Should Judge Sandra Simms Be Retained in Office for Another 10 Years? Speak Out Now Or For 10 Years Hold Your Nose

In early-to-mid January, 2004 the Honolulu newspapers occasionally ran an advertisement from the Judicial Selection Commission announcing that public comment was invited regarding whether Judge Sandra Simms should be retained in office for another term of ten years.

Following is the newspaper announcement; then the testimony submitted by Ken Conklin on January 7 (with special attention to Hawaiian sovereignty-related issues); then two newspaper reports from May 11, 2004 reporting that Judge Simms has been DENIED reappointment; then Ken Conklin's e-mail to the reporters who wrote those articles. Included on this webpage are numerous published articles about Judge Simms’ excessive leniency in sentencing, including some incidents related to Hawaiian sovereignty-related income tax evasion and land title scams. One interesting side issue was the reporting in newspapers about the violent criminal activities of Richard Simms, son of the judge. During the mayoral election campaign in Fall 2004, an internet newspaper reported accusations of criminal activity against the wife of mayoral candidate Duke Bainum. The reports about Bainum’s wife were protested as being a smear. Ken Conklin published an article defending the publication of information about Bainum’s wife as being appropriate to help the public judge the character and judgment of the mayoral candidate, just as the Star-Bulletin and other newspapers had recently published news about Judge Simms’ son’s criminal activities at a time when the Judge was a candidate for reappointment to the bench. That article comparing the Bainum and Simms “smear” issues is copied at the end of this webpage.


Advertisement in the Honolulu Advertiser, Sunday January 4, 2004


The Judicial Selection Commission, State of Hawaii, announces that the term of The Honorable Sandra A. Simms, Judge, Circuit Court of the First Circuit, State of Hawaii, will expire on May 25, 2004. Judge Simms, in accordance with Section 3, Article VI of the Constitution of the State of Hawaii, has petitioned to be retained in office and to be renewed for an additional term. The Constitution of the State of Hawaii empowers the Judicial Selection Commission to determine whether Judge Simms should be retained for a new term.

The Judicial Selection Commission invites interested persons to submit written information and comments on whether Judge Simms should be retained in office for a new term. All comments will be kept confidential by the Commission and should be delivered by mail to the following address before February 16, 2004.

Sidney Ayabe, Chair
Judicial Selection Commission
State of Hawaii
417 South King Street
Honolulu, HI 96813


Judicial Selection Commission has a website at


On January 7, 2003 Ken Conklin submitted his testimony by e-mail to the following address, obtained after calling the JSC office (no e-mail address is provided on the website, and the secretary seemed dumfounded to think anyone would want to communicate with JSC by e-mail!)


To: Judicial Selection Commission, State of Hawai'i

From: Kenneth R. Conklin, Ph.D

Re: Petition for Retention in Office of Judge Sandra Simms

Date: January 7, 2004

Aloha Committee members,

I am responding to your published invitation to submit written information and comments regarding whether Judge Sandra Simms should be retained as a judge for an additional ten years.

My short answer is: NO, she should not be retained. Please do not sentence the people of Hawai'i to ten more years of her presence on the bench.

My primary reason for opposing her retention is her extreme leniency in sentencing in numerous high-profile cases (some examples below). That extreme leniency greatly undermined public confidence in law enforcement generally, and has held the judiciary up to public ridicule on numerous occasions.

One purpose of sentencing is deterrence. Both the individual criminal being sentenced, and potential criminals contemplating future crimes, should be made to fear the consequences of future illegal activity. Judge Simms' extreme leniency in sentencing sent a clear message to convicted and potential criminals that they have little to fear. Seeing Judge Simms' sentences, they simply laugh at the whole legal system and feel emboldened to pursue their criminal activities more vigorously.

One purpose of sentencing is to give confidence to police officers and prosecutors that the hundreds of hours and thousands of dollars they spend finding and prosecuting criminals, and the risk to life and limb in bringing them to justice, will produce results which are significant. The general public also needs to know that its tax dollars are being well spent to support police, prosecutors, and the judiciary; that a criminal caught and convicted at great expense will not simply be given probation and a pep talk by the judge. Judge Simms' extreme leniency in sentencing greatly undermines the morale of police and prosecutors, and makes the public disinclined to spend more money on a system which clearly is not working properly.

One purpose of sentencing is to give confidence to the public that their need for safety and security is being protected. The public also needs to know that vigilantism is unnecessary; that a victim's understandable need for retribution will be handled by "the system" so the victim does not feel a need to retaliate personally against his victimizer. If some hoodlum beats me up and causes grave bodily injury to me while I'm waiting innocently at a bus stop, I might feel so angry that I might get a baseball bat and hunt him down and beat him half to death. But if I know he will be punished ADEQUATELY by the legal system, I'll be content to let the system take care of retribution for me. A major industry in Hawai'i is tourism. Judge Simms' extreme leniency in sentencing local hoodlums who beat up a tourist at a north shore O'ahu bus stop was reported in the victim's hometown media, causing future tourists to question the wisdom of coming to Hawai'i.

One purpose of sentencing is to assure the public regarding the stability of our government and political system. When a criminal has been convicted of an "ordinary" crime committed for the clearly stated political purpose of undermining our entire system of property law or income taxation, that criminal should be treated more harshly rather than more leniently. In several situations where Hawaiian sovereignty activists have committed criminal acts of attacking valid land titles based on bogus theories of Kingdom law, or helping people evade income taxes on grounds that the U.S. lacks jurisdiction in Hawai'i, Judge Simms gave extraordinarily lenient sentences. In the case of David Keanu Sai, when I personally attended the sentencing, Judge Simms' outrageously lenient sentence (probation) was accompanied by words spoken from the bench, and personal demeanor, indicating sympathy for the difficulties of engaging in political protest or civil disobedience. Juror-nullification is one thing, but judge-nullification is far more devastating. Judge Simms also chose to ignore (and thereby to tolerate and encourage) the blatant disrespect for the Court shown by dozens of Hawaiian activists who packed the courtroom and refused to stand when the judge entered (because they don't recognize her jurisdiction). In the Sai case, and the taxation cases, Judge Simms' attitude seems to be (my inference, not her language): "I understand the noble reasons for your breaking of the law; your courage is to be praised; you have my best wishes; I'm required to sentence you so I'll let you off as gently as possible."

If a judge repeatedly gives extremely lenient sentences, and if the Judicial Selection Commission condones such poor judgment by retaining the judge for an additional ten year no-recall period, then the public will loudly demand that the Legislature pass more stringent minimum-sentence laws. So, if the Commission hopes to protect the flexibility of our judges to exercise discretion in sentencing, then the Commission must exercise its own discretion by not retaining Judge Simms. I am not an attorney. I do not have access to the full range of Judge Simms' decisions or sentences, as you do. I am just a member of the public who has been repeatedly outraged by her poor judgment. Apparently there is no way for a judge to be removed from office short of impeachment for serious crimes; the public has been told to wait for years until the time for reappointment. The Judicial Selection Commission is the only thing standing between Judge Simms and ten more years of bad sentencing. Please listen to the people and do your duty.

Following are several newspaper reports and editorials from spanning more than five years, 1998-2003, illustrating the points raised above. There are also two webpages documenting the seriousness of the underlying challenges to the property title and income tax systems, and the large number of property deeds and tax returns involved in the conspiracies underlying the individual cases before Judge Simms.

[Note: The following items are arranged in chronological order. The first 4 are not related to Hawaiian sovereignty; but the final 6 are focused on it]


Editorials. Wednesday, July 29, 1998. ** Excerpts **

Sentence delay based on ridiculous rationale

APPARENTLY awed by what a criminal defense lawyer describes as his client's "absolutely precious" time bonding with his newborn son, Circuit Judge Sandra Simms has postponed a man's prison sentence until November. The delayed punishment is a strange abuse of her discretion, but such an aberration should not prompt legislators to reduce judges' options. Most wouldn't even consider emulating Simms' outrageous departure from sentencing practices.

The incarceration delay was afforded to Jonnaven Monalim, who was convicted July 17 of assault for punching and breaking the jaw of a 17-year-old boy at Makaha Beach after a football game a year ago. At the time of the incident, Monalim, a professional boxer, was on probation for felony convictions stemming from a 1989 brawl in Waianae. His history also includes reckless driving and harassment incidents involving his girlfriend. According to city Deputy Prosecutor Renee Sonobe Hong, police reports describe Monalim as a danger to the community and to his own family.

Will Simms' decision prompt other criminal defendants awaiting trial to decide the time is right to start a family, so they too can possibly delay their own sentences? Is society really being served by facilitating the "bonding" between babies and criminals?

These questions have no place in courtrooms, because the issue should not have arisen in the first place. Judge Simms' entertainment of such a motion for delay of sentencing -- allowed as the consequence of a defendant's irresponsible conduct -- is farcical. Her decision should be reversed.


Wednesday, August 5, 1998

Judge stands by ruling on bonding
The judge's decision upset the mother of the boy, 17, who was injured by Jonnaven Monalim

By Linda Hosek, Star-Bulletin ** Excerpts from lengthy article **

A convicted Waianae man will have a 10 p.m. curfew, but won't have to go to jail until Nov. 2 for breaking the jaw of a 17-year-old boy last August.

When Jonnaven Monalim does report after a unique opportunity to bond with his newborn, his attorney likely will ask that he serve only a mandatory minimum of six months.

