Hon. Leon A. Kendall v. Sen. Ronald E. Russell

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1212
HON. LEON A. KENDALL
v.
SEN. RONALD E. RUSSELL;
LUIS MORALES; ROBERT O'CONNOR, JR.;
ROBERT MALLOY and BRUCE MARSHACK,
in their capacity as Members of the Virgin Islands
Commission on
Judicial Disabilities
Sen. Ronald E. Russell;
Luis Morales; Robert Malloy;
Bruce Marshack,
Appellants
On Appeal from the District Court of the Virgin Islands
(D.C. No. 3-07-cv-00126)
District Judge: Curtis V. Gomez
Argued December 8, 2008

-- 1 of 44 --

Before: FISHER, JORDAN and STAPLETON, Circuit
Judges,
(Filed: July 13, 2009)
_______________
Maria T. Hodge [ARGUED]
Hodge & Francois
1340 Taarneberg
Charlotte Amalie, St. Thomas
USVI 00820
Counsel for Appellants
Howard M. Cooper
Julie E. Green [ARGUED]
Todd & Weld
28 State Street
Boston, MA 02109
Counsel for Appellee
OPINION OF THE COURT
JORDAN, Circuit Judge.
Leon A. Kendall, a judge of the Superior Court of the
Virgin Islands, filed this suit against members of the Virgin
Islands Commission on Judicial Disabilities (the
“Commission”), alleging that Virgin Islands Act No. 3876 (the
“Commission Act” or the “Act”), which empowers the
Commission to remove judges of the Superior Court, violates
the separation of powers principle inherent in the Revised

-- 2 of 44 --

1 Defendant and Commission member Robert O’Connor
did not join in the appeal.
3
Organic Act of 1954 (the “ROA”). 48 U.S.C. §§ 1541 et seq.
The Commission asked the District Court to abstain from
hearing the case, but the Court declined and entered judgment
for Judge Kendall, declaring that the Commission Act does
indeed violate the ROA and enjoining the Commission members
from initiating or continuing removal proceedings against Judge
Kendall. Now, four members of the Commission, Ronald A.
Russell, Bruce Marshack, Robert Molloy, and Luis Morales,
appeal the District Court’s judgment.1 Because we conclude
that the District Court did not err by refusing to abstain and that
the legislation at issue is in violation of the ROA, we will
affirm.
I. Background
A. Establishment of the Commission
On September 9, 1976, the Legislature of the Virgin
Islands passed the Commission Act, which instituted significant
changes involving the judicial system of the Virgin Islands. One
of those changes was the creation of the Commission. V.I. Code
Ann. tit. 4, §§ 651-59. The Act grants the Commission the
“power to retire or remove a magistrate or judge of the Superior
Court of the Virgin Islands” and lists as grounds for removal
conviction of a felony, willful misconduct in office, willful and
persistent failure to perform judicial duties, a mental or physical
disability that seriously interferes with the performance of
judicial duties, or any other conduct that is prejudicial to the

-- 3 of 44 --

4
administration of justice or brings the judicial office into
disrepute. Id. §§ 651, 656.
The Act further specifies that the Commission is to be
composed of two members appointed by the Governor of the
Virgin Islands, two members appointed by the President of the
Virgin Islands Legislature, and one member appointed by the
Board of Governors of the Virgin Islands Bar Association. Id.
§ 652. Members of the judiciary are not eligible to serve on the
Commission. Id.
The Commission may investigate a judge’s health or
conduct on its own initiative or following a complaint. Id. §
657(b)(1). Before the Commission can issue an order affecting
a judge’s tenure, it must hold a hearing. Id. A judge who is
subject to a Commission hearing must be given notice of the
hearing and of the nature of the matters under inquiry. Id. §
657(b)(2). The judge is entitled to attend the hearing, be
represented by counsel, present evidence on his own behalf, and
confront and cross-examine witnesses. Id. Following a hearing,
the Commission makes determinations regarding the conduct or
health of the judge concerned. Id. § 657(b)(3). The concurrence
of at least four members is required for the Commission to make
a determination for removal or retirement. Id.
According to the terms of the Act, if the Commission
makes a determination for removal or retirement, it must file an
order in the District Court of the Virgin Islands. Id. §§
656(a),(b), 657(b)(3). The Act provides that the judge who is
the subject of the order may then petition the District Court to
review the order. Id. § 659. After reviewing the proceedings

-- 4 of 44 --

2In his testimony at the Preliminary Injunction hearing
ultimately held before the District Court, Judge Kendall spoke
of the “complaints” against him as the threat to his judicial
independence, but the context of his remarks indicates he was
speaking of proceedings before the Commission generally
rather than the complaints alone. (App. II at 63-67.)
5
that give rise to the order, the District Court is ostensibly
empowered to affirm, reverse, or remand the order to the
Commission for further proceedings. Id. The District Court is
directed to follow the rules of procedure governing appeals in
civil actions, and its determinations are to be final and
conclusive. Id.
B. Judge Kendall and the Commission
In 2003, Leon A. Kendall was appointed to serve as a
judge of the Superior Court of the Virgin Islands. In June 2007,
Judge Kendall received a letter informing him that the
Commission had received and planned to investigate two
complaints against him. The Commission served Judge Kendall
with two documents on November 16, 2007, each styled as an
“Order and Notice of Hearing,” and each bearing a distinct case
number and hearing date.
Judge Kendall considered the pending hearings to be
“continuing looming threats” to his judicial independence.2 (See
App. II at 66.) On October 4, 2007, he filed a complaint in the
District Court of the Virgin Islands against the members of the
Commission in their official capacities. In his suit, Judge
Kendall sought a judgment declaring that the provisions of the

-- 5 of 44 --

3 As is more fully described herein, Younger abstention is a
legal doctrine granting federal courts discretion to abstain
from exercising jurisdiction over a claim when resolution of
that claim would interfere with an ongoing state proceeding.
See Younger v. Harris, 401 U.S. 37, 41 (1971) (“[W]e have
concluded that the judgment of the District Court, enjoining
appellant Younger from prosecuting under these California
6
Act granting the Commission the power to investigate and
remove Superior Court judges constitute a violation of the
separation of powers principle inherent in the ROA. He also
petitioned the Court to enjoin members of the Commission from
commencing or continuing removal proceedings against him.
The next day, October 5, Judge Kendall filed a Motion
for a Preliminary Injunction. The District Court consolidated
the hearing on the motion with a trial on the merits and heard
testimony and arguments on December 13, 2007. On January
16, 2008, the Court issued a judgment in favor of Judge Kendall,
holding that the provisions of the Act empowering the
Commission to remove Superior Court judges violate the ROA,
and enjoining Commission members from initiating or
continuing removal proceedings against Judge Kendall.
The Court also issued a thorough memorandum opinion
explaining its decision. It began by determining that it had
jurisdiction over the case and that Judge Kendall had standing
to bring his claims. It then turned to whether it had discretion to
abstain from considering the claims because of the ongoing
Commission proceedings. After analyzing the case law on
Younger abstention,3 the Court focused on whether the removal

