Superior Court Judge Serving Illegally?

Posted by By at 2 May, at 10 : 34 AM Print

Judge Stephen J. McEwen

(By Tim Potts, Democracy Rising)

At a capitol news conference today, Democracy Rising PA Co-founder Tim Potts and Rock the Capital coordinator Eric Epstein documented that Superior Court Senior Judge Stephen J. McEwen, Jr. became 78 years old last October 8. Under current law, available on the Supreme Court’s web site, this made McEwen ineligible to serve as a senior judge beyond December 31 of last year. Click here and go to the last paragraph.

During the course of their research, both said that this instance raised far more serious questions about senior judges and the Constitution. For example, the mandatory retirement age has changed four times in the past eight years, ending with the chief justice of the Supreme Court making appointments, solely at his discretion, that can last 10 years – the full length of an elected term – or longer under “extraordinary circumstances.”

Following are excerpts from their statements.

Tim Potts on Judge McEwen’s age dilemma:

The web site of the Unified Judicial System says, in part: “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.”

Judge McEwen did not become a senior judge until 2003, not prior to 1999, so he does not qualify for retirement at age 80.

The web site also says: “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.” Since he was appointed senior judge in 2003, i.e. after January 1, 1999, Judge McEwen may not serve beyond the age of 78.

Tim Potts on the Constitution question:

Article V, Section 16(c) says: “A former or retired justice or judge may, with his consent, be assigned by the Supreme Court on temporary judicial service as may be prescribed by rule of the Supreme Court.”

Does eight or ten years strike anyone as “temporary judicial service”? What’s the practical difference between a judge elected for a permanent ten-year term and a judge appointed for a temporary ten-year term?

But the most important point is this: A judge who serves for ten years should be elected, not appointed. The Constitution sets the term for elected judges at 10 years. There can be no clearer statement that a “temporary” appointment should not last so long.

Eric Epstein on the bigger issue:

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.

Tim Potts on why people should care:

If you are appearing before a judge, it could be important to know whether the judge is legally able to decide your case. It also could be important to know whether that judge owes his position and therefore his allegiance to the people who elected him or to the crony who appointed him and can remove him under “extraordinary circumstances.”

Today’s practice of appointing senior judges creates a merit selection system with virtually no rules that undermines the citizens’ constitutional right to elect their judges. We have been able to find no criteria for the appointment of senior judges, and we know of no public process by which the chief justice makes these decisions.


Both Epstein and Potts said that an investigation of the practice of appointing senior judges is in order by the attorney general and by the General Assembly. The investigation would include who has served as a senior judge, how they are appointed, how long they served, why the rules have changed with such great frequency, whether there were judges specifically advantaged and disadvantaged by each change, and why the chief justice should have sole authority to appoint a judge for 10 years or longer.

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