Circuit Judge Sandra Simms ruled from what she described as the "hot seat" and stood by a previous decision to delay prison for 31/2 months to give Monalim time with his son. "Having a child is a humanizing experience," Simms said. "It is a life-changing experience."

She acknowledged that Monalim, 28, has two sides in which he either frightens people or shows promise. But she also said if he enters prison with a desire to mature for his son's sake, "we may all be better off for it."

[T]he victim's mother said Simms' ruling lacked "reasoning." "If judges are put on a bench to serve people and keep the community safe, then something wrong happened here," Geri Martin said. She tearfully urged other victims to speak out to end Monalim's control over them, adding: "This is how people get power, because people don't come forward."

Simms didn't allow a Honolulu detective to testify about three 1995 and 1996 police reports, saying: "I don't think the court can operate on speculation." Hong said the reports allege other violent incidents. Harrison said they were suspect, filed by people unwilling to make a formal complaint. ... Hong had argued that Monalim's record should be considered in total to include the 1989 convictions, a 1990 conviction for spouse abuse, the three police reports and the 1997 conviction for assault. She also said that the domestic abuse conviction may suggest that Monalim's baby could be at risk for his inability to cope with stress. "It's clear in my mind that this child is very important to him," Harrison countered. "He assures me that there will be no issue of domestic violence."

Martin, who said she has had little sleep in recent weeks, said she would seek counseling to deal with the situation. She became outraged after Simms allowed Monalim to remain free until Nov. 2. Simms had ordered him July 17 to report to prison July 20, but changed her mind out of court later that day.

Hong, who heard about Simms' decision from a telephone message after Simms left on vacation, asked another judge to send Monalim to jail. The judge referred the motion back to Simms ... Simms turned to Monalim to plant a question for him to consider as he prepares for prison: "Who are you?" she asked. "You've got to decide."


Wednesday, January 13, 1999 ** Excerpts **

Prosecutor blasts judge’s decision

By Debra Barayuga

A Circuit Court judge's decision to impose only a 30-day jail sentence on a man who blew his second chance at probation shows the need to take away judicial discretion and impose mandatory sentencing, says the city's top prosecutor. "It's a clear display of excessive leniency," said Prosecutor Peter Carlisle, referring to Judge Sandra A. Simms' latest decision.

Yesterday, Simms resentenced Rodney Balbirona, 20, convicted of second-degree theft, to 30 days in jail before he is released on five years probation for violating terms of his probation. Prosecutors have asked for a five-year jail sentence at least three times.

Mandatory sentences strip judges of discretion, Carlisle said. But while he doesn't feel jail is appropriate in every case, "by the same token where jail should be imposed, I'm startled by the fact that it's not done. In this particular case, it doesn't seem to be a particularly hard call."

The jury last year found Balbirona was not responsible for the beating and robbery of Chicago policeman James Boreczky in April 1996. Instead, they found him guilty of second-degree theft for taking Boreczky's suitcase after the officer was punched by another man, Darrell Ortiz. Ortiz received a maximum 10 years for second-degree robbery.

Simms' latest decision has triggered outcry from the public and prosecutors. Phones at the prosecutor's office have been ringing off the hook, Carlisle said.

Simms provoked outrage in February 1997 when she sentenced Balbirona to five years probation rather than the maximum five years imprisonment.

"There have been other instances where we strongly disagree with her treatment of criminal defendants convicted of crimes," Carlisle said.

Among them:

Delaying a prison sentence by 31/2 months for Jonnaven Monalim so he could spend time with his newborn son. Monalim was convicted of assault last July for punching and breaking the jaw of a 17-year-old boy while on probation for felony convictions.

Cutting a 10-year sentence in half for habitual offender Robert Valan Samuelson, convicted of drunken driving last year, saying it was his last chance to prove he won't drink and drive again. It was Samuelson's third drunken-driving conviction within a year.

"From a prosecutorial perspective, there have been too many chances given to defendants at the risk and safety of the public and gives the appearance of a toothless judicial system as far as this judge is concerned," Carlisle said.

Simms did not return calls for comment.

The public has no recourse for removing a judge who makes poor decisions other than making views known in writing to the Judicial Selection Commission when the judge comes up for retention, Carlisle said. Circuit Court judges serve for a term of 10 years and they can only be removed for misconduct or disability, he said.

Balbirona was arrested last July for violating terms of his probation. When he appeared for a hearing in September, Simms revoked his probation but gave him another four months -- until yesterday -- to comply rather than immediately sending him to jail. According to Arrisgado, since September, Balbirona has met with his probation officer only three times and stopped reporting as of Nov. 17, hadn't completed the 200 hours of community service and did not go through with substance abuse treatment.

Sen. Matt Matsunaga, co-chairman of the Judiciary committee said Simms' latest decision seemed to minimize the severity and the impact the crime has had on the victim. But her actions are a matter of the Judicial Selection Commission, not the Legislature, he said. Judges should not be afraid to rule and just because a judge's ruling is not popular should not be reason for a judge not to keep his or her job, he said.


Honolulu Lite
by Charles Memminger
Friday, January 15, 1999 ** Excerpts **

Simms city a different world

FROM everything I have heard through sources in the legal system, Circuit Judge Sandra Simms seems to be a decent, honorable person. Nevertheless, in view of some of her recent sentencing decisions, I must respectfully ask if she lives on the same planet with the rest of us.

City Prosecutor Peter Carlisle has been gently attacking Simms' recent ruling on Rodney Balbirona, a punk who took part in the beating and robbery of an unarmed tourist. Simms sentenced Balbirona to probation, even though the victim was beaten so badly, his face looked like a Mr. Potato Head with all the pieces in the wrong places.

Balbirona violated probation, which is usually a "go-directly-to-jail" card. But Judge Simms said Balbirona would only have to do 30 days in jail, most of which he had already done waiting for trial. So Mr. Balbirona will be able to enjoy Super Bowl weekend a free man.

SIMMS points out that Balbirona was only convicted of theft, not assault. She chose to, apparently, ignore the fact that Balbirona was part and parcel of the beating and robbery. This is like considering a getaway driver a minor participant in a bank robbery, which they used to do. Now, the law considers the getaway driver a fully vested member of the criminal enterprise.

If two or three guys decide to beat and rob an innocent person, they are equal partners in my book. The fact that they delegate various aspects of the beating/robbery to individual members of the partnership doesn't change the fact that they were equally involved in the venture.

Judges can take all aspects of a case under consideration during sentencing, including evidence that was not admissible during trial, but Simms chose to narrowly interpret Balbirona's involvement and give him yet another pass. She's essentially giving him one more chance to screw up. That means one more innocent person has to be injured before this jerk is forced to pay for his crimes. Seems like Judge Simms is writing a check that some unfortunate citizen eventually will have to cash.

When judges did such things in the past, then-city Prosecutor Charles Marsland would go through the roof. He'd jump up and down and call the judges really bad names. Prosecutor Carlisle, then one of Marsland's chief deputies, knows that kind of reaction is not helpful. So, he has been challenging the judge's recent slap-on-the-hand rulings by calling for mandatory sentences.

Judges hate when their hands are tied by mandatory sentences. But, it is because of rulings like Simms' that legislative bodies strip judges of their power.

Simms has shown she will not bow to public pressure, even though that pressure is coming from people who simply want dangerous criminals -- not drug users, but those who have shown a willingness to seriously injure others -- off the street. Perhaps her fellow robe-wearers will take her aside and explain that if she does not curb her willingness to go easy on street thugs, legislators will be issuing all judges smaller mallets.


Tuesday, March 7, 2000

Perfect Title owner, clients sentenced to probation
Keanu Sai is allowed to argue a case before the Permanent Court of Arbitration

By Rob Perez

A state judge today sentenced the co-founder of the defunct Perfect Title Co. and a husband and wife to five years probation for their roles in the couple's attempt to retake the Aiea home they lost through foreclosure.

But Circuit Judge Sandra Simms denied the state's request to jail the three for 30 days, noting that all three had no prior criminal records. Simms also gave permission to David Keanu Sai, a former researcher and co-founder of Perfect Title, to travel to the Netherlands in July to argue a case before the Permanent Court of Arbitration about the legal existence of the Hawaiian kingdom.

Perfect Title, citing 19th century kingdom law, challenged the validity of land titles in Hawaii before shutting down in 1997.

Sai was convicted in December of attempted first-degree theft for helping Michael and Carol Simafranca try to retake the home they lost in 1996. The Simafrancas used research and documents provided by Sai and Perfect Title to argue they owned the home. The Simafrancas were convicted of the attempted-theft charge, as well as first-degree burglary for illegally entering the residence.

Deputy Attorney General Dwight Nadamoto asked the court to impose probation and jail time, saying the defendants expressed no remorse for the suffering caused to the home's owners.

But Alvin Nishimura, Carol Simafranca's attorney, said the state showed no remorse for the 1893 overthrow of the kingdom and the wrongs that have happened to Hawaiians since.

"Any sentence other than no further action would only be a slap in the face to all Hawaiians who have struggled over the past 100 years," Nishimura said.

In issuing the sentences, Simms noted the defendants' strong beliefs about the kingdom and a growing awareness in the community about Hawaiian sovereignty.

"Sometimes when there's change, (when) there's revolution, it's painful," she said.

After the sentencing, Sai said he was pleased he would be able to attend the Netherlands hearing. "I got exactly what was needed," he said.


Thursday, January 18, 2001

State vows to prosecute violators of tax law

By Debra Barayuga

The co-founder of now-defunct Perfect Title Co., which challenged property titles based on 19th-century Hawaiian kingdom law, will serve no jail time for failing to obtain a general excise tax license or file a tax return.