-- 6 of 44 --

statutes, must be reversed as a violation of the national policy
forbidding federal courts to stay or enjoin pending state court
proceedings except under special circumstances.”). Younger
applies in the context of a territory’s proceedings as well. See
Maymo-Melendez v. Alvarez-Ramirez, 364 F.3d 27, 34 (1st
Cir.2004) (holding that Younger abstention doctrine was
triggered by local administrative proceedings in Puerto Rico).
7
proceedings provided an opportunity for judicial review of
Commission orders and a forum for Judge Kendall to raise his
separation of powers claims. The Court noted that, under the
Act, Commission orders do not take effect until they are
approved by the District Court. The Court held, however, that
it actually had no jurisdiction to review such orders and that the
Legislature of the Virgin Islands could not expand the
jurisdiction of a federal court. Consequently, the District Court
concluded that it could not review the Commission’s orders and
that judicial review of Commission proceedings is thus
effectively unavailable. According to the District Court, since
the Commission proceedings are not subject to judicial review,
they are not judicial in nature and do not provide an adequate
forum for Judge Kendall to raise his separation of powers
concerns. Based on that reasoning, the Court determined that
the Younger factors weighed against abstention and in favor of
reviewing Judge Kendall’s claims.
Next, the Court turned to the merits of those claims. It
began by establishing that, for a local legislature to have the
power to remove a judge, the legislature must be expressly
granted that power by some legal authority, usually a state
constitution. Noting that the ROA serves as the Constitution of

-- 7 of 44 --

8
the Virgin Islands, the Court reviewed the relevant portions of
the ROA and concluded that it does not grant the Legislature
power to remove judges. Without having such power itself, the
Legislature could not delegate it to the Commission. Hence, the
Court concluded, the portions of the Act establishing the
Commission violate the ROA.
Four members of the Commission (“Appellants”) filed a
timely notice of appeal. They assert that the District Court erred
in refusing to abstain from ruling while there were proceedings
before the Commission. On a related point, they argue that the
District Court erred in construing the Act as not providing for
judicial review of Commission orders. Finally, they contend
that the District Court erred in holding that the provisions of the
Act granting the Commission power to remove Superior Court
judges are invalid and unenforceable under the ROA.

-- 8 of 44 --

4 As the ROA is a federal statute, the District Court had
federal question jurisdiction in this case pursuant to 28 U.S.C.
§ 1331. We have appellate jurisdiction under 28 U.S.C. §
1291. While we review the District Court’s decision on
abstention for abuse of discretion, the underlying legal
questions that determine whether the Court had discretion to
abstain are subject to plenary review. IFC Interconsult, AG v.
Safeguard Int’l Partners, LLC, 438 F.3d 298, 305 (3d Cir.
2006). We also exercise plenary review over issues of
statutory interpretation. E.I. DuPont de Nemours & Co. v.
United States, 508 F.3d 126, 132 (3d Cir. 2007).
9
II. Discussion4
We first consider abstention and then turn to the validity
of the contested provisions of the Act.
A. Abstention
“A federal district court has discretion to abstain from
exercising jurisdiction over a particular claim where resolution
of that claim in federal court would offend principles of comity
by interfering with an ongoing state proceeding.” Addiction
Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 408 (3d Cir.
2005) (citing Younger v. Harris, 401 U.S. 37 (1971)). As noted
earlier, the Younger doctrine allows a district court to abstain,
but that discretion can properly be exercised only when (1) there
are ongoing state proceedings that are judicial in nature; (2) the
state proceedings implicate important state interests; and (3) the
state proceedings afford an adequate opportunity to raise federal
claims. Matusow v. Trans-County Title Agency, LLC, 545 F.3d

-- 9 of 44 --

10
241, 248 (3d Cir. 2008). It is beyond dispute that the second
element of that tripartite test is present in this case. Judicial
accountability and the regulation of the judiciary are obviously
important state interests, and the government of the Virgin
Islands is rightly concerned with the competence and integrity
of the men and women who serve on the Territory’s bench. But
that satisfies only one of the three requirements for Younger
abstention. The other two elements, the first and third prongs of
the Younger test, are missing here.
1. Commission Proceedings Are Not
Judicial
In determining whether state proceedings are judicial in
nature, we have identified some “traditional indicia of a judicial
action.” Coruzzi v. New Jersey, 705 F.2d 688, 690 (3d Cir.
1983). For example, proceedings may be judicial in nature if
they are initiated by a complaint, adjudicative in nature,
governed by court rules or rules of procedure, or employ legal
burdens of proof. See id. In addition, and of particular
significance in this case, the Supreme Court has indicated that
the availability of judicial review is an important element of
judicial proceedings. See Middlesex County Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423, 433, 437 (1982) (citing
the availability of review by the New Jersey Supreme Court as
a significant factor in determining that local attorney
disciplinary proceedings were judicial in nature); see also Ohio
Civil Rights Comm’n v. Dayton Christian Schs., Inc., 477 U.S.
619, 627 (1986) (characterizing the holding in Middlesex as
being “that federal courts should refrain from enjoining lawyer
disciplinary proceedings initiated by state ethics committees if

-- 10 of 44 --

11
the proceedings are within the appellate jurisdiction of the
appropriate State Supreme Court” (emphasis added)).
The Act sets forth several prescriptions for the
Commission that make its work akin to judicial proceedings.
The Commission may not enter an order affecting a judge’s
tenure without holding a hearing. V.I. Code Ann. tit. 4, §
657(a)(1). A judge under investigation must be given notice of
any hearing into his conduct and the nature of the matters under
inquiry. Id. § 657(a)(2). In addition, the judge has the right to
attend hearings, be represented by counsel, present evidence on
his own behalf, and confront and cross-examine any witnesses
against him. Id.
The Act also purports to provide for judicial review by
requiring that Commission orders affecting judicial tenure be
submitted to the District Court for review and by stipulating that
any “[d]etermination by the district court shall be final and
conclusive.” Id. § 659. That provision of the Act, however,
presents a conspicuous problem. “Federal courts are courts of
limited jurisdiction. They possess only that power authorized by
Constitution and [federal] statute, which is not to be expanded
by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994) (citations omitted). Despite laudatory
intention, the Legislature of the Virgin Islands cannot expand
the jurisdiction of the District Court. See Estate of Thomas
Mall, Inc. v. Territorial Court of the V.I., 923 F.2d 258, 261 (3d
Cir. 1991) (“Lest we be swayed by the fact that the Virgin
Islands statutory provisions purport to grant jurisdiction in the
District Court, the Territorial Court points out correctly that the
Virgin Islands legislature has no power to do that. Only

-- 11 of 44 --

5 The appellate court anticipated by the ROA was formed
when the Virgin Islands Legislature provided for the
establishment of the Virgin Islands Supreme Court. Pursuant
to the Act of September 30, 2004, No. 6687, § 13(a), 2004
V.I. Sess. Law 190; 48 U.S.C. § 1613a(d), that court now
reviews all appeals from decisions of the courts of the Virgin
Islands.
6 Endeavoring to justify the Legislature’s effort to expand
the jurisdiction of the District Court, the dissent says, “the
Legislature was simply acknowledging that, at the time of the
12
Congress has the power to determine the jurisdiction of the
District Court of the Virgin Islands under Article IV of the
United States Constitution.”). It follows that, regardless of
whether the Act calls for District Court review of Commission
orders, the District Court can only exercise such review if that
jurisdiction is grounded in federal law.
Appellants contend that there is a foundation in federal
law for the jurisdiction they claim exists, or at least existed
when the Act was passed. They base their argument on section
1613a(a) of the ROA, which provides that, prior to the
authorized establishment of a local appellate court, “the District
Court of the Virgin Islands shall have such appellate jurisdiction
over the courts of the Virgin Islands established by local law to
the extent now or hereafter prescribed by local law.” 48 U.S.C.
§ 1613a(a). 5 The flaw in the Appellants’ reasoning is that the
ROA only granted the District Court “appellate jurisdiction over
the courts of the Virgin Islands” and made no mention of any
body like the Commission. 6 Id. (emphasis added). Although

