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Way too much of the best work ever turned out by the California Court of Appeal was written by Justice Robert Gardner. You don’t have to take my word for it. You can review the two articles that the Santa Clara University Law Review devoted entirely to his work [1] — articles written by students he didn’t know at a school he didn’t attend in a county he seldom so much as drove through — and see for yourself. He is also the only man I’ve ever known who could accurately be described as an enfant terrible at the age of 86. He retired from the Fourth District in 1981. Under duress. The state of California was big on compulsory retirements then, and Bob had reached the magic number. As Bob tells the story, a guy from the AOC showed up and put a gun to his wife’s head (her survivor benefits would be forfeited if he did not retire) and he suddenly found himself unemployed. But Bob landed on his feet. The author of a published book on body surfing, he somehow talked himself into a job as the chief justice of the High Court of American Samoa, which, he had noticed, had beaches. There he spent four years soaking up sun and sorting out Samoan property disputes (all I remember about this is that Samoan property descends in the female line and the “records” he encountered were primarily oral and anecdotal) before coming home to do pretty much the same thing on assignment in Newport Beach. All this comes to mind now because I’ve just read about a guy named Jesse Bogdonoff who handled the transition from Mainland Suit to South Seas Mucky-Muck with considerably less aplomb than Bob Gardner. As they say in Australia — which is itself a South Seas island — he “made a meal of it.” The story begins in 1994 with Bogdonoff employed by Bank of America to call people up and persuade them to take money out of their T-bills and savings accounts and invest it in “investments with a higher rate of return.” [2] Since my only connection with the stock market is watching it devour my retirement funds, I can’t claim to have any real expertise in such things, but this strikes me as the financial equivalent of the Fuller Brush man: You show up at the door with a pocketful of toilet brushes and mops and try to convince the homeowner that the house is a lot dirtier than he thought. I suspect it was not Bogdonoff’s dream job. Until he ran across the Tonga Trust Fund. Has a nice ring to it, doesn’t it? The Tonga Trust Fund. Tonga is a kingdom [3] of about 112,000 souls. [4] Its chief export, according to the Los Angeles Times, is baby squash. As far as I know, Tonga is the only place in the world whose chief export is baby squash. I’m not sure about this, but I think you’re better off is your chief export is baby diamonds or baby uranium or baby manganese. Baby squash seems a terribly slender reed from which to hang an economy. This may explain why kingdom officials devote a large number of bytes on their Web site to trying to lure business. If you move your business there, they will give you a 15-year tax holiday, but they seem to be a little short on paved roads and electricity, so it would probably be best if your business didn’t require those things. Bogdonoff says there were pigs loose in the streets the first time he visited. And they had $20 million in a trust fund in Bank of America. Tonga, that is, not the pigs. So how did they get $20 million in trust selling baby squash to the Ritz Carlton? Turns out during the ’80s, Tonga somehow hit on the idea of selling passports to Hong Kong residents who feared the loss of travel privileges when the former colony reverted to Chinese control. Voila! Twenty million dollars. Tonga was inexplicably reluctant to transform this money from a trust fund into the ante in a high-stakes poker game. Bogdonoff made a few phone calls (“Excuse me, my name is Jesse Bogdonoff; I work for Bank of America … in San Francisco … 11 time zones from you. I’d like to speak to the king, please.”) and got nowhere. So he flew to Tonga. After wending his way through the aforementioned pigs, he was granted an audience with King Taufa’ahau. According to Jesse, they “hit it off.” Long story short, Bogdonoff flew home drenched in the $20 million worth of rain he had made and with no greater care in the world than what kind of Champagne would be served at the party in his honor. Well, all went well for about five years. Bogdonoff says he made $11 million for Tonga. [5] But he was still a Bank of America employee. This is not one of the more obvious roads to spectacular wealth. And under the terms of his employment contract, he couldn’t just fly the coop and take Tonga with him. B of A was apparently willing to let its money managers grab a single brass ring by taking employment with one of its clients, but it wasn’t willing to let them jump ship with a whole handful of rings. [6] So its employment contract prohibited Bogdonoff from making Tonga’s business his own unless he went “in house.” No problem. As Jesse explained to the king, he was perfectly suited to an “in-house job” with the kingdom of Tonga. In fact, he had his eye on a position the king had not previously filled. Court jester. Honest. According to the Times, “In April 1999, according to a royal decree Bogdonoff asked the king to draw up, he became ‘King of Jesters and Jester to the King to fulfill his royal duty sharing mirthful wisdom and joy as a special goodwill ambassador to the world.’” The Times doesn’t disclose how much the court jester gig pays. It does mention that Jesse signed another deal — after he had been “employed” as Tonga’s court jester for two months — as adviser to the Tonga Trust Fund at a salary of $250,000 per year. So let’s review. Jesse