concurring in part and dissenting in part.
While I agree with the majority's holding that the Judgment Order of May 31, 1994, finding Officer Rayford Heyliger, Chief Harris and Warden Walcott in contempt of court, must be vacated,1 I arrive at this result by a different path. I dissent, moreover, from the majority's conclusion that it is appropriate for this appellate tribunal to order the lower court to dismiss the case. The proper procedure is for the matter to be remanded for the Territorial Court to conduct further proceedings not inconsistent with this opinion.
I view the issue of the failure of the trial judge to disqualify himself from presiding over the criminal contempt proceeding involving one of his own orders as controlling, because it is the only question which was raised below and thus preserved for appeal.2 The majority opinion, on the other hand, first addresses the issue of counsel for the Santiagos being allowed to function as a special private prosecutor, even though the appellants failed to challenge in the trial court the propriety of Attorney Joseph being allowed to prosecute the contempt.3 The rulings on both of these issues should be clearly articulated so there is no doubt that these are alternative holdings and alternative bases for vacating these convictions.4
*143The facts of this case present an important issue which goes to the heart of the proper and efficient administration of justice, namely, respect for judicial authority among agencies of the Government of the Virgin Islands. If the employees of the executive do not respect the Territorial Court and its orders, we can hardly be surprised if members of the public may lose their respect for the courts of the Virgin Islands.
The majority opinion assumes without analysis that the procedure the Territorial Court judge conducted below involved a criminal5 contempt. Before the merits can be dealt with, it is necessary in my view first to determine whether this is a civil or criminal contempt, for nothing in the court's Order To Show Cause dated May 17, 19946 [May 17th Order] (Appendix of Appellant ["App."] at 9-10) and nothing in the proceedings on that Order brought to our attention by appellants7 characterizes the proceedings as either criminal or civil in nature. The Supreme Court has recently provided a roadmap for distinguishing civil from criminal contempt where a monetary fine rather than imprisonment is imposed, first outlining the well-established procedural contours of the two.
*144"Criminal contempt is a crime in the ordinary sense," and "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." For "serious" criminal contempts involving imprisonment of more than six months, these protections include the right to jury trial. In contrast, civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required.
International Union, UMWA v. Bagwell, 129 L. Ed. 2d 642, 114 S. Ct. 2552, 2556-57 (1994) (citations omitted)
In acknowledging that the distinguishing characteristics of the two forms of contempt are less clear than such procedural contours, the Court looked to an early case involving imprisonment as a sanction and drew from it the principle of examining
the "character and purpose" of the sanction involved. Thus, a contempt sanction is considered civil if it "is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court."
114 S. Ct. at 2557 (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 55 L. Ed. 797, 31 S. Ct. 492 (1911)). Since every contempt sanction serves in some way to vindicate the authority of the court, and most sanctions serve to punish and coerce to some extent, "conclusions about the civil or criminal nature of a contempt sanction are properly drawn, not from 'the subjective intent of a . . . court[],' but 'from an examination of the relief itself." Id. (citation omitted). The Supreme Court went on to note in Bagwell that
[t]his dichotomy between coercive and punitive imprisonment has been extended to the [money] fine context. A contempt fine accordingly is considered civil and reme*145dial if it either yycoerce[s] the defendant into compliance with the court's order, [or] . . . compensate^] the complainant for losses sustained." Where a fine is not compensatory, it is civil only if the contemnor is afforded an opportunity to purge.
Id. at 2558 (citations omitted).
Applying these precepts to the case before us, the fact that Judge Brady proceeded by issuing a notice to the correctional officers and holding a hearing does not by itself make the proceeding one of criminal contempt. These contempt proceedings were criminal in nature because the fines were not imposed to compensate the other litigants or to coerce the prison officials to release the Santiago brothers (they had already been released).8 Inasmuch as this appeal involves purely local issues, we need only look to Virgin Islands law on contempt of court, starting with 4 V.I.C. §§ 244, 281-82, as implemented by the appropriate Territorial Court Rules. Since the alleged contempt did not occur in Judge Brady's presence, these criminal contempt proceedings were governed by Territorial Court Rule 139:
(a) Form of Notice, how given. A criminal contempt, except as provided in Rule 1389 shall be prosecuted on notice, and if it occurs in a cause it shall be prosecuted in the cause in which it occurs. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the contempt charged. The notice may *146be given orally by the judge in open court in the presence of the person charged with contempt, or by an order to show cause or an order of arrest.
(c) Designation of Prosecutor The court may designate as the prosecutor of the proceedings, the Attorney General of the Virgin Islands, or any other attorney of this territory.
