
    In the Matter of William W. Seiffert, a Judge of the Nassau County District Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued May 28, 1985;
    decided June 13, 1985
    POINTS OF COUNSEL
    
      Frank A. Gulotta for petitioner.
    I. The “preponderance” standard of proof applicable in a judicial disciplinary proceeding is constitutionally invalid. (Addington v Texas, 441 US 418; Santosky v Kramer, 455 US 745; Little v Streater, 452 US 1; Woodby v Immigration Serv., 385 US 276; Chaunt v United States, 364 US 350; Simcuski v Saeli, 44 NY2d 442; Matter of Love, 46 NY2d 784; Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211; Huggins v Castle Estates, 36 NY2d 427; Matter of Cerbone, 61 NY2d 93.) II. The Commission’s determination of judicial misconduct as to each charge was erroneous as a matter of law. (Matter of Spector v State Commn. on Judicial Conduct, 47 NY2d 462; Berger v United States, 255 US 22.) III. The sanction of removal imposed by the Commission was unduly harsh and excessive. (Friedman v State of New York, 24 NY2d 528; Matter 
      
      of Richter, 42 NY2d [aa]; Matter of Kelso, 61 NY2d 82; Matter of Sardino v State Commn. on Judicial Conduct, 58 NY2d 286; Matter of Bulger v State Commn. on Judicial Conduct, 48 NY2d 32.) IV. The combination of adjudicative and investigative functions in the Commission violated petitioner’s right to due process. (Withrow v Larken, 421 US 35; Matter of Lowcher v New York City Teachers’ Retirement Sys., 54 NY2d 373; Sharkey v Thurston, 268 NY 123.)
    
      Robert Tembeckjian, Gerald Stern and Alan W. Friedberg for respondent.
    I. Petitioner’s conduct violated established ethical standards and warrants removal from office. (Matter of Byrne, 47 NY2d [b]; Matter of Kuehnel v State Commn. on Judicial Conduct, 45 NY2d [y]; Matter of Dier, 48 NY2d 874; Matter of Dixon v State Commn. on Judicial Conduct, 47 NY2d 523; Matter of La Carrubba, 49 NY2d [p].) II. Petitioner’s attack on the Commission’s procedures is totally lacking in merit. (Matter of Vaccaro, 42 NY2d [a]; Matter of Richter, 42 NY2d [aa]; Matter of MacDowell, 57 AD2d 169; Matter of Filipowicz, 54 AD2d 348; Matter of Capoccia, 59 NY2d 549; Santosky v Kramer, 455 US 745; Addington v Texas, 441 US 418; Woodby v Immigration Serv., 385 US 276; Chaunt v United States, 364 US 350; Matter of Friess v New York State Commn. on Judicial Conduct, 91 AD2d 554.) III. Petitioner’s request for reconsideration was properly denied by the Commission. (Matter of Shilling, 51 NY2d 397.)
   OPINION OF THE COURT

Per Curiam.

We accept the determination of the State Commission on Judicial Conduct that petitioner, a Judge of the District Court of Nassau County, be removed from office. The record fully supports the Commission’s findings of fact and conclusions of law. As fairly summarized by the Commission:

“[Petitioner] intervened on three occasions in matters not before him to seek special consideration for defendants with whom he had personal relationships.

“In two cases, he went to extraordinary lengths to pressure prosecutors to agree to charge reductions not available to other defendants, in one case on behalf of his stepson and in the second on behalf of an acquaintance who had done [petitioner] a favor that he had promised to return. [Petitioner] acted as an adversary in these matters, proposing dispositions to the prosecutors, persisting when they refused his suggestions and exhibiting impatience when they refused to yield.

* * *

“In the Lucey matter, [petitioner’s] misconduct was exacerbated by the fact that he reached out to another part of the court to bring the case béfore him and, after bargaining on behalf of the defendant, disposed of the matter himself.”

This egregious conduct violated sections 100.1, 100.2 and 100.3 (a) (2) of the Rules Governing Judicial Conduct (22 NYCRR) and Canons 1, 2 and 3 [A] of the Code of Judicial Conduct and warrants petitioner’s removal.

We reject petitioner’s contention that the standard of proof in this proceeding should be “clear and convincing evidence” rather than the “preponderance of the evidence” standard adopted by the Commission (see, 22 NYCRR 7000.6 [i]). In Santosky v Kramer (455 US 745, 756), relied upon by petitioner, the Supreme Court cited a variety of situations where it had mandated the “clear and convincing” standard in government-initiated proceedings that threatened the individual with “ ‘a significant deprivation of liberty’ or ‘stigma’.” The nature of the individual interest threatened, however, is not the only consideration in deciding whether, in a particular type of proceeding, due process requires the use of the higher standard. The decision must be based upon a fair allocation between the State and the individual of the risk of an erroneous determination in the proceeding (see, Santosky v Kramer, supra, p 761). This, in turn, requires a weighing of the interests involved. “The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.” (Addington v Texas, 441 US 418, 427, quoted in Santosky v Kramer, supra, p 768.)

In approving the preponderance standard in attorney disciplinary proceedings, we pointed out that the privilege to practice law is not a personal or liberty interest, but “is more nearly to be classified as a property interest, as to which the higher standard of proof has not been required.” (Matter of Capoccia, 59 NY2d 549, 553.) So, too, is the right of a judge to continue in office more akin to a property, rather than a personal or liberty, interest. Moreover, even though removal from office is more serious than a “mere loss of money”, since it inflicts a “stigma” (Addington v Texas, supra, pp 424,426), the interest of the State and of the public in a competent judiciary is superior to the interest of the individual Judge to continue in office. We have held that in a disbarment proceeding, the “concern for the protection of the public interest far outweighs any interest the convicted attorney has in continuing to earn a livelihood in his chosen profession.” (Matter of Mitchell, 40 NY2d 153, 156.) Concern for the protection of the public interest weighs no less heavily in the present proceeding.

Accordingly, the determined sanction should be accepted, without costs, and the application for review of the December 18, 1984 order of the Commission denied.

Judges Jasen, Meyer, Simons, Kaye, Titone and Boomer concur in Per Curiam opinion; Chief Judge Wachtler and Judge Alexander taking no part.

Determined sanction accepted, without costs, and William W. Seiffert is removed from his office of Judge of the District Court, Nassau County. Application for review of the December 18,1984 order of the Commission denied. 
      
       Designated pursuant to NY Constitution, article VI, § 2.
     