SDCLU pro Mooklyn (Appellant) v SD (Respondent) 2026 SDCR 39
SimDemocracy Civil Liberties Union ex parte Mooklyn (Appellant) v SD (Respondent) [2023] Crim 1 [2026] SDCR 39
| Date | 13th 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 Chief Judge Matt Cheney and Judge Tech Support agreeing)
Introduction and Statement of Facts
[1] Mooklyn, the original defendant, was charged with one count of Conspiracy to Commit Harassment in the First Degree and one count of Terms of Service Violation arising from conduct investigated under Operation Last Call. The charge of conspiracy to commit harassment rested upon messages in which the defendant and co-conspirators discussed plans to target a SimDemocracy user known as "fallen." The charge of Terms of Service Violation rested upon the defendant's use of a racial slur.
[2] The matter was originally tried before Judge Yummy Turtle, who acquitted the defendant on both charges. On the conspiracy count, Judge Turtle held that the prosecution failed to prove that the defendant's stated intention to "annoy" the target would cause apprehension or social harm, reasoning that "the simple act of annoying someone does not necessarily mean that it will always cause social harm or give a feeling of apprehension." See SD v. Mooklyn (Remanded), [2023] Crim 1, [A2]. On the Terms of Service count, Judge Turtle held that the prosecution failed to prove beyond a reasonable doubt that the defendant's use of the word fell within the Community Guidelines' prohibition on hate speech, applying a three-part contextual framework of his own construction. See id. at [A4]–[A5].
[3] The State appealed to the Supreme Court. In State of SimDemocracy (Appellant) v. Mooklyn (Respondent), [2023] SDSC 7, Chief Justice Heath overturned the acquittals and remanded the case to the lower courts for a new ruling. The Supreme Court held that the remand did not violate the defendant's right against double jeopardy, as appeals are "continuations of the original case." See id. at [11]. The Court further held that the judiciary lacks the power to create new requirements for the prosecution's burden of proof and directed that the new ruling be based solely upon the evidence and argumentation from the original trial. See id. at [12]–[13], [16].
[4] On remand, Justice Halfcat issued the judgment now under appeal. The remanded court convicted the defendant on both counts. On the conspiracy charge, Justice Halfcat found that the defendant offered material assistance by stating, "I can certainly annoy him," in response to a call to harass the user fallen, and that the co-conspirators' stated goal to "end these fuckers" through "annoying them" satisfied the elements of first-degree harassment. See [2023] Crim 1, [15]–[16]. The court rejected the defendant's four defenses—that "annoy" meant peaceful existence, that the conspiracy was never carried out, that annoyance is not harassment, and that the defendant argued against harassment—finding each immaterial. See id. at [17]–[21].
[5] As to the sentence, Justice Halfcat imposed a six-month ban for the Terms of Service violation, finding the social harm "not excessive." See id. at [26]. For the conspiracy count, however, Justice Halfcat imposed a permanent ban, reasoning that "the purpose of the justice system is to prevent crime from occurring," that the defendant had "no respect" for the justice system, that the defendant "made plans to commit a crime before they were even unbanned," and that "[i]f the defendant, as a consequence of being in SimDemocracy[,] cannot help themselves from committing crimes, the Court has no choice but to remove them from SimDemocracy." See id. at [27]–[28]. The court itself noted the anomaly that the defendant was singled out while co-conspirators who "participated as much or more" went uncharged. See id. at [22].
[6] The defendant has served the permanent ban since the date of the remanded judgment. The Appellant, ex parte defendant, now seeks reversal of the conviction on the conspiracy count without retrial, arguing misapplication of the harassment statute, disproportionate sentencing, and unconstitutional prior restraint.
Disclaimer of Association
[7] Judge Mypenjustbroke has disclosed that he is a member of the SimDemocracy Civil Liberties Union. As such, he has commensurately disclaimed connection to proceedings within the SDCLU’s specific deliberations for this case—whether before or during these judicial proceedings—and he attests that he has not been influenced. Thus, he has not recused. In short, he doesn’t know anything about this case except what has been pled and argued, and he pledges impartiality.