-- 12 of 44 --

Act’s adoption, the V.I. District Court functioned as the
proper appellate tribunal over territorial courts, and was not
granting the V.I. District Court power it did not already
have.” Whether the District Court had appellate power over
local administrative bodies, however, is a question that cannot
be answered by mere assertion. The dissent cites nothing in
support of its statement on this point, and the pertinent
authority indicates that the District Court never had the power
that the Legislature and the dissent claim for it. Again, by its
terms, the ROA only grants the District Court “appellate
jurisdiction over the courts of the Virgin Islands,” 48 U.S.C.
§ 1613a(a) (emphasis added), and not even the Appellants
claim that the Commission is a court.
13
some aspects of Commission proceedings are judicial in nature,
the Commission is plainly not a court. Even the Appellants do
not claim that status for the Commission, though they do
contend that it falls within the judicial branch. To expand the
term “court” to encompass the Commission would move well
beyond the ordinary meaning of the word, see Alaka v. Att’y
Gen., 456 F.3d 88, 104 (3d Cir. 2006) (“Perhaps the most
fundamental principle of statutory construction is that words in
a statute must be given their ordinary meaning whenever
possible.”) (citation omitted), and we decline to take that step.
Appellants next argue that, even if the District Court does
not have jurisdiction to review Commission orders, judicial
review is nevertheless available before the Virgin Islands
Supreme Court. Appellants contend that when the Virgin
Islands Supreme Court was created in 2004, the Commission
Act was “implicitly or impliedly” amended to provide for

-- 13 of 44 --

14
Supreme Court review of Commission orders. (Appellants’
Opening Br. at 16.) In support of their argument, Appellants
cite section 1613a(d) of the ROA, which states, “[u]pon the
establishment of the appellate court provided for in section
1611(a) of this title[,] all appeals from the decisions of the
courts of the Virgin Islands established by local law not
previously taken must be taken to that appellate court.” 48
U.S.C. § 1613a(d). According to Appellants, that provision of
the ROA shifts responsibility for the review of local court
decisions and Commission orders from the District Court to the
Supreme Court of the Virgin Islands.
Appellants bolster their argument by directing us to the
process that the Legislature recently established for the removal
of Justices of the Virgin Islands Supreme Court.
Pursuant to title 4 V.I.C. chapter 36, a justice of
the Supreme Court shall be involuntarily retired
from office when the Commission on Judicial
Disabilities determines that the justice suffers
from a mental or physical disability, including
habitual intemperance, which prevents, or
seriously interferes with, the proper performance
of his judicial duties, and the Commission files in
the Supreme Court an order of involuntary
retirement and the order is affirmed on appeal or
the time within which an appeal may be taken
from the order has expired.
V.I. Code Ann. tit. 4, § 25. Appellants claim that this section
serves as evidence of the Legislature’s intent to provide for

-- 14 of 44 --

7 Our dissenting colleague claims that, “[p]ursuant to the
Act’s language, and following the enactment of [the statute
establishing the Virgin Islands Supreme Court], the
Commission must file all orders of removal in the [Virgin
Islands] Supreme Court, which must affirm any appealed
orders before they become effective.” (Dissent at Part II.A.2.)
That assertion, however, assumes the conclusion of the
argument by taking it as given that the Commission Act was
amended to provide for appeals from Commission orders to
be filed in the Supreme Court of the Virgin Islands. It is
precisely on that point that we disagree. The legislation
establishing the territorial Supreme Court does not say or
imply any such thing. It can certainly be argued that the
legislation should have done so and that, since it does not, the
Virgin Islands Legislature ought to take the matter up now,
15
Supreme Court review of all Commission orders, including
those concerning Superior Court judges, even if the provisions
of the Commission Act regarding removal of Superior Court
judges have not been explicitly amended to reflect that intent.
The argument is not without persuasive force, since it
may well be that the Legislature intended Commission orders
regarding Superior Court judges to be reviewed by the Supreme
Court of the Virgin Islands. But the fact remains that there is
simply no legislation saying that. The Commission Act itself
unambiguously charges the District Court with that task. For us
to read the language otherwise or to conclude that the
Commission Act has been “implicitly or impliedly” amended
would be to legislate from the bench, a task we have neither the
authority nor the inclination to undertake.7 It is not a lack of

-- 15 of 44 --

but recognizing what ought to be done does not imbue us with
the power to do it. There is unquestionably a practical allure
to the dissent’s approach, but the end does not justify the
extraordinary means the dissent would employ. We have
explained that, “[i]f the legislature has not directly amended a
statute, it is only in the rarest case that a court should rule the
statute amended. To do so is to rule that a statute does not
mean what it plainly says.” Galvan v. Hess Oil V.I. Corp.,
549 F.2d 281, 288 (3d Cir. 1977). Here the statute
authorizing the Commission plainly says that Commission
orders are to be reviewed by the District Court, V.I. Code
Ann. tit. 4, §657(a)(2)(C), and that is all it says on the matter.
The statute creating the Supreme Court of the Virgin Islands
is likewise entirely silent about appeals from the Commission.
On this record, we are not persuaded that this is one of those
rarest of cases in which an amendment can be said to be
implicit.
Nor have our earlier precedents taken the step urged by
the dissent. Citing Walker v. Gov’t of the V.I., 230 F.3d 82
(3d Cir. 2000), our dissenting colleague declares that “we
have previously encountered the issue of implicit repeal of the
V.I. District Court’s jurisdiction as a result of the creation of
the V. I. Superior Court” and suggests that we are revisiting
that issue today because this case presents an “analogous
context.” (Dissent at II.A.2.) But neither Walker nor any
other case has ever confronted the question of whether the
legislation creating the Supreme Court of the Virgin Islands
impliedly gave that Court authority to hear appeals directed to
the District Court by the Commission Act. The dissent itself
seems to recognize that in the parenthetical following the
16

-- 16 of 44 --

citation to Walker, which describes the holding as being “that
the V.I. District Court’s original jurisdiction to hear local
matters was implicitly repealed by the placement of original
jurisdiction over all local civil actions into the hands of the
territorial court.” (Id.) The Commission proceedings are, as
no one disputes, administrative; they are not “civil actions.”
Ultimately then, while the dissent indicates it is
eschewing a meddling in Virgin Islands affairs, we think ours
is the more restrained approach. Rather than declaring what
we think the Virgin Islands Legislature must have meant,
even though it did not say it, we leave it to the Government of
the Virgin Islands, through its elected representatives, to
decide how appeals from the Commission should be handled.
17
respect for the Legislature that makes us reticent to recognize an
implicit amendment to the Act. On the contrary, it is our
immense respect for the power and function of the Legislature
that constrains us to look at the language of the Act, not at what
we wish the language were or what we think the Legislature
would do if it actually amended the Act.
2. Lack of Opportunity to Raise Federal
Claims
One consequence of the lack of opportunity for judicial
review of Commission decisions is that there is not a meaningful
chance for a judge under investigation to raise federal claims.
Such an opportunity is a necessity under the third prong of the
Younger test for abstention. Even if the Commission permitted
a judge to advance federal claims - and it is not clear it would -
that would not be adequate because, again, without judicial