But state attorneys said they will continue to prosecute those who willfully break the state's tax laws. "The message needs to get out there that if you are doing business and accepting money from clients, you're required by law to pay general excise taxes, get a general excise tax license and file returns, and if you willfully avoid doing that, we're going to prosecute you," said Rick Damerville, deputy attorney general.

Because he has no prior criminal history, Circuit Judge Sandra Simms yesterday granted Donald Lewis, 65, a deferral of his no-contest plea for failure to file a general excise tax return for tax year 1996. She ordered him, however, to complete 50 hours of community service. Lewis also pleaded no contest to his company's failure to obtain a general excise tax license before doing business in 1996.

Under a plea agreement accepted by the court, the state recommended that Perfect Title be fined $25,000, with $21,000 suspended because the company is now defunct and has no real assets, Damerville said. An extra $4,500 seized as evidence from the company will go toward payment of the balance.

Lewis' attorney, Don Wilkerson, said Lewis believes that the 1893 overthrow of the Hawaiian kingdom was illegal and that he did not believe it was necessary to obtain a general excise tax license or file taxes.

Lewis was acquitted in November 1999 on an attempted first-degree theft charge for trying to reclaim an Aiea home for a couple who had lost it through foreclosure.


Sunday, September 21, 2003

Couple gets probation in tax-avoidance case
The pair were clients of a tax preparer, now in jail, who holds that wages are not taxable

Two state corrections officers have been placed on probation after pleading no contest to charges of filing false tax returns.

Circuit Judge Sandra Simms granted motions to defer the pleas of Louis and Sonia Tapu, who pleaded no contest to a single count each of filing a false or fraudulent tax returns.

Louis Tapu's plea involved a tax return for 2000, while his wife's plea was for a 2001 return. Each was ordered to pay $3,312 in restitution to the state and make special contributions to the state general fund of $1,000 and $500 respectively.

If the Tapus comply with the terms and conditions of the deferral order, the charges against them will be dismissed at the end of the probation period and they will not have a permanent criminal record, according to a statement from the Attorney General's Office.

An investigation by the state Tax Department revealed that the Tapus, both 46, filed fraudulent tax returns that were prepared by an employee of RB Tax Service, according to the statement.

The returns took the position that wages are not taxable by the state or federal governments, the statement said.

"That is a position that has been debunked by the courts as frivolous everywhere else in the country," said Deputy Attorney General Rick Damerville.

Even though the couple was advised by the Internal Revenue Service that their position was frivolous, they continued going to RB Tax Service and filing false state income tax returns representing that they were entitled to a refund of all of their withholding taxes for calendar years 2000 and 2001, the statement said.

The owner of the tax preparation service, Richard Basuel, was convicted in July 2002 for filing false tax returns for his clients and was sentenced to six months in prison.

Basuel, 60, was indicted last December by an Oahu grand jury on 23 new tax fraud charges. He was found in contempt of court and his bail was revoked on Thursday after he refused to sit at the defense table when his trial began.


The “Perfect Title” Scam -- Self-Proclaimed Regent of Hawaiian Kingdom Collects Huge Fees, Causes Grief to Property Owners, Messes Up Hundreds of Land Titles over a Period of Several Years, Escapes With Probation and $200 Fine thanks to Judge Simms


Numerous newspaper articles have been published from 2000 through 2003 describing prosecutions of Richard Basuel and his colleagues at RB Tax Preparation, who have helped hundreds of clients evade income taxes on the theory that Hawai'i is not a part of the United States because the overthrow, annexation, and statehood vote were all illegal. The final case above, ruled upon by Judge Simms, was one of the RB cases. Judge Simms' sentence reported on September 21, 2003 was probation and a deferral of a no-contest plea.


Could it be that at least 30 bus drivers have taken inspiration from Judge Simms' lenient sentencing of criminals claiming Hawaiian sovereignty?

30 Bus Drivers Face Tax Evasion

POSTED: 2:45 PM HST November 5, 2003 ** Excerpts **

HONOLULU -- Roughly 30 city bus drivers are under investigation for tax evasion, KITV 4 News has learned.

Two bus drivers have already been indicted. They're accused of not paying any taxes for four and five years. Several dozen other city bus drivers are also accused of not paying state taxes, KITV 4 News learned.

Sources said the drivers told the bus payroll department not to withhold taxes from their paychecks. Some of the drivers claimed they didn't have to pay taxes because they believe in Hawaiian sovereignty and they do not recognize the state or federal governments, according to sources.

One driver, Ernest Fain, a 13-year veteran, is charged with not paying taxes for five years on $246,000 worth of income. Joseph Nuuanu, who has been driving city buses for 30 years, is accused of evading taxes on $201,000 in wages over four years.

"Our system relies on honest, average taxpayers to survive, for government to survive. And if large numbers of our small taxpayers think that nobody's looking at them, so that therefore, it's fair to cheat, they're going to be surprised in Hawaii," Damerville said.

The two indicted drivers are still on the job and sources said more indictments are expected in the weeks and months to come.


On Tuesday, May 11, 2004 both Honolulu daily newspapers reported that the Judicial Selection Commission has DENIED Judge Simms a reappointment. Below are both newspaper articles, followed by an e-mail from Ken Conklin to the reporters.

Honolulu Star-Bulletin, Tuesday, May 11, 2004

Circuit judge is denied retention

Judge Sandra Simms had been said to be too soft on criminals

By Debra Barayuga

Circuit Judge Sandra Simms, who has been criticized for being too soft on criminal defendants, will not be retained for a second 10-year term.

The Judicial Selection Commission issued an order yesterday denying Simms' petition for retention after her term expires May 25. The order does not say why she is not being retained.

Simms, 55, a former deputy corporation counsel and Hawaii's only African-American judge, could not be reached for comment. She is a graduate of DePaul University law school.

Sidney Ayabe, chairman of the Judicial Selection Commission, said he could not comment on the decision because all proceedings before the commission are confidential.

But defense attorneys who have appeared before Simms praised her judicial demeanor and said her rulings are based on the facts of the case and the law, regardless of how it might affect her position on the court.

"She gives everyone who came before her a level playing field," said attorney William Harrison. "She made decisions on what she thought was right and showed a lot of integrity."

While she ruled against him on a number of occasions, "I can always say whenever I walked into her courtroom that she will take time to listen to my arguments, consider the arguments and make rulings," he said. "To basically take her off the bench because she didn't cite cases to some special interest group's liking, I think it's inappropriate."

City Prosecutor Peter Carlisle could not be reached for comment.

Among the cases that sparked public criticism of Simms was that of Jonnaven Monalim, convicted in 1998 of punching and breaking the jaw of a 17-year-old boy while on probation for felony convictions.

Simms' decision to delay Monalim's prison sentence for 3 1/2 months to allow him to "bond" with his newborn son was the appropriate one, said Harrison, who represented Monalim at the time. It had the intended effect on Monalim, who has since been released and is doing well, Harrison said.

An African-American community leader said the decision not to reappoint Simms "sends a terrible message.

"I think it is shameful when you have a person who is a double minority and is not reappointed," said Faye Kennedy, first vice president of the NAACP.

"There are so few African-American jurists, and very few women," said Kennedy.

"It is a sad commentary on the state of a diverse and fair court."

Kennedy said the NAACP sent a letter in support of Simms to the Judicial Selection Committee. So did the Hawaii Women's Political Caucus.

While some people might have found her too lenient, there have been other judges who have made controversial decisions but who remain on the bench, Kennedy said.

Defense attorney Keith Shigetomi, who represented a defendant in 1999 who was given two chances by Simms at probation before she sent him to prison for five years, said the secretiveness surrounding the retention process is unfair to Simms.

No one knows on what basis the commission reached its decision so the accuracy of the information can be tested, he said.

"We're simply left with this decision without explanation. Whether they do or don't tell her in private, it's not for the rest of us to know," Shigetomi said.

He said the perception by many of Simms as being soft on defendants "is totally incorrect, and that's based on people disagreeing with a handful of cases -- and that's not indicative of how she handles her calendar," he said.

Simms has managed to avoid the spotlight in recent years but resurfaced recently when son Richard Simms, 25, was indicted in March for allegedly beating a man and later stealing the car of another man while under the influence of alcohol.

Prosecutors said at the time that their prosecution of the case had nothing to do with the fact that his mother was a judge.

The vacancy left by Simms' departure will likely not be filled until next year because Circuit Court judgeships are subject to confirmation by the state Senate, which does not meet again until January.

Ayabe said the selection commission is expected to post public announcements in the fall to announce the vacancy before interviewing applicants and submitting a list of candidates to the governor.


The Honolulu Advertiser, Tuesday, May 11, 2004

Panel rejects second term for Circuit Judge Simms

By David Waite
Advertiser Courts Writer

The state Judicial Selection Commission has rejected an application by Circuit Judge Sandra Simms for reappointment to a second 10-year term on the bench.

"I was not given any reasons for their decision," Circuit Judge Sandra Simms said.

The commission announced its decision on Simms' reappointment via a notice that was filed with the Hawai'i Supreme Court yesterday morning.

The commission gave no reason for its decision. Chairman Sidney Ayabe said all matters before the commission are confidential and that its rules prevented him or other panel members from discussing why Simms was not retained.

"I was not given any reasons for their decision," Simms, 55, said last night. She said her last day on the job will be May 26.