Issue
[8] The issue before this court is patently stated as whether the Inferior Court erred in applying the Conspiracy and Harassment statutes. However, a more latent issue emerges upon argumentation. A preemptive issue as to lex mitior applies here, as Appellant’s theory relies extensively upon law that both this court and the Inferior Court issued after its ruling in [2023] Crim 1. We must examine this question first and foremost.
Standard of Review
[9] For appeal of [2023] Crim 1, we review whether the Inferior Court clearly erred in its application of the respective Conspiracy and Harassment statutes. As to the vitally preemptive question of lex mitior, we review such de novo.
Part II
What law applies?
[10] The principal question of this controversy lay further than the oft-focused-upon topsoil of argumentation. Rather, the bedrock question of the law-at-issue is assumed in every appeal, yet rarely enunciated. The Constitution of SimDemocracy secures that "[n]o person shall be guilty of a criminal offense on account of any act or omission which did not constitute a criminal offense at the time when it was committed[.]" S.D. Const. Art. 21, § 5. Clearly, no person shall be convicted of harassment by the lower standard of today if the act was performed three years prior to the enactment of that standard. By negative implication, then, no person should be exonerated by the same. In effect, the commission of an act lay subject to the law—both common and statutory—in a cross-section of the time it was performed.
[11] We carry this not as a resolution to a first impression before this Court; rather, we declare it as a matter of judicial common sense that every judge knows or should know. The liability or guiltlessness of a person’s act—whether civil or criminal—is tried based upon the application of the facts to the law of the time; this is true no matter the time or policy, as greater policy weighs toward the prior.
On Lex Mitior
[12] The Appellant frames its argument as a skyscraper of theory; yet, it is to be determined whether its foundational premise of the doctrine of lex mitior—or the doctrine of applying "more lenient law" after a change in such law<ref name="lexfoot"> "Lex mitior", Latin for "more lenient law," is a legal doctrine providing that when the law changes between the commission of a criminal offense and the final judgment, the more favorable law to the defendant should apply." from Legal Information Institute.</ref>—could apply here. Appellant partly placed its analysis of apprehension upon dragoncrxst. (Appellant) v. SD (Respondent), [2026] SDCR 30. However, such a case is instructive for the matter of lex mitior as well. In [2026] SDCR 30, we considered whether the law of harassment and apprehension supported the conviction upon evidence that did not all prove harassment and apprehension. In argumentation, that appellant contended that lex mitior precluded this Court from applying the respective statute as it laid at the original conviction. In turn, after examination of evidence, we returned that—regardless of whether the doctrine existed in that instant forum—the evidence and argumentation failed to show the Inferior Court’s error. See [2026] SDCR 30, [9]. Thus, we effectively "kicked the can down the road" in proper judicial fashion. We resolve this dispute today.
[13] In dragoncrxst., we notice that the criminal trial took five months to adjudicate. Within that time, the definition of harassment changed. Lex mitior only applies in such cases, where the specific offense has changed during adjudication. In jurisdictions which apply lex mitior, the more lenient definition of a crime must be considered "the" definition of the crime. In that case, though, we held that—whatever the doctrine—the conviction would remain constant. See id.
[14] In cases where the definition remained the same in trial, however, we refuse to apply lex mitior on appeal. The letter of the doctrine—in conjunction with the policy of upholding the will of the legislature after it affects a change in substantive law—heavily favors only using law—common or statutory—that governed at the time of the action or offense.
Does law ever retrospectively apply?