-- 17 of 44 --

18
review, the local administrative process alone is not a full and
fair opportunity to litigate such claims. Cf. Middlesex County
Ethics Comm., 457 U.S. at 433; Ohio Civil Rights Comm’n, 477
U.S. at 627 (recognizing that Younger abstention may be
appropriate when there are ongoing state administrative
proceedings, “so long as in the course of those proceedings the
federal plaintiff would have a full and fair opportunity to litigate
his constitutional claim”).
We have previously noted that “the third part of the
[Younger] test ‘is satisfied in the context of a state
administrative proceeding when the federal claimant can assert
his constitutional claims during state-court judicial review of the
administrative determination.’” Zahl v. Harper, 282 F.3d 204,
210 (3d Cir. 2002) (quoting O'Neill v. City of Philadelphia, 32
F.3d 785, 792 (3d Cir. 1994)). An implication of that holding,
which we embrace now, is that the absence of judicial review of
federal claims means the third part of the Younger test has not
been satisfied.
In summary, we conclude that, because the District Court
does not have jurisdiction to review Commission orders, and
because the Act does not provide for any territorial court review
of Commission orders concerning Superior Court judges, there
is currently no valid avenue for appellate review of a
Commission order affecting someone like Judge Kendall. Since
an opportunity for appellate review is a highly significant
element of judicial proceedings and would be essential in this
case to provide a meaningful opportunity to raise a federal
claim, we agree with the District Court that two of the three
elements of the test for Younger abstention are lacking here.

-- 18 of 44 --

19
The District Court was, therefore, correct not to abstain from
deciding this case.
B. Validity of the Act
Having concluded that the District Court rightly refused
to abstain, we now turn to the Court’s decision that the
Commission Act violates the separation of powers principle
inherent in the ROA.
The Constitution grants Congress the authority to “make
all needful rules and regulations respecting the territory or other
property belonging to the United States.” U.S. Const. art. IV, §
3, cl. 2. Pursuant to that authority, Congress passed the ROA,
48 U.S.C. §§ 1541 et seq., which, as we have noted, serves as
the Constitution of the Virgin Islands. See Brow v. Farrelly, 994
F.2d 1027, 1032 (3d Cir. 1993) (citation omitted). The ROA
divides the power to govern the territory between a legislative
branch, 48 U.S.C. § 1571, an executive branch, id. § 1591, and
a judicial branch, id. § 1611. By organizing the government in
that manner, Congress “implicitly incorporated the principle of
separation of powers into the law of the territory.” Smith v.
Magras, 124 F.3d 457, 465 (3d Cir. 1997) (citation omitted).
In Springer v. Philippine Islands, 277 U.S. 189 (1928),
the Supreme Court dealt with an analogous situation. It
reviewed the Philippine Organic Act and noted how that act
embedded the separation of powers in the territorial government
of the Philippines. Id. at 199-202 (1928). The Court then
articulated the practical effect of the separation of powers
principle:

-- 19 of 44 --

20
It may be stated then, as a general rule inherent in
the American constitutional system, that, unless
otherwise expressly provided or incidental to the
powers conferred, the Legislature cannot exercise
either executive or judicial power; the executive
cannot exercise either legislative or judicial
power; the judiciary cannot exercise either
executive or legislative power.
Id. at 201-02. In short, the separation of powers principle
prohibits any branch of government from exercising powers that
are reserved for the other branches, unless such an exercise is
“expressly provided or incidental to the powers” that a branch
necessarily has.
The question then becomes whether there is a basis in the
ROA, either express or as incidental to a grant of power, for the
Legislature to regulate the conduct of judges. The Appellants,
of course, say there is. They note that, in the ROA, Congress
authorized the Legislature of the Virgin Islands to create local
courts. 48 U.S.C. § 1611(a), (b). In the same section, Congress
addressed the power to promulgate rules governing those courts:
The rules governing the practice and procedure of
the courts established by local law and those
prescribing the qualifications and duties of the
judges and officers thereof, oaths and bonds, and
the times and places of holding court shall be
governed by local law or the rules promulgated by
those courts.

-- 20 of 44 --

8 V.I. Code Ann. tit. 4, § 72, which bears the heading
“Selection, appointment, qualifications and salaries of
judges,” states as follows:
(a) The judges of the Superior Court shall be
appointed by the Governor with the advice and
consent of the Legislature. Judges so appointed
shall continue in office until their successors are
appointed and confirmed or until they are
renominated and confirmed, but in no event
shall judges remain in office more than 120
days after the expiration of their terms unless
they have been renominated and confirmed.
(b) To be eligible for nomination for
appointment as a judge of the Superior Court, a
person must be a member in good standing of
the Virgin Islands Bar and shall have been
engaged in the active practice of law for not less
than five years immediately prior to his
nomination, of which not less than three years
21
Id. § 1611(c). Appellants contend that the power to prescribe
the qualifications and duties of the judges encompasses the
power to remove judges from the bench.
We think, however, that their proposed construction of
that provision stretches the statutory language beyond its natural
and intended meaning. While the ROA does grant the
Legislature the authority to prescribe the qualifications of
judges, which the Legislature has done,8 there is no indication

-- 21 of 44 --

shall have been in the Virgin Islands and for
appointment as a judge in the Family Court
Division, the person must also meet the
qualifications established in section 171(c).
(c) The judges of the Superior Court shall be
officers of the Government of the Virgin Islands
... . No judge’s compensation shall be reduced
during his term of office without his consent.
22
that Congress intended that authority to include the power to
remove judges. The ROA itself leads to the opposite
conclusion. In it, Congress demonstrated a clear understanding
of how to provide for the removal of government officials. The
ROA expressly provides that the President of the United States
has the power to remove Virgin Islands district court judges, 48
U.S.C. § 1614(a), that the Governor of the Virgin Islands has the
power to remove the heads of executive departments, id. §§
1591, 1597(c), and that the people of the Virgin Islands have the
power to remove any elected official by recall, id. § 1593(a).
The removal power so plainly provided in those parts of the
ROA is conspicuously absent in the provision authorizing the
Legislature to create local courts and prescribe the qualifications
and duties of local judges. Id. § 1611(c).
Moreover, we think it extremely doubtful that Congress,
in developing the ROA, would ignore that the power to remove
officers from a coordinate branch of government is expressly
established in the United States Constitution, see, e.g., Art. I, §
2, cl. 5 (“The House of Representatives ... shall have the sole
power of impeachment.”); Art. I, § 3, cl. 6 (“The Senate shall

-- 22 of 44 --

23
have the sole power to try all impeachments.”); Art. I, § 3, cl. 7
(“Judgment in cases of impeachment shall not extend further
than to removal from office, and disqualification to hold and
enjoy any office of honor, trust or profit under the United States
... .”), and is not simply left to inference or presumption. We
believe Congress would have followed that pattern or otherwise
been plain about its intention, had it meant for the Virgin Islands
Legislature, operating under a regime of separated powers, to
have authority to remove judges.
Appellants next argue that the Legislature did not violate
the principle of separation of powers in establishing the
Commission because the Commission itself is part of the
judicial branch. Even if inconsistent with the rest of their
arguments about the exercise of legislative power, that
contention at least has the merit of being in tune with the
widespread understanding that the authority to discipline judges
is fundamentally a judicial power. See, e.g., In re Petition of
Judicial Conduct Comm., 855 A.2d 535, 539 (N.H. 2004)
(“[T]he power to regulate the conduct of judges ... is a judicial
power.”); In re Dunleavy, 838 A.2d 338, 344 (Me. 2003) (“The
judicial power ... includes the authority to regulate the
professional conduct of judges.”) (citations omitted); In re
Complaint Concerning Kirby, 350 N.W.2d 344, 347 (Minn.
1984) (“This court has always had an existing inherent power to
discipline judges... .”). But the claim that the Commission is
part of the judicial branch is belied by both the ROA and the
Virgin Islands Code.
In the ROA, Congress explicitly granted the judicial
power of the Virgin Islands to certain enumerated bodies: “The