"I've been honored to serve the community as a member of the judiciary for the past 13 years and would like to thank those who have been supportive of me," she said.

A graduate of DePaul University, Simms was first appointed a District Court judge in 1991 and was appointed to a 10-year term on the Circuit Court bench in 1994.

Several of her decisions while on the Circuit bench were perceived as too lenient and she was once criticized publicly by then-Gov. Ben Cayetano, in May 2000, for sentencing a convicted gang rapist to probation and releasing him from jail.

Cayetano said at the time that anyone with concerns about Simms' rulings should make then known to the Judicial Selection Commission, adding that Simms "will have to answer for her actions if and when she decides to apply for reappointment."

Simms also drew criticism in 1998, for allowing a man convicted of a vicious assault on a 17-year-old boy in Makaha to remain free for three months before starting a 10-year prison term because his wife had given birth to their first child.

Simms was the object of criticism again in 1999 when she allowed a 20-year-old man convicted of theft after the brutal beating of a vacationing Chicago police officer to remain on probation despite violating the probation terms.

City Prosecutor Peter Carlisle could not be reached last night to comment on the decision.

But two Honolulu criminal defense lawyers called the decision "unfortunate" and "a shame."

"She is just one of the nicest and most compassionate people that has been on the bench in years," attorney Michael Green said. "She was hard-working and articulate and always had the time to listen to each defendant, their attorneys as well as the prosecution. I just think it's a shame."

Attorney Richard Wurdeman called Simms' rejection "very unfair."

"I think that overall, she's done a very good job as a judge," Wurdeman said.

Simms said her immediate plans are to travel to Purdue University to watch her daughter defend her Big Ten title in the 400 meter hurdles.

"Life goes on," she said.


** E-mail from Ken Conklin to the two reporters who wrote the articles reporting on the denial of reappointment to Judge Simms **


Thank you for your article regarding the non-renewal of tenure for Judge Sandra Simms.

My own testimony to the Judicial Selection Commission was published in Hawaii Reporter on-line newspaper several months ago, and can also be found on a webpage I created at the same time:

Following the publication of my article, I had several confidential communications indicating that some individuals in the City prosecutor's office and also in SHOPO were sending their own testimony in opposition to retaining Judge Simms. They were concerned that the extreme leniency in sentencing shown by Judge Simms in cases of vicious brutality was undermining the ability of the law to deter violent crime; and Judge Simms' extreme leniency was creating profound loss of morale for prosecutors who spend tremendous effort to get convictions, and for police officers who risk their lives to protect us against violent criminals.

My own special reason for opposing Judge Simms' retention was related to her giving a nod and a wink to non-violent criminals whose fraudulent manipulation of property titles and income tax returns was done for the blatant political purpose of promoting Hawaiian sovereignty by undermining the jurisdiction of the State of Hawai'i and of the United States. I refer to the cases of the Perfect Title Company and of the RB Tax Preparation company (my testimony and webpage on Simms has URLs linking to my other webpages on those two scandals). Here's a paragraph from my webpage explaining my concern over Judge Simms' actions and demeanor at the time she sentenced Keanu Sai to 5 years probation after a jury convicted him of felony attempted grand theft (of a house).


One purpose of sentencing is to assure the public regarding the stability of our government and political system. When a criminal has been convicted of an "ordinary" crime committed for the clearly stated political purpose of undermining our entire system of property law or income taxation, that criminal should be treated more harshly rather than more leniently. In several situations where Hawaiian sovereignty activists have committed criminal acts of attacking valid land titles based on bogus theories of Kingdom law, or helping people evade income taxes on grounds that the U.S. lacks jurisdiction in Hawai'i, Judge Simms gave extraordinarily lenient sentences. In the case of David Keanu Sai, when I personally attended the sentencing, Judge Simms' outrageously lenient sentence (probation) was accompanied by words spoken from the bench, and personal demeanor, indicating sympathy for the difficulties of engaging in political protest or civil disobedience. Juror-nullification is one thing, but judge-nullification is far more devastating. Judge Simms also chose to ignore (and thereby to tolerate and encourage) the blatant disrespect for the Court shown by dozens of Hawaiian activists who packed the courtroom and refused to stand when the judge entered (because they don't recognize her jurisdiction). In the Sai case, and the taxation cases, Judge Simms' attitude seems to be (my inference, not her language): "I understand the noble reasons for your breaking of the law; your courage is to be praised; you have my best wishes; I'm required to sentence you so I'll let you off as gently as possible."


If you'd like more information about the Perfect Title Scam and how extensive it was, please see:

and for more information about RB tax preparation, see:

While I'm sure Judge Simms is a very nice lady, and listens attentively to all sides of a dispute (and I hear she's a terrific cook and she also comes from my birthplace of Chicago), we simply cannot afford to have a judge whose extreme leniency in sentencing aids and abets those who disrespect the law and who actively seek to undermine our government. I found it also amusing that NAACP says the fact Judge Simms is black is an important reason to retain her in office -- I'm sure they would think it terribly improper if someone were to argue the opposite; the fact that she's black is an important reason to deny retention. Likewise the Hawai'i Womens' Political Caucus apparently arguing that the fact Simms is female is an important reason to retain her. Shame on both groups. I would think that if minorities are going to invoke the concept that we need minority role models, they would want such role models to be good ones that attract approval rather than scorn.

Ken Conklin


[Note inserted on webpage by Ken Conklin on May 23, 2004: Here’s a letter to editor by the President of the Afro American Lawyers Association of Hawaii expressing the official viewpoint of that organization that African-Americans should be racially profiled and given sinecures]
The Honolulu Star-Bulletin, Sunday May 23, 2004

Judge's treatment smacks of racism

The Afro American Lawyers Association is disturbed that the Judicial Selection Commission did not retain the only African-American judge in Hawaii, Sandra A. Simms (Star-Bulletin, May 11). We wrote to the commission prior to its decision and pointed out that there are racial problems in Hawaii's judicial system, as was exemplified by Judge Robert Chang's remarks about "niggers in the woodpile" back in the late 1980s. AALA lobbied then-Gov. John Waihee for an African-American judge and he later appointed Simms.

It is no secret that African Americans are placed in a negative light and are ridiculed in Hawaii schools and within the judicial system. Simm's presence changed the way many of those in the Judiciary and in Hawaii viewed African Americans. She was a positive role model and took time to talk with African Americans and other minority groups who aspired to careers in law.

The judges who recently have not been retained have been disproportionately women -- Gail Nakatani, Diana Warrington and Riki May Amano. Simms now joins these statistics. The commission's decision makes the judiciary an exclusive club, one where being black and a woman is not welcome.

Daphne Barbee-Wooten
President, Afro American Lawyers Association of Hawaii


** Note from Ken Conklin, inserted October, 2004 **

Information about how Judge Simms got her original appointment as a judge was revealed by the same Daphne Barbee-Wooten in a small occasional newspaper serving the Latino and African-American community on O’ahu, called “Mahogany” (Vol. 16, No. 4, September, 2004, page 9). It is interesting to compare the above letter of May 23 against the letter in “Mahogany”, where Daphne-Wooten is writing for an audience of “her own” people and is therefore more honest.

Barbee-Wooten writes [emphasis added by Conklin in CAPITALS} “The Afro American Lawyers Association (AALA) is disturbed that the Judicial Selection Commission decided not to retain the only African American Judge in Hawaii, Sandra A. Simms. We wrote to the Commission prior to its decision and pointed out that there are racial problems in the Hawaii Judicial system as was exemplified by Judge Robert Chang’s remarks on television about “niggers in the woodpile” back in the late 1980’s. AALA LOBBIED THEN GOVERNOR JOHN WAIHEE FOR AN AFRICAN AMERICAN JUDGE AND HE SUBSEQUENTLY APPOINTED SANDRA A. SIMMS, A FORMER CORPORATION COUNSEL FOR THE CITY OF HONOLULU. .... As AALA pointed out to the Judicial Selection Commission, WHICH HAS NO AFRICAN AMERICAN MEMBERS, the judges who have not been retained have been disproportionately women ... Our Judiciary has been labeled “dysfunctional.” Now with the Judivial Selection Commission on Judge Simms, THE COMMISSION CAN BE LABELED AS “EXCLUSIONARY.” THEIR DECISION MAKES THE JUDICIARY AN EXCLUSIVE CLUB, ONE WHERE BEING BLACK AND A WOMAN ARE NOT WELCOME. THIS DECISION IS A STEP BACKWARDS, AND WAS MADE ON THE EVE OF THE 50TH ANNIVERSARY OF BROWN V. BOARD OF EDUCATION, WHICH MADE “SEGREGATION” ILLEGAL.”

And so it is clear that Judge Simms was originally appointed by ethnic Hawaiian governor Waihe’e under pressure from the African-American community to fill some sort of imaginary racial quota. Perhaps her leniency toward Keanu Sai and the RB tax defendants was partly due to her feeling a need to repay Governor Waihe’e, who was a sovereignty activist during his term in office and has become even more strident since his term ended in 1994. And now that Judge Simms has been forced out, the president of the Afro American Lawyers Association demands perhaps two tokens to replace her -- one Afro American judge, and one Afro American member of the Judicial Selection Commission. Well, why not? If ethnic Hawaiians can have quotas like 20% of ceded land revenues, and racial set-asides on statewide boards and commissions, then why not also have quotas for African Americans? And how about ethnic Japanese, and Chinese, and Filipinos? And for goodness sake don’t forget the haoles, because that’s MY group!


