Ref re Stare Decisis in the Court of Review 2026 SDSC 8
Question of Law - Stare Decisis in the Court of Review [2026] SDSC 8
| Date of judgment | 8th March 2026 | |
| Justices |
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| Held | The Court of Review operates on a horizontal stare decisis, similar to the Supreme Court | |
| Ruling | 3-1 | |
| Applicable precedent |
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MAJORITY OPINION by Justice Ivy Cactus
(with Chief Justice Ed and Justice Terak agreeing, and Justice TheLittleSparty dissenting without opinion)
Introduction
[1] Judge Muggy has sent a question of law to the court, asking whether former Court of Review judgments are binding on later Court of Review panels. This question is asked in the abstract, without any specifically attached case.
[2] The court received a number of amicus briefs from approximately every member of the Court of Review. Frustratingly, none of the esteemed judges seemed to agree with each other. Instead of idly wondering how such an operation hasn’t collapsed, the court will take their responses into consideration.
Questions at Hand
[3] There seems to be three options for how the Court of Review may interact with its own previous verdicts:
- [3.1] Previous findings could be binding on later panels, as a strict stare decisis (such as old Supreme Court verdicts relate to later inferior court deliberations), or,
- [3.2] Previous findings could be highly persuasive on later panels, as a strong horizontal stare decisis (such as old Supreme Court verdicts relate to later Supreme Court deliberations), or
- [3.3] Previous findings could be loosely persuasive on later panels, like inferior court verdicts are to superior courts, as a form of merely persuasive precedent (such as old trial court verdicts relate to later trial court deliberations).
[4] On top of this question, there are two more possibilities for how this would be applied to inferior courts attempting to apply said precedent, if the power is not strictly binding. Conflicts in precedent could be determined by either:
- [4.1] Deciding that the later finding overrules the previous, as it works when the Supreme Court overturns earlier precedent, or,
- [4.2] Recognizing that the two findings stand in conflict, forcing the Supreme Court to step in and clarify the issue.
Literature Review
[5] These options are not necessarily exhaustive or disjoint, so the law must be examined to get a feel for how the legislature wanted the Court of Review verdicts to be treated.
[6] Sadly, the Constitution is of little use. The only nod towards stare decisis is found in the Supreme Court section, which states, in rather stilted terms, that “[m]ajority opinions, judicial opinions supported by a majority of the Justices, shall be legally binding on inferior courts as precedent.” No such Constitutional provision exists for the inferior courts. There may still be more hints throughout the Inferior Court section, but such analysis will be struck off unless statutory law clarifies any points.
[7] For one, Article 8 of the Judiciary Act 2025 makes it clear that Court of Review verdicts are binding on “the Inferior Court.” This would seem, to a naive reader, to point towards option [3.1], as of course the Court of Review is among the inferior courts. Sadly, the Judiciary Act draws a distinction between the “Inferior Courts” and the “Inferior Court”, which would more properly be referred to as “trial courts.” While the Inferior Courts are composed of the Inferior Court and the Court of Review, the Inferior Court is just the trial courts, the courts of first instance for Criminal and Civil cases. As such, this section merely makes Court of Review precedent binding on the trial courts. This is somewhat helpful, but not an immediate answer to the questions at hand.
[8] Thankfully, there is more helpful language elsewhere in the Judiciary Act. Specifically, Article 7a lays out a process via which the Court of Review may hear an appeal of a verdict released by a previous panel. In explicit terms, it explains that the Court of Review may “quash or revise its own decisions” when acting en banc, along with exercising other normal appellate powers.
Reasoning
[9] With [8], it may seem that the Court of Review is explicitly within its powers to overturn previous Court of Review verdicts, at least in limited situations (i.e., following an appeal rejected by the Supreme Court). The question, then, is whether this can easily be extrapolated to other, less explicit cases.
[10] The court does not believe that it can, necessarily. The Judiciary Act explicitly empowers en banc panels, consisting of the Court of Review judges altogether, rather than any given three member panel, to quash and overturn prior decisions. It would seem that this power, to “quash” or “revise” prior verdicts is thus exercised by the Court of Review as a whole, rather than any given three judge panel.