-- 23 of 44 --

24
judicial power of the Virgin Islands shall be vested in a court of
record designated the ‘District Court of the Virgin Islands’
established by Congress, and in such appellate court and lower
local courts as may have been or may hereafter be established by
local law.” 48 U.S.C. § 1611(a). Pursuant to that grant of
power, the Virgin Islands Legislature has created local courts
and listed which entities exercise the judicial power of the
Virgin Islands:
The judicial power of the Territory is vested in a
court of general jurisdiction created by section 21
of the Revised Organic Act of the Virgin Islands,
approved July 22, 1954, as amended, designated
the ‘District Court of the Virgin Islands’, and in
courts of local jurisdiction to be designated the
‘Superior Court of the Virgin Islands’ and the
court of last resort established pursuant to section
21(b) of the Revised Organic Act, ‘The Supreme
Court of the Virgin Islands.’ Each court is a court
of record.
V.I. Code Ann. tit. 4, § 2. Not surprisingly, since it is not a
court, the Commission is not listed in either the ROA or the
Virgin Islands Code as an entity that exercises judicial power.
The Commission Act itself also undercuts Appellants’
argument by explicitly prohibiting those “who are serving in any
capacity in any court in the Virgin Islands” from being selected
as members of the Commission. Id. § 652(a). In addition, as
explained above, the Act currently provides no valid avenue for
judicial review of Commission orders. Since the Commission

-- 24 of 44 --

9Citing to Smith v. Magras, 124 F.3d at 466, Appellants
argue that the authority to discipline judges may be shared
between the judiciary and the legislature. In Magras, we
stated that the ROA “envisions the possibility of the sharing
of power over the regulation of attorneys between the Virgin
Islands courts and the Virgin Islands legislature, at least to the
extent of imposing a license fee.” Id. Magras does not
suggest, however, that the legislature and the judiciary share
overlapping powers to discipline judges. To the contrary, our
holding in Magras was based in part on our determination that
the attorney licensing scheme posed a minimal interference on
the judiciary’s power to regulate attorneys. Id. at 467. We
recognized that our outcome may have been different if the
challenged action was one which permitted the legislature to
“disbar a delinquent attorney or to regulate his professional
practice, judgment, or activity.” Id. at 465. Our holding in
Magras thus does not contemplate the legislature having
authority to discipline attorneys, much less its having
authority to discipline judges.
25
is not a court and since judges can neither sit on the Commission
nor review its findings or proceedings, it is quite plainly not a
part of the judicial branch.
There is thus no express grant of authority for the
Legislature to exercise judicial power through the creation of the
Commission. Moreover, the Appellants have not advanced an
argument that somehow the disciplining of the judiciary is
incidental to legislative power.9 Any such argument would be
dubious at best, since it is difficult to imagine a legislative

-- 25 of 44 --

10
We are careful to distinguish here between purely
legislative functions and special checks and balances which
an organic document may entrust to the legislature. So, for
example, as we have previously noted, the impeachment
powers that Congress wields are expressly granted by the
United States Constitution and are not incidental to
Congress’s legislative functions.
26
function that incidently involves directly regulating the officers
of an independent branch of government. 10
Because the Legislature purported to authorize the
Commission to exercise the power to remove judges without
itself having such power, we agree with the District Court that
the Commission Act violates the separation of powers principles
inherent in the ROA.
III. Conclusion
For the foregoing reasons, we conclude that the District
Court was correct to not abstain from hearing Judge Kendall’s
claims and to hold that the provisions of the Act empowering the
Commission to remove Superior Court judges violate the
separation of powers principle of the ROA. In reaching that
conclusion, we do not hold that Superior Court judges are
beyond discipline or removal in the Virgin Islands. The
territorial judiciary has inherent authority to regulate the conduct
of its judges, the limits of which authority we do not now
consider. Similarly, because the issue is not before us, we do
not now consider whether the Commission Act would pass
muster under the ROA if Commission orders were subject to

-- 26 of 44 --

27
review by the Supreme Court of the Virgin Islands, though we
do encourage the Virgin Islands’ Legislature to take up the
question of how appeals from such orders should be handled.
We now hold only that the Commission Act in its present form
violates the separation of powers principle of the ROA, and,
accordingly, we will affirm the judgment of the District Court.
FISHER, Circuit Judge, dissenting.
The majority concludes that the District Court was
correct in declining to abstain under Younger from reaching the
merits of Judge Kendall’s appeal, and that the District Court
properly held that the Virgin Islands Legislature (the
“Legislature”) violated the separation of powers principle of the
Virgin Islands Revised Organic Act of 1954 (the “ROA”) in
enacting Act 3876 (the “Act”), thereby empowering the
Commission on Judicial Disabilities (the “Commission”) to
remove judges from the Superior Court of the Virgin Islands. I
respectfully dissent. In my view, the District Court should have
abstained under Younger principles, which require federal courts
to refrain from interfering with ongoing state or territorial
proceedings, and therefore should not have reached the merits
of the instant case.
I.
The ROA states that “[t]he judicial power of the Virgin
Islands shall be vested in a court of record designated the
‘District Court of the Virgin Islands’ established by Congress,
and in such appellate court and lower local courts as may have
been or may hereafter be established by local law.” 48 U.S.C.
§ 1611(a). The ROA provides that the District Court of the

-- 27 of 44 --

11
I will refer to the Appellate Division of the District Court
of the Virgin Islands, which previously had jurisdiction to
review appeals from Virgin Islands territorial courts, as the
“V.I. District Court” throughout this opinion. The V.I.
District Court continues to have jurisdiction to decide the
same types of cases as any typical federal district court (e.g.,
federal question and diversity cases).
12
Although the majority concludes that the Commission is
not a “court” within the meaning of 48 U.S.C. § 1613a(d),
which lists the bodies over which the V.I. District Court has
jurisdiction, see Majority Op. at Part II.A.1, I believe this
does not end our inquiry. Given the express provision for
appellate review of Commission decisions in the Act, I would
hold that Act 6687 granted the V.I. Supreme Court
jurisdiction over Commission decisions when it stated that the
V.I. Supreme Court has jurisdiction “over all appeals arising
from final judgments, final decrees or final orders of the
Superior Court, or as otherwise provided by law.” V.I. Code
28
Virgin Islands has appellate jurisdiction over the territorial
courts of the Virgin Islands, id. § 1613a(a), but that, upon the
Legislature’s establishment of a local appellate court, “all
appeals from the decisions of the courts of the Virgin Islands
established by local law not previously taken must be taken to
that appellate court.”11 Id. § 1613a(d). The Legislature created
the Supreme Court of the Virgin Islands (the “V.I. Supreme
Court”) on October 29, 2004, pursuant to Act 6687, which reads
in part: “The Supreme Court shall have jurisdiction over all
appeals arising from final judgments, final decrees or final
orders of the Superior Court, or as otherwise provided by law.”12

