A PA Superior Court Judge Touches Off Debate on Stealth Judicial Appointments

Posted by By at 29 April, at 10 : 17 AM Print

Democracy functions best when public participation is informed, when access to information is well advertised, and when laws are adequately enforced.

In Pennsylvania, we are experiencing a crisis of confidence in all three branches of government, and many feel that judicial independence has been compromised.

In order to restore confidence in government, the public must believe that our laws will be constructed to serve the greater good and not used as cryptic refuge for personal promotion.

The case we make today is based on what is available on the Court’s web site, and speaks to the issues of the letter and spirit of the laws we live under.

• Judge Stephen J. McEwen turned 70 on October 8, 2002. His mandatory retirement was effective December 31, 2002. Retired judges may, with the approval of the Supreme Court, continue to serve the Commonwealth as senior judges. According to the AOPC (1):

This service helps ease court backlogs. Effective January 6, 2003, any senior jurist who began serving prior to January 1, 1999, must retire on December 31 of the year in which he/she turns 80. Effective November 20, 2007, senior jurists appointed on or after January 1, 1999, may serve until December 31 of the year in which they reach the age of 78. Effective December 27, 2007, senior jurists appointed after this date may serve a maximum of ten years, absent extraordinary circumstances as determined by the chief justice.

• According to the AOPC, Judge McEwen “has been a Superior Court senior judge since 2003.”

• Judge McEwen turned 78 on October 8, 2010 which should have rendered him ineligible for service on the Superior Court after January 1, 2011. Rule of Judicial Administration 701(A)3 which explicitly states, “Senior status shall end on the last day of the calendar year in which a magisterial district judge, judge or justice attains age seventy-eight.” • Since he did not begin serving as a senior judge prior to January 1, 1999, Judge McEwen would not be able to serve as a senior judge until age 80. He was term limited at 78.

• Judge McEwen also became a senior judge prior to December 27, 2007, so he does not qualify for the arbitrary 10-year provision .

We did discuss this issue with the AOPC – which we invited today – and they believe Judge McEwen is grandfathered into service.

What are the implications of this development?

• How many judges are serving after their retirement age?

• Have any of these judges been promoted for political purposes?

• Have less senior judges been “incented” to retire early?

• What are the criteria for Amending rules, e.g., Rule 701?

• Is there a public involvement process for taxpayers and citizens prior to extending the terms of judges?

• Does the court system have the ability to independently police itself and the right to change its rules at will? (2)

• What are the potential ramifications and precedents associated with this process of appointing senior judges?

The uneven application of any legal standard erodes public confidence. For an institution built on the equitable application of clear and understandable laws, this episode is deeply disturbing

This issue may be indicative of a structural blind spot afflicting the judiciary. If citizens lose faith in the the court system, than we are truly without a referee to keep the legislative and executive branches of government in check.

Administrative Office of Pennsylvania Courts

1 The AOPC is headed by the Court Administrator of Pennsylvania. Its departments and units include Policy and Research, Judicial Services, Judicial Education, Judicial Programs, Judicial Automation, Judicial Security, Legal, Finance, Human Resources, and Communications and Legislative Affairs. The AOPC has offices in Harrisburg and Philadelphia.” (Web site: http://www.aopc.org/T/AOPC/)

2 Unified Judicial System Section 1.

The judicial power of the Commonwealth shall be vested in a unified judicial system consisting of the Supreme Court, the Superior Court, the Commonwealth Court, Courts of Common Pleas, community courts, municipal and traffic courts in the City Of Philadelphia, such other courts as may be provided by law and justices of the peace. All courts and justices of the peace and their jurisdiction shall be in this unified judicial system. Election of Justices, Judges and Justices of the Peace; Vacancies Section 13.2 (a) Justices, judges and justices of the peace shall be elected at the municipal election next preceding the commencement of their respective terms of office by the electors of the Commonwealth or the respective districts in which they are to serve.

Judicial Qualifications Commission Section 14.

(a) Should the method of judicial selection be adopted as provided in section 13 (d), there shall be a Judicial Qualifications Commission, composed of four non-lawyer electors appointed by the Governor and three non-judge members of the bar of the Supreme Court appointed by the Supreme Court. No more than four members shall be of the same political party. The members of the commission shall serve for terms of seven years, with one member being selected each year. The commission shall consider all names submitted to it and recommend to the Governor not fewer than ten nor more than twenty of those qualified for each vacancy to be filled.

(b) During his term, no member shall hold a public office or public appointment for which he receives compensation, nor shall he hold office in a political party or political organization.

(c) A vacancy on the commission shall be filled by the appointing authority for the balance of the term.  Compensation and Retirement of Justices, Judges and Justices of the Peace Section 16.3 (a) Justices, judges and justices of the peace shall be compensated by the Commonwealth as provided by law.

Their compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth.

Prohibited Activities Section 17.

(a) Justices and judges shall devote full time to their judicial duties, and shall not engage in the practice of law, hold office in a political party or political organization, or hold an office or position of profit in the government of the United States, the Commonwealth or any municipal corporation or political subdivision thereof, except in the armed service of the United States or the Commonwealth.

(b) Justices and judges shall not engage in any activity prohibited bylaw and shall not violate any canon of legal or judicial ethics prescribed by the Supreme Court. Justices of the peace shall be governed by rules or canons which shall be prescribed by the Supreme Court.

(c) No justice, judge or justice of the peace shall be paid or accept for the performance of any judicial duty or for any service connected with his office, any fee, emolument of perquisite other than the salary and expenses provided by law.

(d) No duties shall be imposed by law upon the Supreme Court or any of the justices thereof or the Superior Court or any of the judges thereof, except such as are judicial, nor shall any of them exercise any power of appointment except as provided in this Constitution.


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This post was written by:
- who has written 353 posts for Rock The Capital
Eric J. Epstein is RocktheCapital‘s coordinator and a community advocate for good government for over 25 years. Mr. Epstein is also Chairman of the Three Mile Island Alert, Inc., a safe-energy organization founded in 1977; President of EFMR Monitoring Group, Inc., a non-profit economic development corporation established in 1977, and Chairman of the Stray Winds Area Neighbors (SWAN), a smart growth association organized in 2005. Mr. Epstein was a Visiting Assistant Professor of Humanities at PSU-Harrisburg (1992-1999) and co-authored the Dictionary of the Holocaust, which was released by Greenwood Press (1997) - Email Eric Epstein

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