[15] There arises a possible hole within this prior analysis, wherein appeals may arise after subsequent decisions in the same law—seeking benefit based upon that analysis. We recognize this, and we understand that such is proper, as the predictability of the law is balanced upon the vying of those deprived of liberties by the ever-evolving law of the time. But the limit is just that: there must be substantial similarity and privity between the laws and doctrines analyzed in such an appeal. In the instant matter, there is none. Thus, we only apply those statutes and that common law that were available and substantially similar to the underlying matter.
[16] We are not ignorant of the argument that Art. 21, § 5, of the Constitution runs in one direction—that its protections accrue to the accused, and its silence on the inverse implies no prohibition against retroactive lenity. We reject this for two reasons. First, the text secures that no person shall be guilty of an offense that did not constitute one "at the time when it was committed," and that no heavier penalty shall be imposed than that which "was applicable at the time when the criminal offense was committed." The operative phrase "at the time" fixes the entire evaluative frame to the moment of commission; it does not selectively fix only those outcomes unfavorable to the accused. To read it otherwise would be to hold that the cross-section of law applicable to an act shifts depending on which party benefits—a proposition antithetical to the equal and predictable application of law. Second, and more fundamentally, when the Senate amends a statute prospectively—without provision for retroactive application—it exercises its legislative prerogative to determine when that change takes effect. For this Court to retroactively apply such a change, favorable or otherwise, would be to substitute our own judgment for that of the legislature as to the temporal reach of its enactments. We decline to do so.
[17] As to the limit we articulated above—that subsequent developments in substantially similar and privy law may properly inform an appeal—we find no such connection in the instant matter. The authorities upon which Appellant principally relies—dragoncrxst. (Appellant) v. SD (Respondent), [2026] SDCR 30 on the standard of apprehension and Birdish (Appellant) v. State of SimDemocracy (Respondent), [2025] SDCR 6 on proportionality—each analyze doctrines that were either nonexistent or materially different at the time of the underlying conviction. Neither interprets the statute as it read in 2023; both develop frameworks that postdate it. Thus, we find that there is no thread of continuity sufficient to carry those holdings backward into this proceeding.
Part III
On the Facts
A. The Applicable Definition of First-Degree Harassment
[18] Before we may evaluate the Inferior Court's application of the harassment statute, we must identify which text that court was obliged to apply. In State of SimDemocracy (Appellant) v. Mooklyn (Respondent), [2023] SDSC 7—the very decision ordering the remand—the Supreme Court quoted first-degree harassment as follows:
- [18.1] "§1. Whoever, acting through malicious intent and with the intent to cause harm and suffering, continually through their own actions or instructing third parties to take action against a person, or a group of persons, thus causing said person or group of persons to feel apprehension and causing social harm, commits the crime of harassment of the first degree."
- [18.2] See [2023] SDSC 7, [7]. Yet in the remanded judgment, Justice Halfcat quoted a materially different provision under Article 52:
- [18.3] "§1. A person commits first degree harassment if they: §1.1. Caused a person or group of persons to feel undue or unjustifiable apprehension, and §1.2. Had the intention to cause apprehension, or acted with reckless disregard as to whether their actions would cause apprehension."
- [18.4] See [2023] Crim 1, [12]. These two are not the same statute. The version cited by the Supreme Court contains five discrete elements: (1) malicious intent; (2) intent to cause harm and suffering; (3) continual action through one's own conduct or through the instruction of third parties; (4) causing apprehension; and (5) causing social harm. The version applied by Justice Halfcat contains two: causing apprehension and the intention or reckless disregard as to whether apprehension would result. Three elements present in the former—malicious intent, intent to cause harm and suffering, and social harm—are wholly absent from the latter.
[19] We need not resolve the precise legislative history of these provisions to dispose of this discrepancy. The Supreme Court—in the same proceeding, on the same charges, concerning the same evidence—identified the longer definition as the operative law of first-degree harassment. It then directed the Inferior Court to issue a new ruling "using only the arguments and evidence from the original trial." See [2023] SDSC 7, [16]. Whatever the Article 52 provision was—whether a subsequent amendment or a parallel section—the remanding court had already declared the law. Under our holding at [10]–[16] supra, the law applicable to the defendant's conduct is the law as it existed at the time of the offense. The Supreme Court confirmed what that law was, and Justice Halfcat was bound by it.