On Thursday, May 13, 2004 the Honolulu Star-Bulletin published an article by columnist Charles Memminger regarding the decision not to reappoint Judge Simms. Charles Memminger has won numerous awards for his column, which is usually humorous and often insightful. This particular article seems especially appropriate as an obituary for Sandra Simms’ judicial career. The article is compassionate, humorous, and thankful for her career coming to an end -- a difficult combination of thoughts and feelings which this author pulls off with great skill.
Honolulu Star-Bulletin, Thursday, May 13, 2004

Honolulu Lite

by Charles Memminger

It’s no shock that Simms did not get reappointed

It is with no joy and little surprise to learn that state Circuit Judge Sandra Simms will not be reappointed for another 10-year term on the bench.

I've been critical of Simms, but recent disclosures about her son's legal troubles seem to put some of Simms', shall we say, "charitable" treatment of criminals in perspective.

In a state in which judges are notoriously easy on bad guys (the general rule seems to be you have to kill at least TWO people to get life in prison -- and then the governor might pardon you), Simms gave the term "softy" new meaning.

The most notorious of her get-outta-jail-free cards was dealt to a punk who took part in the brutal beating and robbery of a Chicago police officer on vacation on the North Shore. Rodney Balbirona was convicted of theft in that case because he simply stole the victim's belongings while his buddy beat the crapola out of the man. Simms found Balbirona's role in the robbery/beating exculpatory when the rest of the world considered him an equal partner in the near homicide. Simms gave Balbirona probation, which he violated. She gave him probation again, which he violated. And then, to the amazement of just about everyone, she gave him probation a THIRD time. He violated that, too. She finally put him in prison for five years.

Another guy already on probation for a felony broke a kid's jaw. Simms let him stay out of jail for nearly four months so he could bond with his newborn son, which he conveniently sired after the assault.

And, she cut a 10-year drunk-driving sentence in half for man convicted of DUI three times in one year.

Many, including then-Gov. Ben Cayetano, were hard pressed to understand Judge Simms' leniency, bizarre even by Hawaii standards.

Then this year, her 25-year-old son, Richard, was indicted for assault, terroristic threatening, DUI, leaving the scene of an accident and car theft after what can only be called a "hate crime." Richard Simms, who is black, assaulted a Caucasian 17-year-old without provocation, made racial slurs and fled in the victim's car, which he promptly crashed. Turns out Richard had a record of 15 prior arrests on charges including theft and DUI. Hmmm. Theft, DUI, assault ... sounds like the kinds of offenses Judge Mom went easy on.

Is it possible she saw a little of her son in those other defendants standing before her and reflexively gave them a break? I'm no psychologist, but it seems to me that her son's history might have had some bearing on her judicial demeanor, and at the very least, she should publicly have admitted to a conflict of interest.

The Judicial Selection Commission just rejected Simms' application for reappointment. There is no joy in seeing the judicial career of an obviously compassionate jurist come to an end, especially one who faces serious family problems. But there's love and there's tough love. Judge Simms should have practiced a bit more of the latter.


On Sunday, May 16, 2004 the Honolulu Star-Bulletin published an editorial about the denial of another 10-year term to Judge Simms. This editorial got it absolutely right -- the issue is not Judge Simms’ race or gender or pleasant personality -- the issue is that if judges are given discretion in sentencing, then the public has a right to demand that they exercise that discretion responsibly.
The Honolulu Star-Bulletin, Sunday, May 16, 2004



Remove state judges who abuse discretion


State Circuit Judge Sandra Simms has been denied a second 10-year term on the bench by the Judicial Selection Commission.

HAWAII has avoided the pitfalls of California and other states by continuing to allow judges discretion in sentencing criminals. While those states have required judges to impose automatic, punitive prison terms, Hawaii judges maintain some latitude in imposing sentences appropriate to the particular offender. When judges abuse that discretion, as Circuit Judge Sandra Simms did on numerous occasions, the judiciary should have a mechanism for expediently removing them from the bench.

Without comment, the Judicial Selection Commission has denied Simms' petition for a second 10-year term on the bench. Simms should have lost her robe years ago, but judges can be removed during their terms only for misconduct or disability. Those rules should be expanded to provide for removal after a judge has displayed a pattern of abuse of judicial discretion.

The Sentencing Project, a prison research and advocacy group, reports that nearly 10 percent of all inmates in state and federal prisons are serving life sentences, an 83 percent increase from 1992. In California and New York, almost 20 percent of the inmates are serving life terms, at great taxpayer expense, because of laws aimed at getting tough on crime. Too many of those lifers are mentally ill, were convicted of drug crimes and property crimes or are women who killed their husbands after being battered by them.

Much of the harsher sentencing has resulted from mandatory minimum terms, truth-in-sentencing policies and the three-strikes law in California, which a Hawaii citizens panel wisely recommended against in January. Because of judicial discretion, only 6.9 percent of Hawaii's prison inmates have life terms, 2.5 percent less than the national average.

That discretion is jeopardized by judges like Simms.

Appointed to the Circuit Court bench in 1994 by then-Gov. Ben Cayetano, Simms showed up on the public radar in 1997 when she sentenced a 20-year-old man to probation -- he already was on probation from a previous crime -- for stealing a Chicago policeman's suitcase after the man's companion nearly beat the vacationing officer to death on the North Shore. She later resentenced him to 30 days in jail after a public outcry. City Prosecutor Peter Carlisle cited the case in calling for an end to judicial discretion and imposition of mandatory sentencing.

A year later, Simms postponed the six-month prison sentence of a professional boxer convicted of punching and breaking the jaw of a 17-year-old boy at Makaha Beach so the boxer could have time to "bond" with his newborn son. "Having a child is a humanizing experience," Simms remarked.

In recent years, Simms displayed an absurd degree of leniency in cases of companies and their clients claiming that the 1893 overthrow of the Hawaiian kingdom was illegal, thus allowing them to challenge state property titles and ignore state taxes. These were simple cases of theft and tax evasion.


On Sunday and Monday of the Memorial Day holiday, Star-Bulletin investigative reporter Rob Perez published a series of articles on the process of judicial retention decisions, and the newspaper also published an editorial urging greater openness of the decision-making process so that the Judicial Selection Committee should not be totally hidden from public scrutiny. It is unclear whether this second editorial in a short span should be taken as a backing down or mitigation of the previous editorial position supporting the JSC decision that Judge Simms was too lenient and should not be retained. Taking the two editorials together, the Star-Bulletin seems to be saying that they have no quarrel with the decisions of the JSC but the newspaper is a watchdog of governmental action and demands more openness of the process in the future based on the public’s right to know what its government is doing.

Following are excerpts from the Rob Perez series, plus the editorial in full
Honolulu Star-Bulletin, Sunday, May 30, 2004, ** Excerpts **

Rejected judges remain in dark
The judicial retention process in Hawaii favors confidentiality over accountability

By Rob Perez

The state system for evaluating the fitness of Hawaii judges is so secretive that judges facing retention have been nudged off the bench without explanation to the public. The constitutionally mandated confidentiality is applied so completely that the public isn't told when a judge is deemed unfit to serve another term -- unless the panel that evaluates jurists, the Judicial Selection Commission, takes the rare step of issuing a public order denying retention. Even the judges are kept in the dark about why their jobs are ending. When they are rejected, as six have been since 2001, they aren't told why.

The evaluation process is comprehensive enough, however, that jurists -- who are interviewed at least once by the commission before a retention vote is taken -- should have a good idea why they are unable to keep their jobs, according to proponents of the system, which is considered a model by many mainland judges and lawyers. But some Hawaii jurists question whether the secrecy-laden system provides adequate due process and accountability.

In the absence of any publicly stated reasons for a judge's failure to be retained, remaining jurists are left to speculate, creating an uncertain environment that some say can affect judicial independence. Some judges may temper decisions to avoid controversy or delay controversial decisions until after their retention votes, according to some judges and lawyers.

James Dannenberg, a retired district judge, said he knows colleagues who delayed issuing controversial decisions for months until after their retentions were approved. In one case, the delay was more than a year, Dannenberg said. He declined to provide names of the colleagues involved. "I'm telling you the judges I speak to are very nervous about this (system)," said Dannenberg, who still does per-diem work on the bench. "It takes a very good judge to decide, 'I'm not going to be swayed by this.'"

The secretive system also leaves the public unable to gauge how fairly the selection commission, on behalf of the public, does its evaluations, especially in the more controversial retention cases. Because commission proceedings by law are confidential, people basically have to trust that the nine-member panel operates in an even-handed manner behind closed doors, doing work that is vital to the integrity of the judicial system.

"There is, in effect, no way to either validate or criticize the way the JSC handled matters because there is no way to know how those matters were, in fact, handled," said a Hawaii committee of the American Judicature Society in a report last year.

But proponents of the system say confidentiality, besides being required by constitutional and statutory provisions, is essential to soliciting candid comments about judges. If the process wasn't completely confidential, many lawyers would refuse to provide critical testimony out of fear the targeted judge or others on the bench might learn who gave the testimony and retaliate in the courtroom, the proponents say. That fear, they said, is widespread in Hawaii's legal community. "There can be no compromise," said Rosemary Fazio, one of four attorneys on the commission. "If confidentiality is not absolute, the system couldn't function."

Just how secretive the system is was underscored earlier this month when Circuit Judge Sandra Simms became the first Hawaii jurist in more than a decade to be formally denied retention. The commission's public order, which cannot be appealed, gave no reasons for the denial. And Simms said she was given no explanation.

