Opinion 78-4

March 21, 1978

Dear :

The Committee on Standards of Conduct Governing Judges responds to your recent inquiry wherein you request the opinion of the committee as to whether or not you have an obligation to report to the appropriate authorities assertions voluntarily made under oath during testimony being adduced before you in a domestic relations matter wherein on of the parties testified to having intentionally and deliberately omitted from the Federal Income Tax Return filed by the parties for the several preceding years substantial amounts of money which had been earned by the party testifying.

The committee has been unable to find any provision of the Code of Judicial Conduct or any law furnishing a definitive answer to your inquiry. It is noted that Section 4 Title 18 USCA provides that "whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some Judge or other person in civil or military authority under the United States, shall be fined not more that $500.00 or imprisoned not more than three years, or both." That statute is usually referred to as a "misprision of felony statute." Although the wording thereof appears clear enough, the case law tends to lead to the conclusion that in order to be guilty of the proscribed conduct some affirmative act of concealment is necessary. (Also as perhaps peripherally of interest are 18 USCA, Section 3 and DR 1-102(a)(4); DR 1-102(a)(5); DR 7-102(A)(3); DR 7-102(B)(1) and EC 7-27 of the Code of Professional Responsibility). It is further noted that under Section 19, Article V of the Constitution of Florida all judicial officers are made conservators of the peace.

Of the nine members of the committee which have responded to your inquiry, three are of the view that you have a definite obligation of reporting the matter. Six members of the committee are of the view that although you have no obligation, neither is there any ethical prohibition; thus leaving the determination to your own discretion.

We appreciate your inquiry and hope that our opinion may be of benefit for your future guidance.

Sincerely yours,

Tyrie A. Boyer, Chairman
Committee on Standards of Conduct Governing Judges


Participating members: Judges Boyer, Carlisle, Haverfield, Hewitt, Murphee, O'Connell, Stephenson, Turner and Samuel J. Powers, Attorney