[20] The consequence of this discrepancy is not merely formal. By applying the shorter provision, the Inferior Court bypassed three statutory elements and thereby reduced the prosecution's burden. The analysis that followed—at [14]–[21] of the remanded judgment—never examined whether the evidence established malicious intent, intent to cause harm and suffering, or social harm. These elements were not weighed and found satisfied; they were omitted entirely. We must therefore conduct our own examination of the evidence against the full statutory text.
B. Whether the Evidence Established the Elements of First-Degree Harassment Pro Se
[21] As stated supra at [18.1], we will examine this matter under the statute when the underlying matter occurred, consonant with its respective Supreme Court guidance and order. As to Material Assistance in the Commission of the Underlying Offense, Apprehension on the Underlying Offense, and Intent to Cause Apprehension on the Underlying Offense, we agree with the Inferior Court’s respective analyses. Therefore, we will not further consider these. The issue upon the facts is whether the unanalyzed and untested elements are satisfied for the purposes of the underlying offense in the guidance provided.
[22] For Malicious Intent on the Underlying Offense, we find this element satisfied. Insofar as evidence of malicious intent is not immediately available, we must look to the undisputed objective indicia of such intent. It was pled, evidenced, and shown that Defendant was “more committed than ever now to end these fuckers[.]” On a facial reading, this strikes the Court as malicious.
[23] For Causation of Social Harm on the Underlying Offense, we find ourselves at an interesting divergence. This quandary presents itself in the form of a question—whether an inchoate offense, in the time of the below matter, can present a social harm. There is simply no common law guidance at the time of the below that instructs in either direction. To wit, we generally see little on inchoate matters, even after the below case’s time. However, we do see guidance from SD v. tywearingatie, [2025] Crim 104, wherein Justice IvyCactus wrote that “the social harm occurs upon the offer, not the actual [action].” Id. at [95]. While we do not take this as mandatory—whether because of the hierarchy of the courts or because of our discussion supra on lex mitior—we, after all, intend not to reinvent the wheel. As such, a social harm may be an element proven by prediction of conspiracy to that specific charge, just as an agreement to break the law already demeans the law’s integrity. An inchoate social harm, then, must be thought of in these terms—in tandem with the intent to actually commit the offense.
[24] For Intent to Cause Harm and Suffering on the Underlying Offense, we find that the intent, although possibly not carried forth into reality, is satisfied. To boot, the inchoate nature is precisely so because of the intent to “annoy” to such an extent as to “end [the] fuckers” in question. To acquit an inchoate crime, which would otherwise be permissible for lack of express intent, would be just as nonsensical and arbitrarily prescriptive as reliance upon a promise of sweeping reform, knowing it has been broken many times… and will continue to be.
Part IV
[25] Free speech is indeed a right that the defendant retained. Just as speech is a right qualified by the legitimacy of its instant purpose, see In re Restraining Order Act, [2019] SDSC 1, [14]–[15], such speech is not barred from discovery, reporting, and presentation for purposes of intent and agreement to commit a criminal act, especially within the jurisdiction of SimDemocracy. In such a case, we recognize that the Terms of Service violation, as recognized by the Inferior Court, was duly convicted and sentenced.
[26] The social harm, supra at [23], certainly existed. That being said, neither the quality nor severity is known. To boot, a rewriting of the trial court’s reasoning to readjudicate the sentence imposed would lead to nothing but, much like this ex parte matter, an exercise in moot silliness. Thus, we make no effort to disrespect the trial court’s judgement.
Verdict
[27] The conviction in SD v. Mooklyn (Remanded), [2023] Crim 1 is affirmed.
[28] It is so ordered.
References
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