Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 01-6

Date Issued: April 27, 2001

Propriety of a Judge's Signing Application for Appointment as a Notary

ISSUE

May a judge ethically sign the statement on an application for appointment as a notary which represents that he or she has examined the application and recommends the applicant for appointment?

Answer: Yes.

DISCUSSION

Canon 2B of the Canons of Judicial Conduct provides in part that "a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others" and that "a judge shall not testify as a character witness."

The Commentary to the Canon states that "a judge may, based on the judge's personal knowledge, serve as a reference or provide a letter of recommendation." The judge also must make clear that such a recommendation "is personal and not an opinion of the court."

When a judge signs a notary application, he or she does so on an official, but non-personal, basis. Virginia Code §47.1-5(3) expressly lists a judge as one of many public officials authorized to recommend someone for appointment as a notary. Part 4 of the written application issued by the Secretary of the Commonwealth is entitled "Recommendation" and stipulates that the person executing this section "[m]ust be a Judge, Clerk or Deputy Clerk of a Virginia Court; a Commonwealth's Attorney or any of his/her Assistants; the Attorney General or any of his/her Assistants; or a member of the General Assembly." When a judge signs such an application, the statement he or she is endorsing is: "I have examined this Application and recommend the Applicant for appointment as a Notary Public."

While at first blush this may appear to be an official recommendation prohibited by Canon 2B, an examination of the notary application as a whole requires the conclusion that it is not. Part 3 of the application is entitled "Endorsements" and must be executed by two citizens willing to subscribe to the statement, "I, the undersigned, a registered voter of the Commonwealth of Virginia, do hereby declare, to the best of my knowledge, that the Applicant is of sound moral character and is able to read and write the English language." (Emphasis added). Thus, to the extent that the notary application requires a character recommendation, such is the function of Part 3 of the application, not Part 4.

The Committee, therefore, concludes that a judge does not violate Canon 2B by executing Part 4 of a notary application. The application as a whole contains two levels of endorsement: (1) two individuals attest to the moral character of the applicant; and, (2) a public official, who may be a judge, signs merely to certify that the application appears to be in order and that the appointment appears to be appropriate. Although the application form uses the verb "recommends," the judge clearly is not certifying the applicant's good character. Indeed, the judge's action appears to be no more than a ministerial act. This conclusion also is supported by information published on the Secretary of the Commonwealth's Internet website that indicates that, if the applicant is unable to obtain the signature of any of the public officials listed in Part 4 of the application, the applicant can obtain the necessary signature from a clerk or deputy clerk of court simply upon request.

The Committee notes, moreover, that the General Assembly specifically has designated judges to be among the public officials authorized to execute Part 4 of the notary application. The General Assembly thus has made this type of action part of the judicial function. Although this legislative authorization certainly is not conclusive, it is a reasonable inference that the legislature would not authorize judges to perform an act that is patently unethical or which would constitute a violation of the Canons.

REFERENCES

Canon 2B, Canons of Judicial Conduct

Code of Virginia, §47.1-5(3)

All opinions shall be advisory only, and no opinion shall be binding on the Judicial Inquiry Review Commission or the Supreme Court in the exercise of its judicial discipline responsibilities. However, the Judicial Inquiry Review Commission and the Supreme Court may in their discretion consider compliance with an advisory opinion by the requesting individual to be evidence of a good faith effort to comply with the Canons of Judicial Conduct provided that compliance with an opinion issued to one judge shall not be considered evidence of good faith of another judge unless the underlying facts are substantially the same. Order of the Supreme Court of Virginia entered January 5, 1999.

This page last modified: April 30, 2001