"It's a little bit disturbing," said Simms, who last week completed a 10-year term. During that term, Simms was the target of occasional public criticism for controversial decisions in high-profile criminal cases. Even though the commission during its interviews can question judges about concerns over job performance, Simms said she left her roughly one-hour interview session in early April with no sense one way or the other about her prospects for retention. "If I was in that much jeopardy, at the close of the interview I should have known that," Simms said.

Commissioners declined to discuss Simms' case because of the confidentiality requirements, which puts them in an awkward position. "We are unable to defend our decisions," said attorney Sid Ayabe, the panel's chairman.

David Fairbanks, a lawyer who served on the commission from 1995 to 2001, the last year as chairman, said he believes the retention process is comprehensive enough that a judge should know what concerns the commission has. "The issues are certainly raised, and judges are given an opportunity to address them," he said. But University of Hawaii official Amy Agbayani, who served on the commission from January 2001 to April 2003, the last year as chairwoman, recalled the 2001 case of Judge Diana Warrington, who Agbayani said was surprised by the commission's decision not to retain her. Warrington had no clue her retention was in trouble, Agbayani said. Warrington declined comment.

Dannenberg, the retired jurist, said judges have told him they were put on the spot to address newly raised concerns and considered the process unfair. "They felt blind-sided."

The AJS committee report noted that judges give up the right to due process in exchange for confidentiality. The committee, consisting of judges, lawyers and lay people, recommended that judges be confronted as directly as possible with any negative material that could affect their retention and be allowed to have a follow-up interview session if requested.

But attorney and commissioner Arthur Park said the panel raises concerns in such a way that a source's confidentiality isn't breached, and the judges can then respond to the concerns. Park and other commissioners said they believe the process is fair. "We're very conscious of careers being on the line," Park said. "There's no way we take this lightly."

Since September 1990, when District Judge Marilyn P. Lee's bid for a second six-year term was rejected, Simms has been the only judge to be formally denied retention. But over the past three years, five other judges who submitted retention applications each failed to garner the five required votes -- a majority of the commission -- to keep their jobs. Instead of forcing those judges off the bench, though, the commission let them withdraw their retention applications before the formal rejection orders were filed. Once the applications were withdrawn, the judges retired. While sparing judges the embarrassment of a formal rejection, the practice presents a misleading picture to the public: Namely, that virtually all Hawaii jurists are fit to be on the bench and only leave upon retirement or for other benign reasons.

In two of those five retirement cases, judges Riki May Amano and Sandra Schutte publicly disclosed that they were withdrawing their retention applications after they were told the commission rejected their requests for another term. In the three other cases, involving judges Warrington, Gail Nakatani and David Fong, the public was told only that they retired. Four of the five judges declined comment or didn't respond to requests for comment. Fong could not be reached. Simms also was offered the option to withdraw her application but declined it.

Asked why the commission uses a practice that provides a misleading picture to the public, Ayabe, the chairman, said, "I think that's a very valid point you raise." Stressing that he was speaking personally and not for the commission, Ayabe said the practice of offering judges the withdrawal option balances the public's right to know with compassion for jurists not being retained. In the end, he said, the public benefits by having a judge deemed unfit by the commission off the bench. "The system in my opinion is good," Ayabe said. "If someone can come up with a better one, I'm all ears."

One indication that the system works well, according to lawyers and others familiar with it, is that many people throughout Hawaii's legal community believe the retention process is fairer and less political than what was in place years ago, when the panel was known for political dealings. Even the AJS, a group dedicated to an independent judiciary, noted in last year's report that the current system was excellent, and recommended simply to make it better. And Hawaii's merit-based process garners praise from many legal professionals on the mainland. Simms, despite her rejection, is among those who favor keeping the merit system, though she said some areas need to be improved.

The application is 23 pages long. If a sitting judge in the state court system wants to be retained for another term, the process for gaining approval is a comprehensive one.

Here are the main criteria the Judicial Selection Commission uses to consider whether to approve a judge's application for another term:
>> Integrity and moral courage
>> Legal ability and experience
>> Intelligence and wisdom
>> Compassion and fairness
>> Diligence and decisiveness
>> Judicial temperament
>> Other qualities the commission deems appropriate

The Judicial Selection Commission, the nine-member panel that determines whether judges can keep their jobs, asks the jurists everything from what charitable organizations they are active with to what were the most challenging legal issues they dealt with on the bench. Code of conduct issues get lots of attention.

Judges interested in being retained must apply at least six months before their terms expire. Circuit judges serve 10-year terms, district judges, six years.

Once the application is in, the commission starts a lengthy, time-consuming process to evaluate the applicant's fitness for remaining on the bench. The seven main criteria range from legal ability and experience to judicial temperament.

The commission solicits comments from lawyers, court personnel, parole officers, police officers and others who may have frequent dealings with the judge. Comments from the public also are solicited. All the comments, by law, are confidential, so the judge isn't allowed access to the testimony. The commission also reviews confidential evaluations conducted through a Judiciary-organized survey of lawyers and one just started by the Hawaii State Bar Association.

Toward the end of the review, the panel invites the judge in for at least one interview, during which the jurist is supposed to address any major concerns that surfaced in the information-gathering stages. A majority of five commissioners is needed to approve a retention petition.

Besides handling retentions, the panel's other main job is to come up with qualified candidates who can be considered by the governor or the chief justice, depending on the position to be filled, for appointment to the bench. The nominee must be selected from the list forwarded by the commission and then confirmed by the Senate.

Who's who on the Judicial Selection Commission:

Sidney Ayabe, Chairman
Occupation: Lawyer, partner in Ayabe, Chong, Nishimoto, Sia & Nakamura in Honolulu
Term ends: 2007
Appointed by: Hawaii State Bar Association election

Melvin Chiba, Vice Chairman
Occupation: President/CEO, Kauai Community Federal Credit Union
Term ends: 2008
Appointed by: Senate president

Rosemary Fazio, Secretary
Occupation: Lawyer, partner in Ashford & Wriston's Honolulu office
Term ends: 2009
Appointed by: Hawaii State Bar Association election

John Edmunds
Occupation: Lawyer, partner in Edmunds Verga & Thorn in Honolulu
Term ends: 2005
Appointed by: Senate president

Thomas Fujikawa
Occupation: Retired chief executive, Local Union 1186 of International Brotherhood of Electrical Workers in Honolulu
Term ends: 2009
Appointed by: House speaker

Dr. Philip Hellreich
Occupation: Clinical dermatologist, Kailua Dermatology Associates
Term ends: 2009
Appointed by: Governor

Arthur Park
Occupation: Lawyer, partner in Park Park Yu & Remillard in Honolulu
Term ends: 2005
Appointed by: Governor

Lois Suzawa
Occupation: Assistant vice president, Island Insurance Co. in Honolulu
Term ends: 2007
Appointed by: Chief justice

Lionel Tokioka
Occupation: Board chairman, CB Bancshares in Honolulu
Term ends: 2005
Appointed by: House speaker

Honolulu Star-Bulletin, Monday, May 31, 2004 ** excerpts **

Statistics spur some to say bench is gender biased
Critics allege that women are held to a different standard in Hawaii’s legal world

By Rob Perez

Five of the six state judges who have been bumped off the bench since 2001 were women. That's an attention-grabbing statistic, especially given that female jurists represent only slightly more than a third of the nearly 80 judgeships in the state's judicial system.

Here are the six judges whose retention requests were not approved by the Judicial Selection Commission since 2001. Five of them withdrew their applications after being told their retentions would be denied. Only Judge Sandra Simms, who declined to withdraw her request, was rejected outright:

Diana Warrington, District Family Court, Oahu, Retired November 2001
Gail Nakatani Circuit Court, Oahu. Retired May 2002
David L. Fong, Circuit Court, Oahu, Retired October 2002
Riki May Amano, Circuit Court, Big Island, Retired April 2003
Sandra Schutte, Circuit Court, Big Island, Retired May 2003
Sandra Simms, Circuit Court, Oahu, Rejected May 2004

One of the five was Circuit Judge Sandra Simms, the only jurist in more than a decade to receive a formal retention rejection from the Judicial Selection Commission.

Are women judges held to a different standard than their male counterparts? Or, more broadly, are female attorneys held to a different standard? The question is getting even more scrutiny considering what women judge nominees have faced the past couple of years when rated by the Hawaii State Bar Association.

Of the six women nominees considered by the Senate, which must confirm state judge appointments, only one was rated highly qualified by the bar, according to Sen. Colleen Hanabusa, an attorney and head of the Senate Judiciary Committee. By contrast, nine of the 11 male nominees were rated highly qualified, Hanabusa said.

She highlighted one comparison between two nominees to drive home her concern. Earlier this year the bar rated Simone Polak, at the time a Maui deputy prosecutor, as unqualified for a District Family Court position. The bar cited her lack of Family Court experience, especially in the divorce area, Hanabusa said. Yet the bar last year rated Michael Broderick, former courts administrator, highly qualified for a Family Court judgeship even though Broderick had no Family Court experience, she said. "There's something amiss in all of this," Hanabusa said. "I find it difficult to accept that women who have been nominated as judges are consistently not as qualified and the women judges up for retention are lesser qualified than the men. Something is going on. Maybe this is the 'old boy network' operating."

Despite the bar's concerns, Polak was sworn in as a judge Friday. Broderick joined the bench last year.

