Advisory opinions

A post on this blog last September reported on an advisory opinion from the North Carolina Judicial Standards Commission about an apparently new judicial ethics issue:  whether a judge can certify that a crime victim was helpful in a criminal prosecution in support of the victim’s application for a U-Visa.  North Carolina Advisory Opinion 2014-3 advised that a judge should not complete a I-918 certification because doing so would appear to put a judge on the prosecution team, providing character testimony and public comment on a pending case.

The Minnesota Board on Judicial Standards has now released the second opinion on the same issue but with different advice.  Minnesota Advisory Opinion 2015-2 states that, if a judge has an adequate factual basis, a judge may certify that a U-visa petitioner was helpful in the prosecution of criminal activity of which the petitioner was a victim after the case is completed.

The Minnesota opinion disagrees with the idea that an I-918 certification is character testimony.  The North Carolina opinion considered that an assessment of helpfulness is, “in essence, the endorsement of the victim’s honesty, reliability, potential for cooperation and other character traits.”  In the Minnesota Board’s opinion, however, “a certification does not vouch for an alien’s character.  Instead, the certification pertains to the alien’s helpfulness to the prosecution.  A helpful alien may or may not have good character.”

With respect to whether an I-918 certification would be an inappropriate comment, the Minnesota opinion concludes that “the applicable federal regulations indicate that the appropriate time for a judge to determine helpfulness is following a criminal conviction,” and, therefore, the case would no longer be pending.  According to the Minnesota opinion, the North Carolina opinion “directly analyzes only pre-conviction certification.”

Thus, there are significant limits on a judge’s ability to complete an I-918 certification for a U-visa certification even under the Minnesota opinion.  First, the case must no longer be pending; the defendant must have been convicted and sentenced or the case otherwise completed.  Second, as with references and recommendations, a judge must have personal knowledge of the facts he or she is certifying to, in the context, “sufficient factual basis to determine whether the alien was helpful.”

Speaking of North Carolina judicial ethics advisory opinions, the North Carolina Commission recently provided helpful advice for a judge in the process of adopting or fostering a child.  North Carolina Advisory Opinion 2015-1 states that, when applying to foster or adopt a child, a judge may disclose information about his employment and discuss his or her judicial office but should avoid statements that could be viewed as an attempt to use the judicial office to gain favorable treatment in the process.  The opinion also discusses disqualification issues if a department of social services is involved in the process.

And speaking of Minnesota judicial ethics advisory opinions, the Minnesota Board recently requested comments on a proposed formal opinion on participation in charitable, educational, or civic organizations and activities.  The Board is one of only 2 advisory committees (the other is the California Supreme Court Committee on Judicial Ethics Opinions) that asks for public comment on proposed formal opinions.  Minnesota and North Carolina are 2 of the 10 states in which the judicial conduct commission issues advisory opinions as well as investigates complaints against judges.  The Center has links to the states’ judicial ethics advisory committees here.

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