(d) Disqualification of Judge. Except as provided in Rule 138, if the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the consent of the person charged with contempt.
Terr Ct. R. 139.10
One further aspect of the proceedings below relating to the proper captioning of the case needs to be addressed, namely, whether a new case should have been opened or the contempt proceedings were properly conducted within the criminal case against the Santiago brothers. Rule 139(a) states that "if [a criminal contempt] occurs in a cause it shall be prosecuted in the cause in which it occurs." This is contrary to the teaching of the Supreme Court:
Proceedings for civil contempt are between the original
*147parties, and are instituted and tried as a part of the main cause. But, on the other hand, proceedings . . . for criminal contempt are between the public and the defendant, and are not a part of the original cause,
Gompers, 221 U.S. at 444-45 (emphasis added). Accordingly, I would find that the portion of Rule 139(a) which requires that if a criminal contempt "occurs in a cause it shall be prosecuted in the cause in which it occurs" is in violation of the law and therefore void. Further, for the sake of clarity and certainty, and because a criminal contempt is a separate matter between the people of the Virgin Islands and the alleged contemnors, I would require such criminal contempt proceedings to be filed as a new case in the Territorial Court styled: Government of the Virgin Islands v. [alleged contemnor].11
The majority applies the plenary review standard applicable to questions of law, constitutional and otherwise. Since the recusal vel non of a judge is the quintessential exercise of discretion, the proper standard of review for us to apply is whether Judge Brady abused his discretion in refusing to disqualify himself from hearing this contempt proceeding. E.g., Nilva v. United States, 352 U.S. 385, 396, 1 L. Ed. 2d 415, 77 S. Ct. 431 (1957) (The applicable standard for reviewing a trial court's decision not to disqualify himself in a criminal contempt proceeding under Rule 42(b) is an "abuse of discretion" standard; "in the absence of a showing of an abuse of . . . discretion, petitioner's conviction [on criminal contempt charges] should be sustained.").12
*148Turning at last to the facts and issues before us, the only question presented in this appeal which was raised and preserved below is whether it was proper for Judge Brady to have presided over the contempt proceedings involving the refusal of the prison officials to honor and comply with his order. In apparent recognition that a summary proceeding was not appropriate, the judge issued an order to Director James Aiken, Warden Walcott, Chief Harris, Officer Charles Heyliger, and Officer Diana Jack, to appear and show cause why they should not be held in contempt of court for their failure to follow the court's directive to release the Santiagos as had been ordered by the court. See App. at 9-10.
Although appellants objected to Judge Brady presiding at the hearing, they apparently were unaware of the provision of Rule 139(d) that disqualifies a judge from presiding where the contempt charged involves disrespect or criticism of that judge, unless the person charged with contempt consents. There is no question in my mind that the refusal by these correctional officers to comply with Judge Brady's handwritten order constituted disrespect and criticism of the court as an institution. Whether it also amounted to disrespect or criticism of Judge Brady personally is a closer question. The judge stated on the record that no wrong was done against him personally and his personal feelings were not involved (see supra note 2), and his assessment must be given due consideration. On balance, I would probably conclude that the officers' actions were directed at Judge Brady personally, at least in part. Since appellants obviously did not consent to have him conduct the hearing, he was obligated by Rule 139(d) to recuse himself.
Independent of Rule 139(d), moreover, I would hold that Judge Brady was required to disqualify himself from presiding over the contempt hearing because of the necessity for him to play an active role as one of the main witnesses for the prosecution. In rendering the court's ruling, Judge Brady stated the following:
I was contacted by Warden Walcott at some point in the afternoon — an individual whom I know and who knows me — and he simply inquired, as he testified to, whether or not *149this was my order, whether I had issued it and whether it was my intention that these people be released. I answered in the affirmative on all three counts, and he assured me he was calling to confirm my intent. That was the sum and substance of our conversation.
It was only later that I learned, early evening, that these individuals still had not been released. I then put in a call to the facility and spoke with someone. I believe it was Officer Heyliger, but I cannot be certain. And, in that conversation I recall I advised the officer that, to the best of my knowledge, these individuals had not been released pursuant to the order. I asked the individual if, in fact, the order was at the facility, and I was assured that it was — the order that I had sent.
I asked the individual if there is any doubt that I was Judge Brady, and I was assured there was none. Moreover, I said, "Is there any doubt that I am a judge?" I was assured there was no doubt of that either.