Some say the two sets of data -- the non-retentions and the bar ratings -- reflect a gender bias. The fact that men dominate the selection commission -- seven of the nine members, including the chairman, are male -- explains some of the bias, according to those who believe a double standard exists. It is a bias, they say, that considers aggressiveness a positive trait in male attorneys but a negative one in women lawyers. Or that views a compassionate woman judge as being soft on crime but a male judge with the same trait as being caring and wise. "This is certainly a community that is very testosterone-rich," said attorney Susan Hippensteele of the Hawaii Women's Law Center. "Many of us who practice in the courts feel that pressure, that gender bias. It would make sense that there would be no level (of the judicial system) that would be free of that bias."

But those on the other side of the question say the disproportionate number of women jurists getting the nudge off the bench and the seemingly skewed qualification ratings of the bar simply are coincidental. They defend both male-dominated groups as being gender-blind and say if a problem exists, it is at the society level. They point to other data to back their position:

» Twelve women judges have been retained by the commission since 2001, the same number as male judges.

» Four women were among the six candidates the commission forwarded to Gov. Linda Lingle for a new Intermediate Court of Appeals position. Lingle in March picked Alexa Fujise, one of the four. Fujise will be sworn in June 10.

» Twenty-eight women (counting Fujise) hold state judgeships, for 36 percent of the total, compared with 28 percent a decade ago. The percentage of women judges slightly exceeds the percentage of women -- 31 percent -- in the attorney population in Hawaii.

» The state bar last year for the first time elected a woman, Rosemary Fazio, to serve on the powerful selection commission.

Attorney Mei Nakamoto, a liaison to the commission for Hawaii Women Lawyers, said she has no reason to believe the panel is biased against women. "I don't see any indication of gender bias," Nakamoto said.

In fact, three of the five cases involving the female jurists who weren't retained happened while University of Hawaii official Amy Agbayani, known as a strong advocate for women and minorities, was on the commission, including a year she spent as chairwoman.

Agbayani said she would like to think the commission was more sensitive to gender issues during her watch, and she believes all women jurists, those who were retained and those who weren't, got fair treatment while she was there. Still, more needs to be done to eliminate gender bias, Agbayani and others said. "I think the commission is no worse than any other institution," she said.

Current commission members say no double standard exists. "You have to judge each judge by the rules we have," said Fazio. "You can't just compartmentalize this. If there was a bias, it would show up everywhere," said attorney Arthur Park, another commission member. But that isn't the case, he added. Dale Lee, president of the bar association, said the bar is concerned about the differences in its qualification ratings and has a committee reviewing the issue at Hanabusa's request. But he believes the differences are coincidental. "I'm absolutely clear that there is no double standard at the bar level," Lee said. He didn't respond to a request to explain why Polak and Broderick were rated differently.

What do women judges, sitting and retired, think of the notion of gender bias in the Judiciary? Most of the ones contacted by the Star-Bulletin, including four of the five women bumped off the bench, were unwilling to discuss that and other retention issues. Simms said the question of why mostly women have not been retained in recent years is a legitimate one to explore. "The numbers are there. That's what you have." While Simms was the only one of the five to formally get the boot from the commission, the other jurists were told that they would not be retained and were given an opportunity to withdraw their retention applications. They did so and subsequently retired.

The Honolulu Star-Bulletin, June 1, 2004, EDITORIAL

Make judicial commission accountable to public


Five of the six judges who have been denied additional terms during the past three years are women.

HAWAII'S judiciary often acts in mysterious ways, largely because much of its activity is secret. The decision of whether to retain a judge for an additional term is entirely cloaked, opening the system to charges of discrimination. The system should allow a modicum of explanation for rejection of extra judicial terms to provide public accountability.

Five of the six judges who have been denied extra terms by the Judicial Selection Commission since 2001 are women, and the most recent reject -- former Circuit Judge Sandra Simms -- is black. Her rejection prompted a letter to this newspaper by Daphne Barbee-Wooten, president of the Afro American Lawyers Association of Hawaii, suggesting both sex and race discrimination were the reason for Simms' rejection. Faye Kennedy, first vice president of the NAACP, called the rejection "shameful."

The nine-member commission conducts a lengthy evaluation of a judge after being notified at least six months before the term expires that the judge wants another -- 10 years for circuit judges, six for district judges. Near the end of the review, the judge is invited for at least one interview. Simms says she left her single interview with the impression that she was not "in that much jeopardy" and was not given an explanation.

That's hard to believe. In high-profile cases, Simms displayed leniency in sentencing that was roundly criticized as taking judicial discretion to new extremes. It would be surprising if that conduct were not the reason for the rejection of her serving another term on the bench.

Simms is the only judge recently who was formally rejected. The other five were advised that they would be rejected and given an opportunity to save face by withdrawing their applications for another term. Two of those -- Riki May Amano and Sandra Schutte -- publicly disclosed that they had received such notices. The public was told only that the other three identified by Barbee-Wooten as having been rejected -- Diana Washington, Gail Nakatani and David Fong -- had retired from the bench.

Fong had been accused of financial impropriety for a judge, but the public has no indication why the others were rejected. Amy Agbayani, a commission member from 2001 to 2003, told the Star-Bulletin's Rob Perez that Warrington had no clue that her retention was even in danger until being told outright that she would be jettisoned.

A Hawaii committee of the American Judicature Society, an organization of judges, lawyers and other citizens, pointed out last year that there is no way to evaluate the way the Judicial Selection Commission handles the reappointment of judges "because there is no way to know how those matters were, in fact, handled." The committee added that judges give up the right to due process in exchange for confidentiality. The arrangement compromises the public's right to know how the government is functioning, a right that should be restored.


During the mayoral election campaign in Fall 2004, an internet newspaper reported accusations of criminal activity against the wife of mayoral candidate Duke Bainum. The reports about Bainum’s wife were protested as being a smear. Ken Conklin published an article defending the publication of information about Bainum’s wife as being appropriate to help the public judge the character and judgment of the mayoral candidate, just as the Star-Bulletin and other newspapers had recently published news about Judge Simms’ son’s criminal activities at a time when the Judge was a candidate for reappointment to the bench. That article comparing the Bainum and Simms “smear” issues is copied next. OR

'Smearing' Public Figures By Reporting the Behavior of Family Members

By Kenneth R. Conklin
Hawaii Reporter (on-line newspaper); November 17, 2004

Is it right for the press to "drag family members" into political campaigns? Is it right to "smear" a political candidate or public figure by pointing out the bad behavior of family members or close associates? Is it right to focus the media spotlight on "innocent" people who just happen to be family members or friends of a controversial public figure? Was it a smear of mayoral candidate Duke Bainum when Malia Zimmerman published unsavory facts and court documents pertaining to Bainum's wife Jennifer?

I, Ken Conklin, know what it is like to be smeared, so I am sympathetic to complaints of it. Hawaiian sovereignty activists like to call me names and spread lies about me because I oppose their evil political agenda. They try to discredit me personally rather than to debate the facts and logic in the essays I write. None other than University of Hawaii President Evan Dobelle publicly smeared me by by repeating in the mass media a lie circulated by professors at the Center for Hawaiian Studies that I do not have a Ph.D., even though Dobelle himself had access to my college transcripts on file at his own university. Fortunately reporter Bob Rees investigated, verified my credentials, and publicly corrected Dobelle's smear. See Rees' article from the Honolulu Weekly, with my own commentary, at Anyway, I consider smear tactics to be unethical and unscholarly. But was it a smear to publish facts and court documents disparaging the wife of mayoral candidate Bainum, at a time when Bainum was seeking election?

The Honolulu Star-Bulletin has an interesting self-contradiction in its own editorial practices regarding smears.

The Honolulu Star-Bulletin on Tuesday Nov. 16, printed a lengthy story about a no-contest plea entered by a 25-year-old criminal with a long rapsheet; see: That story probably would not be newsworthy (there are so many like him) except for the fact that the criminal is the son of ex-judge Sandra Simms, whose de-frocking was a high profile news story half a year before. The Honolulu Star-Bulletin also published an article in March reporting the indictment of the judge's son and reminding readers that he is the judge's son, at the same time when the Judicial Selection Commission was considering whether Judge Simms should be retained in office. For the March article, see Was that a smear? I believe the March news article was not a smear because it was relevant to judging the judge at a time when her character and performance were legitimately under scrutiny (I'll explain that relevance below). But the November article borders on being a smear because mother Simms is no longer a candidate for office and her son's criminal activities are not particularly noteworthy by contrast to the activities of other criminals whose crimes are more serious and more numerous. The November article is merely rubbing salt in the wounds of a dysfunctional family for the purpose of stimulating the morbid curiosity of the public to take pleasure in someone's pain.

The editor of that same Honolulu Star-Bulletin just nine days previously, on Nov. 7, criticized an alleged smear of Honolulu mayoral candidate Duke Bainum, and defended its editorial decision not to publish information about the story before the election: see

The alleged smear occurred when Malia Zimmerman, investigative reporter and editor of Hawaii Reporter online newspaper, had published a series of articles including court documents and details related to claims of immoral and possibly illegal activities a few years ago by Bainum's new wife. The following two articles constitute Malia Zimmerman's reporting, which the Honolulu Star-Bulletin considers a smear:

"Controversy Surrounds Final Years of Life of Masumi Murasaki and His Caregiver, Jennifer Alonso-Toma, Now Wife of Mayoral Candidate Duke Bainum" Hawaii Reporter, October 18, 2004

"Public Record Documents in the Case of Jennifer Bainum vs. Masumi Murasaki" Hawaii Reporter, October 25, 2004

Malia Zimmerman wrote a brief defense of her work as not being a smear, and pointing out that calling it a smear is itself a smear against her and '''Hawaii Reporter''':

"Anatomy of a 'Smear'" Hawaii Reporter, Nov. 12, 2004

The story about Bainum's new wife's activities circulated widely over the Internet, but the Honolulu Star-Bulletin regarded it as a smear and made an editorial decision not to publish either the story itself, or the story about the impact the story was having on the election. The Honolulu Star-Bulletin editor said "Further, the issue had nothing to do with the mayoral race." Yet the story about Bainum's wife is just as relevant to judging Bainum's ability to judge people and exercise leadership as the story about Richard Simms is relevant to judging his mother's competence to be a judge (be patient; I'll explain that relevance soon).