-- 28 of 44 --

Ann. tit. 4, § 32(a) (emphasis added); see also discussion
infra Part II.A.2.
29
V.I. Code Ann. tit. 4, § 32(a); see also id. §§ 32-33. Thus, the
Virgin Islands territorial judicial system now includes the
Superior Court and the V.I. Supreme Court. Consequently, the
V.I. District Court will cease to serve as an appellate tribunal
once it finishes its review of any appeals taken prior to the
passage of Act 6687. See 48 U.S.C. § 1613a(d).
The ROA also provides that “[t]he rules governing the
practice and procedure of the courts established by local law and
those prescribing the qualifications and duties of the judges and
officers thereof . . . shall be governed by local law or the rules
promulgated by those courts.” Id. § 1611(c). Correspondingly,
the Legislature adopted the Act on September 9, 1976, which
created, inter alia, the Commission and granted it the power to
initiate removal proceedings against territorial judges “[o]n its
own initiative, or upon complaint of any person” under certain
circumstances. V.I. Code Ann. tit. 4, § 657(b)(1); see also id.
§ 656(a)(2). The Act further states that “such removal . . .
become[s] effective upon affirmance of an appeal from an order
of removal filed in the district court by the Commission (or upon
expiration of the time within which such an appeal may be
taken).” Id. § 656(a)(2)(C). Once the Commission files an
order of removal or involuntary retirement, the aggrieved judge
“shall have twenty days within which to petition the district
court to review such order,” in which case the court “shall
review the proceedings giving rise to such order and shall either
affirm or reverse the order or remand the cause to the
Commission for further proceedings in accordance with its

-- 29 of 44 --

13
Our sister courts of appeals have recognized that Younger
abstention principles apply in territorial proceedings as well.
See, e.g., Maymo-Melendez v. Alvarez-Ramirez, 364 F.3d 27,
34 (1st Cir. 2004) (applying Younger abstention principles to
administrative proceedings in Puerto Rico); see also Att’y
Gen. of Guam v. Torres, 419 F.3d 1017, 1022 (9th Cir. 2005),
withdrawn sub nom. as moot, Att’y Gen. of Guam v.
Thompson, 441 F.3d 1029 (9th Cir. 2006) (holding that
“proceedings in Guam’s courts may be treated as ‘state
judicial proceedings,’” and therefore applying Younger
abstention principles). I therefore undertake my analysis
much as we would under any traditional argument that we
should abstain pursuant to Younger.
30
order.” Id. § 659. During this process, the reviewing court shall
follow the “[r]ules of procedure governing appeals in civil
actions.” Id. Thus, the ROA gave the Legislature the authority
to regulate the conduct of the local judiciary, which it exercised
by creating the Commission, and the ROA also established the
V.I. District Court as the court with jurisdiction over local
matters until the creation of territorial courts.
II.
The U.S. Supreme Court, in Younger v. Harris, 401 U.S.
37, 41-43 (1971), held that, absent extraordinary circumstances,
federal courts must abstain from enjoining pending state
criminal prosecutions, based on principles of equitable relief,
federalism, and comity.13 Younger “and its progeny espouse a
strong federal policy against federal-court interference with
pending state judicial proceedings absent extraordinary

-- 30 of 44 --

31
circumstances.” Middlesex County Ethics Comm. v. Garden
State Bar Ass’n, 457 U.S. 423, 431 (1982). “The policies
underlying Younger are fully applicable to noncriminal judicial
proceedings when important state interests are involved. The
importance of the state interest may be demonstrated by the fact
that the noncriminal proceedings bear a close relationship to
proceedings criminal in nature . . . .” Id. at 432 (citations
omitted); see also Zahl v. Harper, 282 F.3d 204, 208-09 (3d Cir.
2002) (stating that “the national policy against enjoining
pending state court proceedings has since been extended to
noncriminal judicial proceedings” and administrative
proceedings). Middlesex specifically extended Younger
principles to administrative proceedings (in that case, state
attorney disciplinary proceedings). 457 U.S. at 425.
As the majority notes, “[a]bstention under Younger is
appropriate only if (1) there are ongoing state proceedings that
are judicial in nature; (2) the state proceedings implicate
important state interests; and (3) the state proceedings afford an
adequate opportunity to raise federal claims.” Schall v. Joyce,
885 F.2d 101, 106 (3d Cir. 1989) (citing Middlesex, 457 U.S. at
432). My assessment of these three factors in the context of the
instant appeal leads me to conclude that the District Court erred
by not abstaining.
A.
The first Middlesex factor is whether “there are ongoing
state proceedings that are judicial in nature.” Id. For an
ongoing state action that is not in a typical court setting, some
“traditional indicia of a judicial action” include the filing of a
complaint to initiate a removal proceeding against a state court

-- 31 of 44 --

32
judge, using rules of procedure, employing a burden of proof,
and having the qualities of a proceeding “adjudicative in
nature.” Coruzzi v. New Jersey, 705 F.2d 688, 690 (3d Cir.
1983). The availability of appellate review of the proceeding by
a state court is an additional indicia of a judicial action. Zahl,
282 F.3d at 209. We have further made clear that state
administrative proceedings may be judicial in nature. Id. I will
first discuss the “traditional indicia” mentioned in Coruzzi and
then turn to the availability of judicial review, at the center of
this case.
1.
As noted earlier, removal proceedings can be initiated
“upon complaint of any person.” V.I. Code Ann. tit. 4,
§ 657(b)(1). If the Commission begins an investigation into
possible misconduct by a judge, it must first hold a hearing, of
which the judge must receive notice and at which he shall “be
represented by counsel, [and be able to] offer evidence in his
own behalf, and confront and cross-examine witnesses against
him.” Id. § 657. The Commission must keep a record of the
hearing and may administer oaths; order the inspection of books
and records; subpoena witnesses, testimony, or documents; and
order depositions. Id. Additionally, all of the Commission’s
expenses and its members’ salaries are paid from funds
appropriated to the judiciary and it has access to judicial
facilities and employees. Id. § 655. These aspects of the
Commission overlap substantially with the “traditional indicia
of a judicial action” identified in Coruzzi and strongly suggest
that the Commission’s proceedings are “adjudicative in nature.”
2.

-- 32 of 44 --

33
Moreover, judicial review of the Commission’s orders is
available. As described in detail below, I believe the judiciary
has the power to make final decisions regarding removal of
judges on account of misconduct, “persistent failure to perform
judicial duties,” or “other conduct which is prejudicial to the
administration of justice,” because the Act expressly provides
that orders of removal “become effective upon affirmance of an
appeal from an order of removal filed in the district court by the
Commission (or upon expiration of the time within which such
an appeal may be taken).” Id. § 656(a)(2). Pursuant to the Act’s
language, and following the enactment of Act 6687, the
Commission must file all orders of removal in the V.I. Supreme
Court, which must affirm any appealed orders before they
become effective. Upon review, the V.I. Supreme Court follows
the “[r]ules of procedure governing appeals in civil actions,” and
must then affirm, reverse, or remand the action to the
Commission. Id. § 659. Because the majority disagrees that
appellate review of Commission decisions exists, I will explain
in detail the reasons for my conclusion.
The majority concludes that the Commission cannot meet
the Middlesex test because judicial review of Commission
decisions is unavailable. Judge Kendall argues, and the District
Court agreed, that the creation of the V.I. Supreme Court did not
amend the Commission’s authorizing statute and therefore the
V.I. District Court remains the only venue for the Commission
to file removal orders. Judge Kendall contends that under Estate
of Thomas Mall, Inc. v. Territorial Court of the Virgin Islands,
923 F.2d 258, 261 (3d Cir. 1991), the Legislature could not vest
jurisdiction for review of Commission orders in the V.I. District
Court through the Act because this amounts to an expansion of