And then I said, "Well, I would like to advise you that if these individuals are not released there are two consequences: One, you will be holding them illegally because they have been released by my order; and two, you will then subject yourself to a possible penalty for contempt of court because that is the possibility since you have in your possession a signed order by me releasing these individuals, and they have not been released. And, I wish you to communicate this information to your supervisors so they will be aware of it as well." And that is the last contact I had with the facility until last Monday morning when Daniel Santiago and Leoncio Santiago were brought before me for advise of rights, and they were still in the custody of the Bureau of Corrections.
Hearing Transcript at 138-40. By not recusing himself, the judge precluded any cross-examination of what was in effect his 'testimony' at the hearing. Ordinary considerations of fairness and impartiality, and the appearance of impropriety, required that Judge Brady recuse himself from presiding over a matter in which the record reveals he was so personally and intimately involved. His failure to do so was an abuse of discretion. See 4 V.I.C. § 284(1), (4) (Disqualifications of judge).
*150Turning to the special private prosecutor issue addressed first in the majority opinion, I agree that ordinarily the Virgin Islands Department of Justice ["Department"] should prosecute a contempt proceeding in the Territorial Court. Here, however, the Department could not do so due to a conflict of interest on two grounds: (1) because it made the dubious decision to represent the alleged contemnors and (2) because by statute the Bureau of Corrections, by which the alleged contemnors were employed, is a division of the Department, headed by the Attorney General. See 5 V.I.C. § 4503(a). Rule 139(c) provides in such circumstances for the Territorial Court to appoint private counsel to prosecute the criminal contempt action.13 Based on the same facts recited in the majority opinion, I would hold that it was an abuse of discretion14 for the trial judge to allow Attorney Joseph to function as special private counsel in prosecuting the criminal contempt action against these appellants. I would further find this clear abuse of discretion to constitute plain error and an alternative ground for vacating the convictions.
An additional potential conflict of interest not present when this case was heard in May of 1994 has since developed. The judge whose order was not complied with, Julio Brady, was sworn-in as Attorney General last year and is now the supervisor of those who defied his order. While there is a question in my mind whether it was proper for attorneys of the Virgin Islands Department of Justice to defend these correctional officers against criminal contempt charges in the Territorial Court, surely there is no requirement that the Department do so.15 Indeed, a threshold question *151should be whether refusing to obey a court order could ever fall within the scope of employment which would warrant the Government providing counsel. If the case were remanded, the Territorial Court could consider whether to exercise its authority under Rule 139(c) to appoint independent private counsel to reprosecute this contempt. If it did so, the correctional officers might have to obtain counsel just like anyone else charged in Territorial Court with a criminal offense. The vindication of the Territorial Court's authority to have its orders obeyed should not be thwarted by such a pedestrian problem of how alleged contemnors who happen to be government employees obtain counsel to defend themselves.
This brings me to the issue on which I dissent, namely, the usurpation by the majority of the Territorial Court's authority to conduct further proceedings. While we may indeed have the power to do so, I submit that it is not appropriate for this appellate court to take the extraordinary step of ordering that this case be dismissed, rather than remanding it for further proceedings. Our authority to determine appeals from the Territorial Court includes the power to "affirm, modify, vacate, set aside or reverse" the judgment appealed from and we "may remand the cause and direct the entry of such appropriate judgment, decree or order or require such further proceedings to be had as may be just under the circumstances." 4 V.I.C. § 33. Only in "special circumstances . . . dictated by considerations of sound judicial administration, in order to obviate further and entirely unnecessary proceedings below" should an appellate court take upon itself to finally dispose of the entire case. Grosso v. United States, 390 U.S. 62, 71-72, 19 L. Ed. 2d 906, 88 S. Ct. 709 (1968); see Yates v. United States, 354 U.S. 298, 331, 1 L. Ed. 2d 1356, 77 S. Ct. 1064 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978) (acquittal ordered by Supreme Court because "evidence entirely too meager to justify putting [defendants] to a new trial . . . ."); accord, United States v. Wander, 601 F.2d 1251, 1263 (3d Cir. 1979) (case remanded to trial court for proceedings not inconsistent with opinion even though certain counts of indictment dismissed *152by appellate court).16 Vacating and remanding for the Territorial Court to consider further proceedings in accordance with the guidance of this Court is the only proceeding that 'may be just under the circumstances'.
For these reasons, I concur with the majority's decision to vacate the lower court's Judgment Order of May 31, 1994, and I respectfully dissent from the majority's order to the Territorial Court to dismiss this case. The proper role of this Appellate Division is to vacate and remand the matter for further proceedings not inconsistent with this opinion.