The crimes and court appearances of Richard Simms are much less serious and less numerous than the crimes and court appearances of other criminals whose stories are never told in the Honolulu Star-Bulletin. The Honolulu Star-Bulletin's singling out of Richard Simms and his mother, ex-judge Sandra Simms, could easily be regarded as a "smear." It's unclear which one -- the mother or the son -- is being smeared by association with the other, since each of them has a bad reputation that could rub off on the other. Linking mother and son in a negative newspaper article in November may no longer be appropriate, since mother is no longer a public figure under consideration for a decade-long judicial appointment.

However, it was entirely appropriate to publish articles about the criminal charges filed against Richard Simms, and his criminal history, at the time his mother Sandra Simms was under consideration for reappointment to the bench. That's because the tendency of a judge to give severe vs. lenient sentences is a permanent part of her character, obviously related to the tendency of a mother to be strict vs. excessively coddling in the way she raises her child. Mother Simms probably let her boy "get away with murder" and only gave him warnings which she seldom enforced by punishment, just as Judge Simms gave sentences of probation to perpetrators of serious crimes and sometimes failed to give them jail sentences even after they violated probation or committed additional crimes. Fairly or unfairly, society judges parents' values and parenting skills by the way their children behave. If a child turns into a criminal, it seems appropriate to doubt whether the mother has a good value system and/or whether the mother has the ability to exercise authority in a way that will shape the child in accord with that value system. Either way, a person's values and ability to manage her own children are clearly relevant to the public's assessment of her suitability to be a judge, where she will be expected to uphold society's values and manage the criminals through the sentences she gives them.

The Honolulu Star-Bulletin's handling of news about Judge Simms and her son sets an example that contradicts that newspaper's claim that Malia Zimmerman smeared Duke Bainum by publishing articles about his wife. If it was proper for Honolulu Star-Bulletin to publish the article about Richard Simms' indictment (remember, not yet proved guilty) in March, when Judge Simms was being considered for a 10-year extension of her judgeship, then is was clearly proper for Hawaii Reporter to publish the articles reporting accusations filed in court documents about candidate Bainum's wife at a time he was being considered for a four-year term as mayor. A mayor must be a good judge of character and choose subordinates whose ethics are beyond reproach; thus, if a candidate recently married someone whose character is reprehensible, it would be a factor the public should know when deciding whether to vote for him. Also, a mayor whose wife will be subjected to ongoing disparagement and scandal would be crippled in his ability to give full attention to his job, much like a judge whose son is constantly in trouble or a candidate for high office whose poor health saps his energy and concentration.

The Judicial Selection Commission had published in January its usual request for public comment regarding whether a judge should be retained in office for another term of 10 years. The JSC advertisement appeared in the Honolulu Star-Bulletin along with other newspapers. Judge Simms had attracted notoriety and public outrage because for many years she had repeatedly given extremely lenient sentences to criminals convicted of serious crimes, both non-violent and violent. Her sentencing grievously undermined the credibility of law enforcement -- potential criminals were not deterred by any expectation of severe sentences, police and prosecutors felt loss of morale because all their hard work was wasted, and the public felt betrayed. Judge Simms was clearly treating criminals in her court the same way she had treated her son in her own home -- with excessive leniency leading to no fear of consequences. The Honolulu Star-Bulletin had published numerous articles for several years describing Judge Simms' excessive leniency in sentencing. For details about the denial of retention in office for Judge Simms, and her history of excessive leniency in sentencing, see:

In March, during the period when the Judicial Selection Commission was considering whether to retain Judge Simms in office, the Honolulu Star-Bulletin published an article about the indictment of her son Richard on several criminal charges. The newspaper article repeatedly noted that Richard is the judge's son. The March 18, 2004, article has the title "Judge’s son accused in beating" and can be seen in its entirety at Here are excerpts illustrating the Star-Bulletin "smear" of Judge Simms by associating her with her son's then-only-alleged criminal activities. These excerpts show that the Honolulu Star-Bulletin's editors do not consider it a "smear" to link the judge to her son's criminal behavior (and I agree this is not a smear).

"The son of a circuit judge has been indicted on charges of assault and car theft stemming from a confrontation last month in Mililani. Richard Simms, 25, son of Judge Sandra Simms, was charged yesterday by an Oahu grand jury with second-degree terroristic threatening, third-degree assault, car theft, driving without a license, driving while intoxicated and fleeing the scene of an accident. He faces a maximum five years in prison for each of the most serious offenses: fleeing the scene and car theft. ... Judge Simms, whose 10-year term expires in May and who has asked to be retained, declined comment, according to a Judiciary spokeswoman. Richard Simms could not be reached for comment."

In May the JSC made public its decision that Judge Simms should not be retained. The Honolulu Star-Bulletin reported that story on May 11 at and included the comment that "Simms has managed to avoid the spotlight in recent years but resurfaced recently when son Richard Simms, 25, was indicted in March for allegedly beating a man and later stealing the car of another man while under the influence of alcohol. Prosecutors said at the time that their prosecution of the case had nothing to do with the fact that his mother was a judge." Once again, the Honolulu Star-Bulletin is reporting the son's behavior because it is a reflection on his mother, at least in the eyes of the public. Either that newspaper reports that fact at that time because it considers the fact relevant, or else the neswspaper is committing a smear by reporting a fact it considers irrelevant but knows will cause the public to disrespect the ex-judge.

Finally, on Nov. 16, 2004 the Star-Bulletin reports that Richard Simms has pleaded no-contest to most of the charges against him. And the newspaper article prominently mentions the now-irrelevant fact that he is the son of ex-judge Sandra Simms, thereby "smearing" her by association with him at a time six months after she was no longer under consideration for public office, and also smearing Richard by association with his mother who was defrocked because of her poor judgment.

Here are excerpts focusing on the smear, taken from the full article at whose title is a smear all by itself: "Former judge’s son pleads no contest to assault"

"The son of a former Circuit Court judge has pleaded no contest to assaulting a passer-by and stealing the car of another man after leaving a Mililani restaurant/bar while intoxicated earlier this year. Richard Henry Simms, 25, admitted yesterday that there was sufficient evidence to charge him with second-degree terroristic threatening, third-degree assault, driving without a license, fleeing after striking an unattended car and car theft in a series of incidents on Feb. 2 and 3. ... Simms is the son of former Circuit Judge Sandra Simms, who was denied a second 10-year term earlier this year."

Incidentally, it should not escape notice that the prosecutor is himself guilty of the same sort of excessive leniency as Judge Simms was both in sentencing criminals and in raising her son. Amazingly, the prosecutor, who has a duty to protect the public and seek a sentence commensurate with the crime, is requesting only probation and no jail time for this repeat multiple offender guilty of violent crime. Is the prosecutor's inappropriate leniency due to some vestige of respect for the ex-judge, which would be irrelevant to this case? Or is it due to the typical leniency of our courts which the public finds so disgusting? These excerpts from tell the tale:

"Defense attorney Rustam Barbee said Simms will ask for a deferral of his no-contest plea. If the request is granted and he stays out of trouble for a specified period, Simms will have an opportunity to erase the charges from his record. Deputy Prosecutor Randal Lee said he will oppose Simms' request and will ask instead that he be sentenced to probation with no jail time. ... Simms has 15 prior arrests including theft, driving while intoxicated and liquor violations. He was previously granted a deferral of his plea to fourth-degree theft -- a case that was dismissed in July 2000 after he complied with court-imposed conditions."


In what may be a final epitaph on publicity regarding Judge Simms and her son, the Honolulu Star-Bulletin reported on the sentence given to Richard Simms on Wednesday, March 2, 2005
Honolulu Star-Bulletin, Thursday, March 3, 2005

Assault, theft bring judge’s son 8-day term
Richard Simms also gets probation for the Mililani attack

By Debra Barayuga

The son of a former judge was sentenced yesterday to eight days in prison and five years' probation for threatening and assaulting an innocent passer-by and then stealing the car of another man who stopped to help.

Richard Simms, 26, pleaded no contest Nov. 15 to second-degree terroristic threatening, third-degree assault, driving without a license, striking an unattended vehicle, driving while intoxicated and auto theft.

The charges stemmed from a series of incidents on Feb. 3, 2004, when he taunted, then assaulted a 17-year-old boy outside the Shack, a restaurant/bar in Mililani.

He then jumped into the car of a man who had stopped to help and drove off, crashing the car a short distance away. He was caught hiding in nearby bushes by police.

Simms, son of former Circuit Judge Sandra Simms, apologized and expressed remorse for the impact the incident has had on his family and the victim, Justin Ashe.

Circuit Judge Michael Wilson said that although the police reports show two of Simms' friends were involved, he was the one who provoked it and was the prime contributor.