[11] However, there is some question of whether limiting direct overturns of prior cases by a specific panel means that prior panels' reasoning is binding on future panels, as is generally the case in scenarios described in [3.1]. The court finds this hard to believe, in [7] it is written that Court of Review precedent is specifically binding on “the Inferior Court,” rather than “the inferior courts.” This is a clear case of expressio unius est exclusio alterius, or the idea that statute explicitly mentioning one item should, generally, be read as an exclusion of others (see: In re Writ of Prohibition — Lucas v Department of Justice [2025] SDSC 27 [11]). Given this, it would seem that Court of Review precedent is not binding on the Court of Review itself, which eliminates [3.1] as an option.
- [11.1] If one is struggling to understand the distinction between overturning a verdict and overturning reasoning, it may be helpful to think of the trial courts. No trial court can simply overturn another's verdict (e.g., change the verdict from guilty to not guilty) as the Court of Review may en banc. However, the trial courts can certainly overturn previous reasoning, as they do often.
[12] However, it still hasn’t been decided whether the Court of Review precedent should be understood under [3.2] or [3.3]
[13] With what has already been written in mind, the answer is pretty clear. The Court of Review is able to overturn precedent, but must it do so, or may two conflicting findings exist simultaneously?
[14] For Court of Review findings to be binding on lower courts, there must be some coherence within the system; it would not be possible for two disparate findings to be simultaneously binding on a lower court (or, should not be possible, of course, mistakes are occasionally made). As such, the Court of Review can not be a body where precedents are unrelated and separate, as if different circuits on a similar level. Instead, they must be treated as one continuous body, dictating precedent to a lower body. With this in mind, option [3.2] seems ideal.
- [14.1] It should be noted that in defining [3.2] and [3.3], the court placed a level of strictness on how binding previous precedent should be, from “highly persuasive” to “loosely persuasive”, respectively. The court would like to acknowledge that it is, of course, up to the Court of Review judges to make such judgment calls. That dichotomy is meant to represent attitudes, yes, but more so, it is meant to represent what kind of precedent relationship there is between old and new Court of Review panels. [3.2] represents a horizontal stare decisis upon the Court of Review, wherein there is a level of responsibility for maintaining coherence in the trial courts, versus [3.3] where no such responsibility exists across disparate peer panels. With this in mind, bad law is bad law; any body of such type will need to overturn itself at some point, the Supreme Court can only advise general restraint.
- [14.2] It should be further noted that this does not mean, per se, that the Court of Review can revisit and overturn the results of a previously decided case. In general, it should be understood that unless subject to explicit appeal, while reasoning can be overturned a specific conclusion of a given case should not be, as this runs into problems with res judicata. In general, this means that the “applicable precedent” can be overturned but specific holdings (i.e. in relation to outcomes for a particular case) should not be. Instead, the overturning of any given decision can only belong to a body empowered to hear an appeal or rehearing of it (in this case, the Supreme Court or the Court of Review en banc). It's certainly a complex issue, as there comes questions about how much time has to pass, or issues with rotating panels constantly overturning each other. The best the Supreme Court can offer, absent from legislative instruction, is that the Court of Review conduct itself as to impose fairness on trial court hearings and act with the general restraint expected of all judicial bodies.
[15] So, with question [3] answered, what of question [4]? With option [3.2] and the ability of the Court of Review to overturn previous precedent in mind, it must be [4.1]. The trial courts are bound by the most recent ruling by a Court of Review panel (unless, of course, said precedent is overturned by the Supreme Court). There is no need for the Supreme Court to step in and adjudicate every such issue.
Verdict
[16] Court of Review panels may overturn prior Court of Review precedent, and the newer finding is binding on the trial courts.
Post Script
[17] As pointed out in [14.2], this is a complicated issue that deserves to be hammered out in a more political, results oriented sense than the Supreme Court is within its bounds to instill based on a pure analysis of standing law. Given that this issue has direct consequences to the Court of Review, a judge of which posed it, the court is working on the understanding that this is important, if not necessary, to answer now. Mayhaps, with the current scenario laid out in this verdict, the Senate and Court of Review can hash out how to change the law to better reflect the battlefield absent the fog of war.
[16] To build on this, there’s some question to what extent panels of the Court of Review should be treated as representative of said body, or mere parts of it (the way different circuit courts in the US are all parts of the “federal courts”). This is, again, something of a legislative question. The court in this case treats it like the former, because that is the most coherent position, but it certainly could be the latter.
[17] Justice Britz was unable to take part in these proceedings due to current military service.