ORDER OF THE COURT
AND NOW, this 16th day of August 1996, after careful review of the record and haying considered the submissions, and for the reasons set forth in the accompanying Opinion of even date;
IT IS ORDERED, that the Territorial Court's Judgment of Criminal Contempt issued against Warden Kurt Walcott and Chief Ewin Harris dated May 19, 1994 is REVERSED and REMANDED with direction to dismiss the action.
DATED: August 16,1996
A recitation of the facts of this case should reflect that five correctional officials were noticed in the order to show cause, namely, Director James Aiken, Warden Kurt Walcott, Officer Ewin Harris, Officer Charles Heyliger, Officer Diana Jack (Order To Show cause dated May 17, 1994, Appendix of Appellant ["App."] at 9-10), and that the Director was dismissed from the case during the course of the hearing. At the conclusion of the hearing, Officer Jack was acquitted, and Officer Rayford Heyliger, Chief Ewin Harris and Warden Kurt Walcott were found in contempt, with only Harris and Walcott being fined. (Judgment Order dated May 31, 1994).
The transcript of the hearing obtained from the Territorial Court reveals that the appellants moved for Judge Brady to recuse himself because he would be a fact witness, a point which appellants did not bother to include in their brief or appendix. Hearing Transcript at 4-5. The judge took the matter under advisement and heard the evidence, stating that he felt "no need to disqualify himself for reason of bias because [he was] not enforcing any wrong done against [him] . . . [or] involving himself personally in anyway, and no personal feelings of [his] are involved at all in this matter." Id. at 6.
The majority finds reversible error without any recognition of the appellate principle that we may not reverse on an issue raised for the first time on appeal without first determining that it rises to the level of plain error. E.g., Nibbs v. Roberts, 31 V.I. 196, 223 (D.V.I. App. 1995); see Prosser v. Prosser, 921 F. Supp. 1428 (D.V.I. App. 1996).
According to the Supreme Court, alternative ground for a holding does not render that ground dicta or advisory. Woods v. Interstate Realty Co., 337 U.S. 535, 537,93 L. Ed. 1524, *14369 S. Ct. 1235 (1949). "Where a decision rests on two or more grounds, none can be relegated to the category of obiter dictum." Id. at 537; United States v. Title Ins. & Trust Co., 265 U.S. 472, 486, 68 L. Ed. 1110, 44 S. Ct. 621 (1924) ("Where there are two grounds, upon either of which an appellate court may rest its decision, and it adopts both, 'the ruling on neither is obiter, but each is the judgment of the court, and of equal validity with the other." (citation omitted)).
Although Judge Brady may have intended from the outset that this was a criminal proceeding, he did not say so until he made his ruling after hearing the evidence and argument of counsel. App. at 58.
For this reason, I rely on the general contempt provisions of V.I. Code Ann. tit. 4, § 244, rather than the criminal contempt provisions contained in the criminal title of the Virgin Islands Code, e.g. 14 V.I.C. § 581. V.I. Code Ann. tit. 4, § 244 generally defines contempt of a court's lawful order:
Any person who wilfully violates, neglects or refuses to observe or perform any lawful order of a court shall be guilty of contempt of court and upon being found guilty of such contempt may be punished as provided by law.
See also 4 V.I.C. §§ 281-82.
Appellants' brief was of virtually no help to us; worse, it essentially was irrelevant. We received no assistance from the other parties. Attorney Joseph declined to file a brief and the Territorial Court was invited to file an amicus curiae brief but failed to do so. See Order Allowing Extension of Time to File Brief and to File Amicus Curiae Brief, entered in this appeal by Magistrate Judge Jeffrey L. Resnick on November 9, 1994.
Since no term of imprisonment was a part of the sanction and the fines imposed here do not amount to "serious criminal contempt fines/' there was no requirement that the appellants be afforded a jury trial. See, e.g., International Union, UMWA v. Bagwell, 129 L. Ed. 2d 642, 114 S. Ct. 2552, 2562 n.5 (1994) (a contempt fine of up to $ 10,000 has been held insufficient to require a jury trial).
Terr. Ct. R. 138 states that
[a] criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court, or in all instances of failure to obey a summons or subpoena of the court if properly served. . . .
Thus, if this had been a contempt committed in his presence, Judge Brady would have been able to rule summarily.
