor begins and ends with the determination of whether the Deal’s overarching premise of unequivocal pardon is either legal or illegal. Based on the reasons supra, we know the answer: definitively illegal and terribly unconstitutional. Knowing this, then, we bring four answers to the introductory issues:
- [20.1] The Deal acts as a unilateral pardon and is unconstitutional as such, pursuant to In re EO 23 and 23-A, [2022] SDSC 1, [4];
- [20.2] Article 23 of the SimDemocracy Constitution does not apply to the Deal in controversy;
- [20.3] The Deal is null and void ab initio; and
- [20.4] The Inferior Court did not abuse its discretion.
V
Verdict
[21] The decision of the Inferior Court in SD v. Mythrows, [2026] Crim 21, is affirmed.
Dicta
[22] Shout out to the clerks and registrars of the Court of Review.
CONCURRING OPINION by Judge Mypenjustbroke
[A1] I write separately to expand discussion that is otherwise outside the scope of the majority’s review. First, I write on the applicability of Article 23 of the Constitution to plea deals. Article 23 of the Constitution patently protects citizens from the reneging of contracts by the State, where a lawful contract was made between the State and either a private party or otherwise citizen. Relevantly, § 1.3 of the Article charges the government to think through its contracts in negotiation and bargaining, as the government “cannot void any agreement with a citizen without providing equivalent appropriate compensation.” S.D. Const. Art. 23, § 1.3.
[A2] Article 23’s prohibition is not a limited one; indeed, the State is barred necessarily from breaching any and all of its contracts between it and any private party. Thus, I view Article 23 as an umbrella provision, without which the whole of the citizenry’s ability to uphold its right to freely contract—even if those agreements and bargained-for exchanges are “bad” deals—would become nothing more than a wet and soggy napkin, begging to be ripped up by extrinsic powers.
[A3] In turn, one must examine how Article 23 applies to plea deals specifically. The original avenue was found in In re Granola ex parte Inthewasteland v. SD, [2025] SDSC 36, [9], where the Supreme Court held that a plea deal, with the Attorney General acting for the State, acts as “a contractual agreement with a citizen[.]” Under this school of thought, the State is “constitutionally obligated . . . to offer equivalent appropriate compensation” for any breach therein. In re Granola ex parte Inthewasteland v. SD, [2025] SDSC 36, [9]. However, the passage of Courtroom Procedures Act 2025 Article 9b since In re Granola abrogates its holding, as Article 9b, § 2.1, classifies any plea deal as an effective directed sentence. To wit, the preference of Article 9b proves convincing, as the statute necessarily creates a new standard for plea deals that the court in In re Granola did not possess. Therefore, the holding in In re Granola, contract principles, and—thus—Article 23 would not apply here.
[A4] Second, I write on the Appellant’s alleged defect in the The Regime Does Not Know Best Act 2026 (the “Regime Act” for purposes of brevity). Appellant argued in hearing that the application of the aforementioned statute was inappropriate because its signing—after passage by the Senate—was not posted on the Subreddit, thus defying the Subreddit Utilization Act 2026 (the “SUA”). In effect, Appellant felt that this defect invalidated the Regime Act. Appellant felt so strongly about this, that they filed a petition for judicial review with this Court. However, upon the events described supra at [13], Appellant withdrew their petition. What they asserted—despite how much it would have amounted to a collateral attack on the present case—presents two necessary questions: first, was the Regime Act valid, per the SUA, to amend the EDA in this case? And second, if the Regime Act was not valid, would our holding have changed? The answers to both, briefly, are varied in favor of our holding supra.
- [A5.1] First, the SUA is necessarily an intragovernmental rule. The Senate has the authority to issue rules upon the government, excepting the rules of the Supreme Court and effecting cannibalization of the Executive Authority or allowances. See S.D. Const. Art. 11, § 5; see generally In re War and Peace Act 2024, [2024] SDSC 1 (on the prohibition of Senatorial cannibalization of the Executive). This is an exercise of the Senate's Legislative function, which extends to laws “in all branches of legislation.” See S.D. Const. Art. 1, §§ 1, 2.2, 2.4; see also In re War and Peace Act 2024, [2024] SDSC 1, [25] (the Senate may legislate procedural checks on other branches); see In re Suspension of the EBAA Act, [2025] SDSC 26, [6]. However, these rules may only be internal in nature.