-- 33 of 44 --

34
a federal court’s jurisdiction, and only Congress has such power.
Following from this, the majority concludes in Part II.A.1 of its
opinion that this would amount to an improper expansion of the
V.I. District Court’s jurisdiction. However, unlike most federal
district courts, the V.I. District Court doubled as the court with
appellate jurisdiction over purely local matters. Therefore, the
Legislature was simply acknowledging that, at the time of the
Act’s adoption, the V.I. District Court functioned as the proper
appellate tribunal over territorial courts, and was not granting
the V.I. District Court power it did not already have.
Furthermore, based upon an analysis of our precedent and
a plain reading of the ROA at 48 U.S.C. § 1613a(d), I believe
the statute authorizing the Commission was implicitly amended
upon the creation of the V.I. Supreme Court, and that the
Commission must now file all orders of removal in the V.I.
Supreme Court. In Berne v. Boschulte, which related
specifically to the creation of the Superior Court of the Virgin
Islands, the district court acknowledged that “[u]nfortunately,
the legislature has never taken the trouble to make technical,
conforming amendments to all the code provisions which
previously implemented the District Court’s local civil
jurisdiction.” 6 F. Supp. 2d 443, 444 (D.V.I. 1998). Berne then
cited several cases, including one of our decisions, recognizing
that the V.I. District Court’s “divestiture . . . of jurisdiction over
all local civil actions has nevertheless repeatedly been
recognized.” Id.; see also Moravian Sch. Advisory Bd. v.
Rawlins, 70 F.3d 270, 273 (3d Cir. 1995) (“[B]ecause the
amended section [granting the Superior Court original
jurisdiction in certain actions] divests the district court of
jurisdiction over purely local matters, it also implicitly repealed

-- 34 of 44 --

35
[the section allowing appeal of administrative actions to the V.I.
District Court] as it pertains to local matters.”).
Thus, we have previously encountered the issue of
implicit repeal of the V.I. District Court’s jurisdiction as a result
of the creation of the V.I. Superior Court. See Walker v. Gov’t
of the V.I., 230 F.3d 82, 85 (3d Cir. 2000) (holding that the V.I.
District Court’s original jurisdiction to hear local matters was
implicitly repealed by the placement of original jurisdiction over
all local civil actions into the hands of the territorial court); see
also 48 U.S.C. § 1613a(a), (d) (providing for the expiration of
the V.I. District Court’s appellate jurisdiction upon the
establishment of a local appellate court). Nonetheless, if we
revisit the issue now, in this analogous context, we may find a
repeal by implication “if (1) provisions in two acts are in
irreconcilable conflict or (2) it is clear that an earlier act was
intended to be replaced by a subsequent act completely covering
the same subject. In any event, the intention of the legislature
to repeal must be clear and manifest.” In re Guardianship of
Penn, 15 F.3d 292, 295 (3d Cir. 1994) (emphasis and internal
quotation marks omitted) (quoting Gov’t of the V.I. v. Mills, 935
F.2d 591, 596 (3d Cir. 1991)). As my discussion indicates, here
I would find the second prong satisfied and that Act 6687
implicitly repealed the V.I. District Court’s grant of appellate
jurisdiction over Commission decisions.
Finally, Edwards v. HOVENSA, LLC, 497 F.3d 355 (3d
Cir. 2007), provides the clearest support for the logical inference
that the V.I. Supreme Court has jurisdiction over all appeals
previously within the appellate jurisdiction of the V.I. District
Court. Edwards acknowledges that the creation of a territorial

-- 35 of 44 --

36
appellate court supersedes the appellate division of the V.I.
District Court:
“The Revised Organic Act of 1954 granted the
District Court ‘appellate jurisdiction to review the
judgments and orders of the inferior courts of the
Virgin Islands to the extent now or hereafter
prescribed by local law.’ In 1984, the Revised
Organic Act was amended to provide that when
the Virgin Islands legislature established an
appellate court, that court would supercede the
appellate division of the District Court with
respect to new appeals.
. . .
“The Virgin Islands legislature has now provided
for the establishment of the Supreme Court of the
Virgin Islands, see Russell v. DeJongh, 491 F.3d
130[, 131-33] (3d Cir. 2007), and it has repealed
the prior statute establishing the Appellate
Division of the District Court. The appellate
division of the District Court will cease existence
when the last case pending is decided.”
Id. at 359 n.2 (emphasis added in first paragraph) (citations
omitted). Here, the District Court erred in concluding that there
is no procedure for appellate review of the Commission’s
findings; on the contrary, the Act has been amended implicitly,
thereby requiring the Commission to file any order of removal
in the V.I. Supreme Court, and allowing the affected judge to
obtain review of the order by the V.I. Supreme Court.

-- 36 of 44 --

37
Implicit amendment of the Act is further supported
because Act 6687 vests appellate review of Superior Court
decisions, and those otherwise provided by law, in the V.I.
Supreme Court. This is in accord with the Act, which clearly
provides for appellate review of Commission decisions, and
naturally called upon the only court that, at the time of the
enactment, had appellate jurisdiction over local matters to
engage in this review (i.e., the V.I. District Court). See In re
Guardianship of Penn, 15 F.3d at 296 n.10 (“It is assumed that
whenever the legislature enacts a provision it has in mind
previous statutes relating to the same subject matter. In the
absence of any express repeal or amendment, the new provision
is presumed in accord with the legislative policy embodied in
those prior statutes.” (internal quotation marks omitted) (quoting
Marlowe v. Bottarelli, 938 F.2d 807, 813 (7th Cir. 1991))). Any
contrary interpretation of the interaction between Act 6687 and
the Act would render § 1613a(d) of the ROA meaningless
because it specifically provides that all appeals must be taken to
the V.I. Supreme Court once it is created, instead of the V.I.
District Court. See United States v. Cooper, 396 F.3d 308, 312
(3d Cir. 2005) (“It is a well known canon of statutory
construction that courts should construe statutory language to
avoid interpretations that would render any phrase
superfluous.”).
In United States v. Raddatz, 447 U.S. 667 (1980), the
U.S. Supreme Court heard an appeal that claimed the Federal
Magistrates Act (“FMA”) violated Article III of the
Constitution. The FMA provided that a magistrate judge’s
proposed findings and recommendations would be subject to a
de novo determination “‘by the judge who . . . then [exercises]

-- 37 of 44 --

14
Though not completely analogous for separation-of-
powers concerns, the Virgin Islands has an Ethics and
38
the ultimate authority to issue an appropriate order.’” Id. at 682
(alterations in original) (quoting S. Rep. No. 94-625, at 3
(1976)). Under the FMA, “‘[the] authority – and the
responsibility – to make an informed, final determination . . .
remains with the judge.’” Id. (alterations in original) (quoting
Mathews v. Weber, 423 U.S. 261, 271 (1976)). The U.S.
Supreme Court held that the “delegation does not violate Art. III
so long as the ultimate decision is made by the district court.”
Id. at 683.
I find the Commission to be similar to the review system
upheld in Raddatz: it must file orders with the judicial branch,
judges subject to removal orders may petition the court for
review, and, upon a judge filing a petition, the court must review
the proceedings giving rise to the order and then affirm, reverse,
or remand the action to the Commission. See V.I. Code Ann. tit.
4, § 659. Further, when hearing the petition, the judiciary must
follow the same rules of procedure as those followed in civil
actions. Id.
As Judge Kendall notes, approximately forty U.S.
jurisdictions have judicial review bodies outside the judicial
branch. He argues, however, that the powers of those other
commissions are “limited to investigating and making a
recommendation to a court,” which then has “complete plenary
review” of any recommendation. But, it is only logical that the
V.I. Supreme Court considers the Commission’s orders under a
de novo standard. 14 And, as stated above, I would conclude that