It is true that Rule 7 of the Territorial Court Rules in effect in the Spring of 1994 favored the application of the Federal Rules of Criminal Procedure over the Territorial Court's own rules: "The practice and procedure in the Territorial Court shall conform as nearly as may be to that in the district court in like causes, except where there is an express provision in the law or these rules to the contrary." Terr. Ct. R. 7 (in effect before Nov. 16, 1994). Future criminal contempts will be prosecuted under the revised Rule 7, however, which requires the use of Territorial Court Rules but allows the federal rules to fill in any gaps: "The practice and procedure of the Territorial Court shall be governed by the Rules of the Territorial Court and, to the extent not inconsistent therewith, by the Rules of the District Court, the Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure." Terr. Ct. R. 7 (eff. Nov. 16,1994). A comparison of Fed. R. Crim. P. 42(b) with Terr. Ct. R. 139 reveals that Rule 42(b) contains the added requirement that the alleged contemnor be advised he is facing a criminal contempt, namely, that the "notice . . . shall state the essential facts constituting the criminal contempt charged and describe it as such." (emphasis added). The notice in future criminal contempt proceedings under Rule 139 should thus describe the contempt charged as a criminal contempt. Depending upon the severity of the punishment the court intends to allow, the jury trial provisions added by Rule 42(b) will also apply. The additional language in Rule 139 that the contempt "be prosecuted in the cause in which it occurs" is dealt with the text, infra.
As the case was presented to us, it carried the caption of the underlying criminal 'cause', Government of the Virgin Islands v. Daniel Santiago and Leonico Santiago, Defendants, clearly improper for this criminal contempt proceeding. Then a second and also improper caption, Curt Walcott and Ewin Harris, Appellants v. Territorial Court of the United States Virgin Islands, Julio A. Brady, Judge, Appellees, was added by the Government in its appellate brief.
The standard of review for analogous provisions of the federal contempt statutes — 28 U.S.C. §§ 144, 455 — is also abuse of discretion. See, e.g., In re Antar, 71 F.3d 97, 101 (3d Cir. 1995); United States v. Antar, 53 F.3d 568, 573 (3d Cir. 1995); United States v. Dalfonso, 707 F.2d 757, 760 (3d Cir. 1983); Johnson v, Trueblood, 629 F.2d 287, 290 (3d Cir. 1980), cert. denied, 450 U.S. 999, 68 L. Ed. 2d 200, 101 S. Ct. 1704 (1981); Mayberry v. Maroney, 558 F.2d 1159, 1162-63 (3d Cir. 1977); United States v. Sammons, 918 F.2d 592, 599 (6th Cir. 1990), *148cert. denied., 510 U.S. 841, 114 S. Ct. 126, 126 L. Ed. 2d 90 (1993); Evenstad v. United States, 978 F.2d 1154, 1158 (9th Cir. 1992).
Not only did the Government attorneys fail to cite to the Territorial Court Rules governing criminal contempt, but they also appear to have been totally unaware that such rules existed. Otherwise counsel would not have made the completely erroneous argument that only the Attorney General can prosecute criminal contempt before the Territorial Court. (Br. of Appellants at 27-28).
Generally, whether the trial judge erred in failing to disqualify counsel is also reviewed for abuse of discretion. See, e.g., Kroungold v. Triester, 521 E2d 763, 766 (3d Cir. 1975); International Business Machines Corp. v. Levin, 579 R2d 271, 279 (3d Cir. 1978).
There appears to be no provision in the Virgin Islands Code which authorizes the Virgin Islands Department of Justice to represent correctional officers or other government employees charged with criminal offenses, although the Attorney General is allowed to represent government employees in certain civil proceedings. See 3 V.I.C. § 114(a)(1). On at least one occasion the Government has paid for private counsel to defend a *151correctional officer charged in the Trial Division of this Court with criminal contempt for failing to obey a written order issued. See Government of the Virgin Islands v. Wayne Todman et al, District Court Crim. No. 92-116.
A remand with instruction to dismiss is justified only when further proceedings would be pointless, such as when the issue is moot, see, e.g., United States v. Munsingwear, Inc., 340 U.S. 36, 39-40, 95 L. Ed. 36, 71 S. Ct. 104 (1950), or the question is nonjusticiable, see, e.g., Renne v. Geary, 501 U.S. 312, 315, 115 L. Ed. 2d 288, 111 S. Ct. 2331 (1991); Taylor Inv. Ltd. v. Upper Darby Tp., 983 F.2d 1285, 1295 (3d Cir.), cert. denied, 510 U.S. 914, 114 S. Ct. 304, 126 L. Ed. 2d 252 (1993), or the court does not have and never had subject matter jurisdiction, see, e.g., National Labor Relations Bd. v. United Food and Commercial Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 133, 98 L. Ed. 2d 429, 108 S. Ct. 413 (1987), or the plaintiff fails to exhaust her administrative remedies, see, e.g., Brown v. Fauver, 819 F.2d 395, 397 (3d Cir. 1987). No such or similar circumstance is present in this case. If the case is remanded, another judge could be appointed, and the case readily could be retried.