- [A5.2] Moreover, it is clear that the Senate may not purport to invalidate its own law except through explicit repeal. An effects test of the SUA—as seen in the Supreme Court’s proportionality framework—further confirms this, as the “unlawful conduct” here is simply a procedural defect, and the purported judicial remedy of implicitly denying the Senate’s legislative power for such a defect is vastly disproportionate. In re 38th Presidential and 38th Senatorial Elections, [2020] SDSC 10, [36]–[37]. The invalidation of a duly passed Act of the Senate for a procedural error—one that may be cured, to boot—not only constitutes a misunderstanding of how the Senate’s power manifests, but it would also cause the Senate to have the Judiciary usurp the Senate’s Legislative Power. Cf. In re Article 4 s5 of the Executive Act 2023, [2025] SDSC 9, [25]; see also Thegoldenfish v. SD, [2026] Civ 7, [3] (procedural matters defective under the SUA are curable).
- [A5.3] Second, our holding in this matter would very obviously not change, even if the Regime Act were to be invalidated through the aforementioned erroneous scheme. We affirmed the rejection of the “Non-Prosecution Agreement” supra for two reasons, each unrelated to the current dilemma. First, the agreement acted as a pardon in nature, in contravention to Constitutional grant. Second, the President’s signing of the agreement supplanted its authority for that of the rightful and statutorily specified Department of Justice—wherein we called this specific flavor of internal cannibalization “supplantation.” If the dispute on the Regime Act were defective in its substantive content, this issue may result in a different answer; however, the SUA’s curability makes this contention an unfortunate last gasp at viability.
- [A5.4] Any potential reading of the use of minor procedural issues as a means to derail an otherwise just opinion not only infantilizes the Judiciary’s ability to interpret the law, but it also would read out any form of substantive due process. If parties were able to leverage minor procedural defects in an effort to affect judgments in their favor—whether in law or fact—then the fundamental rights of the other party to fair trial, as guaranteed by Article 22 of the Constitution, would inextricably and unequivocally disappear. This would be terribly contradictory to the interests of justice.
[A6] In conclusion, these considerations were powerful enough for me to opine upon. However, because they were outside of the necessary scope of the majority, I concur.
DECISION ON ISSUANCE OF A STAY by Judge Mypenjustbroke
(with Judges Zepz367 and Tech Support agreeing in full)
Issued on 20 April 2026.
[S1] We consider here whether to grant a temporary stay to [2026] Crim 21, pending proceedings on the Deal question. We denied such injunction pursuant to the framework laid out in Ed (Appellant) v. State of SimDemocracy (Respondent), [2025] SDCR 12, [4]. Facts may be considered in the trial record.
[S2] For there to be a legitimate purpose, the requested injunction cannot be more likely than not unlawful, as is the case when the filing is likely to be unsuccessful. See id. We see Appellant’s petition as lawful in this case, as it asks this Court to issue a stay of SD v. Mythrows, [2026] Crim 21.
[S3] Next, the injunction must also be suitable to fulfill its purpose. See id. An interlocutory stay usually is meant to pause the below’s proceedings pending a question of law. This is so in this matter as well. For this reason, we find for this element.
[S4] Third, there may not be another measure the Court or the applicant could implement, that has the same effect while having less negative consequences than an injunction. See id. The petition for injunctive relief asks this court to consider the injunction as a matter of necessity, as continuing proceedings—if the underlying question of law were to invalidate the Inferior Court’s ruling—would allow for unsound law to be considered by the Inferior Court. Because there is no other real measure for the petitioner to request in consideration of this underlying appeal, we found this element to be satisfied.
[S5] Finally, the injunction must be appropriate. For an injunction to be appropriate, the injunction must either have a high likelihood of success, or the disadvantageous effects of not granting the injunction far outweigh the disadvantageous effects of granting the injunction when it objectively should not have been granted. See id. We do not find the injunction to be appropriate. We find against this element because, first, there is not a high likelihood of success. A high likelihood of success does not mean any likelihood of success. In fact, we weigh this “high likelihood” standard to be more than any balance of the probabilities; rather, because of the relatively slow-moving and non-permanent nature of the potential hardship that would be suffered without such (appeals, petitions, et cetera), we deem here that such likelihood requires substantial evidence of a high likelihood of success which the Appellant has not proffered. Second, the disadvantageous effects of not granting the injunction do not far outweigh the effects of granting the injunction. Such effects tests require immediacy in their consideration. As such, these appropriateness considerations must “be weighed on a case by case basis by the legal authority making such a decision.” Birdish (Appellant) v SD (Respondent), [2025] SDCR 6, [10.4]. In this instance, we determine no overwhelmingly negative, immediate effect would outweigh any considerations by which we deny the injunction.
[S6] For these reasons, the petition for a stay of proceedings in the below SD v. Mythrows, [2026] Crim 21 is denied.
References
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