Should Judge Sandra Simms Be Retained in Office for Another 10 Years?

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“Kenneth Conklin Image”

Advertisement in ”’The Honolulu Advertiser,”’ Sunday
Jan. 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 Web site at


On Jan. 7, 2003 I submitted my testimony
by email to the following address, obtained after
calling the JSC office (no email address is provided
on the Web site, and the secretary seemed dumbfounded to
think anyone would want to communicate with JSC by


To: Judicial Selection Commission, State of Hawaii

From: Kenneth R. Conklin, Ph.D

Re: Petition for Retention in Office of Judge Sandra

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
Hawaii to ten more years of her presence on the

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

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 Hawaii is tourism.
Judge Simms’ extreme leniency in sentencing local
hoodlums who beat up a tourist at a north shore Oahu
bus stop was reported in the victim’s hometown media,
causing future tourists to question the wisdom of
coming to Hawaii.

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 Hawaii,
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

Following are several newspaper reports and
editorials from spanning more than five years,
1998-2003, illustrating the points raised above.
There are also two Web pages 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


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

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

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


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

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

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

“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


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

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


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

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

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


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

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 Hawaii 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


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

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

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.

”’Kenneth R. Conklin is an independent scholar in Kaneohe, Hawaii. His Web site on Hawaiian Sovereignty is at:”’ ”’He can be contacted at:”’

”’ reports the real news, and prints all editorials submitted, even if they do not represent the viewpoint of the editors, as long as they are written clearly. Send editorials to”’