-- 38 of 44 --

Grievance Committee (the “Committee”) to review attorney
misconduct. The Committee may not disbar an attorney
without a court order following the Committee’s findings and
recommendations. The court’s review in this scenario is
“virtually de novo, except [it] do[es] not hear and consider
anew live testimony”; it may adopt the Committee’s
disciplinary recommendation or impose its own. V.I. Bar ex
rel. Ethics & Grievance Comm. of the V.I. Bar v. Brusch, S.
Ct. BA Nos. 2007/64, 2007/65, 2008 WL 901533, at *1 (V.I.
Mar. 3, 2008).
39
the final decision on the removal of a judge for misconduct rests
in the hands of the judiciary, through the V.I. Supreme Court,
and not with the Commission. Accordingly, I would hold that
Act 6687 implicitly amended the Act’s language directing
appeals to the V.I. District Court, and that the V.I. Supreme
Court currently has the same power of review over the
Commission’s decisions that the Appellate Division of the V.I.
District Court previously had.
As a result, I would conclude that Judge Kendall’s
current appeal relates to an ongoing state proceeding that is
judicial in nature and, accordingly, the first Middlesex factor is
satisfied.
B.
Neither the District Court nor the majority disputes the
satisfaction of the second factor – whether the Commission’s
proceedings implicate important territorial interests – and I
agree. I will therefore move directly to the third factor.

-- 39 of 44 --

40
C.
Finally, Younger abstention requires “an adequate
opportunity in the state proceedings to raise constitutional
challenges.” Middlesex, 457 U.S. at 432. Federal courts are not
to suspect that a state court would preclude an aggrieved
plaintiff from raising his federal constitutional claims, because
such an assumption “would reflect negatively on the state’s
willingness to enforce federal constitutional principles.
Avoiding just such an intimation . . . lies at the heart of the
Younger doctrine.” Coruzzi, 705 F.2d at 691. The Supreme
Court has made clear that “the burden on this point rests on the
federal plaintiff to show ‘that state procedural law barred
presentation of [its] claims.’” Pennzoil Co. v. Texaco, Inc., 481
U.S. 1, 14 (1987) (alteration in original) (quoting Moore v. Sims,
442 U.S. 415, 432 (1979)). The majority concludes that the lack
of any judicial review results in no meaningful chance for a
judge under investigation to raise federal constitutional
challenges and that, even if a judge could raise those arguments
before the Commission, the Commission’s local administrative
process does not amount to a full and fair opportunity to litigate
such claims. I disagree with both conclusions.
In Middlesex, the Supreme Court was not persuaded by
the argument that the state court judge facing disciplinary
proceedings had no opportunity to raise his federal
constitutional claims when he had never attempted to raise those
claims in the state proceedings. 457 U.S. at 435. Likewise,
Judge Kendall did not attempt to raise constitutional claims
before the Commission, and argues that it is “unclear” whether
the Commission would refuse to entertain such claims. Even

-- 40 of 44 --

41
assuming the Commission was unable to consider such
arguments, this would not be fatal. We have stated that “[t]he
third part of the [Middlesex] test ‘is satisfied in the context of a
state administrative proceeding when the federal claimant can
assert his constitutional claims during state-court judicial review
of the administrative determination.’” Zahl, 282 F.3d at 210
(quoting O’Neill v. City of Phila., 32 F.3d 785, 792 (3d Cir.
1994)). As in Schall, the Legislature has not placed any
limitations on issues appealable from Commission proceedings,
and I do not perceive any. See 885 F.2d at 107. The Pennzoil
Court further stated that:
“Article VI of the United States Constitution
declares that ‘the Judges in every State shall be
bound’ by the Federal Constitution, laws, and
treaties. We cannot assume that state judges will
interpret ambiguities in state procedural law to bar
presentation of federal claims. Accordingly,
when a litigant has not attempted to present his
federal claims in related state-court proceedings,
a federal court should assume that state
procedures will afford an adequate remedy, in the
absence of unambiguous authority to the
contrary.”
481 U.S. at 15 (citation omitted). As discussed, I would
conclude that the V.I. Supreme Court has jurisdiction to review
the Commission’s decisions and that, upon review, it may also
consider the appellant’s federal constitutional claims, which it
is fully equipped to consider. Therefore, the third Middlesex

-- 41 of 44 --

42
factor is satisfied, as there is an adequate opportunity to raise
federal constitutional challenges.
D.
Judge Kendall argues that even if we conclude that all
three Middlesex factors are met, we should still refuse to abstain
under Younger from reaching the merits because “other
extraordinary circumstances exist, such as proceedings pursuant
to a flagrantly unconstitutional statute, such that deference to
the state proceeding will present a significant and immediate
potential for irreparable harm to the federal interests asserted.”
Schall, 885 F.2d at 106. He thus contends that the
Commission’s proceedings are unconstitutional and threaten to
cause him irreparable injury.
The Supreme Court has stated that in this context “‘[t]he
accused should first set up and rely upon his defense in the state
courts, even though this involves a challenge of the validity of
some statute, unless it plainly appears that this course would not
afford adequate protection.’” Younger, 401 U.S. at 45 (quoting
Fenner v. Boykin, 271 U.S. 240, 243-44 (1926)). I read this to
imply that federal courts should be mindful of their role vis-à-
vis state courts. Though the majority’s conclusions regarding
the merits of the instant appeal are not without some persuasive
force, I decline to reach the merits in this dissent because I
believe it is precisely this type of inquiry that the Virgin Islands
judiciary should undertake itself and I cannot view the Act, on
its face, as “flagrantly unconstitutional.”

-- 42 of 44 --

43
Moreover, irreparable injury is an “insufficient” ground
for a federal court to interfere with a state proceeding “unless it
is both great and immediate.” Id. at 46 (internal quotation marks
omitted). This requires a heightened showing of injury from
that required for a permanent injunction or for standing
purposes. It must exceed harm related simply to “cost, anxiety,
and inconvenience of having to defend against a single criminal
prosecution.” Id.; see also Stolt-Nielsen, S.A. v. United States,
442 F.3d 177, 184 (3d Cir. 2006) (“[S]imply being indicted and
forced to stand trial is not generally an injury for constitutional
purposes . . . .”); Deaver v. Seymour, 822 F.2d 66, 69 (D.D.C.
1987) (“Although it is surely true that an innocent person may
suffer great harm to his reputation and property by being
erroneously accused of a crime, all citizens must submit to a
criminal prosecution brought in good faith so that larger societal
interests may be preserved.” (as quoted in Stolt-Nielsen, 442
F.3d at 184)). Harm to reputation based on criminal charges
certainly outweighs the reputational harm Judge Kendall claims
on the basis of the Commission’s judicial review proceedings.
Because Judge Kendall cannot meet the high burden of
demonstrating irreparable harm with concerns merely to his
reputation and social relationships, I do not believe we should
refuse to abstain on irreparable injury grounds.
III.
In conclusion, I would abstain under Younger from
reaching the merits of Judge Kendall’s case because all three
factors of the Middlesex test are present. In my view, the
Commission is not trying a case, it is simply tasked with
determining whether a territorial court judge can continue to

-- 43 of 44 --

44
serve. There is no need for the federal courts to reach the merits
of this case when the Commission may not find that Judge
Kendall engaged in any misconduct. Congress gave the V.I.
Legislature the power to prescribe the qualifications and duties
of judges, and I would allow the Commission and the V.I.
Supreme Court to determine for themselves whether the
Commission violates the separation of powers doctrine of the
ROA. I therefore respectfully dissent. Accordingly, I would
reverse the order of the District Court.

-- 44 of 44 --