Bogdonoff went from worker bee in the A. P. Giannini hive to court jester/trust fund adviser plenipotentiary of the Kingdom of Tonga in the space of 60 days. This is very cool. I’m sure all you Horatio Alger fans are loving this story. Unfortunately, it has a sad ending. Litigation. Yeah. Turns out Jesse put 20 million of Tonga’s 26 million eggs into a single basket … er, company … called Millennium Asset Management, which planned to make gazillions of dollars “purchasing life insurance policies from senior citizens.” You and I can’t begin to fathom how this works, but we shouldn’t feel bad about that: neither did Millennium. They fell a little short of the $6 million return on investment Jesse predicted. Twenty-six million short, to be exact. Tonga lost the whole $20 million. Tonga seems upset that they came out of this deal worse than Jesse, who admits he received commissions from Millennium on the $20 million. And, of course, his paycheck from Tonga. According to Tonga’s lawsuit against Jesse, ” a second investment was in a company whose stock is now worthless. Another investment involved a high-tech startup that has since filed for bankruptcy.” Funny stuff, huh? Tonga’s still waiting for the court jester to deliver on the punch line. Jesse’s response to the lawsuit is that it is “frivolous” and an “expression of the incredible incompetence and political intrigue of the children of the royal family. It’s typically Tongan.” Yeah, leave it to those humorless Pacific Islanders to get all worked up over a paltry $26 million. As near as I can make out, Jesse’s defense is insanity. He’s pictured in the Times wearing a jester’s outfit (complete with velvet robe and multi-pointed jester hat). He says he’s getting out of the portfolio-crashing business and going into music. “He has his own sound, which he describes as ‘a funky, jazzy fusion.’” He says, “I’m gonna keep the identity. There’s a certain amount of notoriety,” which may help record sales. Looks to me like the insanity defense is a good one. We had a county controller here in Orange County whose career in portfolio destruction greatly resembles Jesse’s. Basically, he sat down at a card table in his penny loafers and argyle sweater to play poker against a bunch of guys wearing green eyeshades and dealer’s cuffs. The other players were very helpful. They gave him a sheet of paper on which they had written the hierarchy of poker hands: full house beats flush, flush beats straight, straight beats three-of-a-kind, etc. He was doing real well for a while. Then, just when all the money was in the pot, he got dealt queen, ten, eight, six, deuce. All the eyeshade guys looked stricken. They clucked sympathetically and explained to him that he had been unfortunate enough to be dealt a mafuffnick, the only hand in poker worse than aces and eights. It required him to forfeit all his money, all the county of Orange’s money, all the school districts’ money, all the money of the parishioners where he went to church, his firstborn child and his pants. The county had to declare bankruptcy. And lack of pants. Bad luck, eh? The controller’s plea was profound ignorance — Ignorance of Previously Unplumbed Depths — which, paradoxically, rose to the level of insanity. I think that’s how it went. I can’t remember exactly what his punishment was, but I remember thinking it was enlightened, humane and would not cause him to miss any of his favorite soaps. This is what Jesse Bogdonoff should plead. Yeah, I know it’s a civil suit, but what better evidence that our boy Jesse has been non compos mentis through all this than if he shows up in his jester’s suit and responds to a civil suit with a plea of not guilty by reason of insanity? The only flaw in this plan is that Tonga probably has stronger evidence than Jesse of mental incapacity. I mean, Tonga invented the job of court jester/financial adviser for him. That alone should suggest its national driveway doesn’t reach all the way to the proverbial street. If I were a criminal lawyer with a client who had done anything as crazy as that, I’d probably advise him that he was clearly immune from execution under the Supreme Court’s recent Atkins v. Virginia decision, which bars execution of the mentally disabled. So I see this as a contest in which some poor trier of fact is going to be confronted with two parties who obviously have trouble keeping both oars in the water and is going to have to figure out which one to throw out of the boat. It’s going to be complicated by the fact one is wearing a king uniform and the other is wearing a jester’s hat and a Rolex. All in all, it sounds like “Monty Python” meets “The Weakest Link.” Too bad Bob Gardner is body surfing in Corona del Mar these days. He’s always been good at picking out weak links. And he knows how to laugh. Whoever tries this case will have to do both. Contributing writer William W. Bedsworth is an associate justice at the Fourth District Court of Appeal in Santa Ana. He writes this column to get it out of his system. He can be reached at [email protected]. [1] “A Gallery of Gardner,” 19 Santa Clara L Rev 925 (1979) and “Gardner: The Second Gallery,” 24 Santa Clara L Rev 901 (1984). [2] Of course, this is a euphemism for “investments with a higher rate of risk,” but if you describe them like that, you spend a lot of time listening to dial tones. [3] That’s right, a kingdom. Nice looking man whose subjects — judging from his picture on the Web site — must expect him to wear a lot of gold braid. [4] The Tonga Web site lists a population of 105,600 as of July 1995. Apparently, it hasn’t cared enough to recount since then, and with a growth rate of 0.78 percent, there’s hardly a pressing need for a new census. [5] Tonga says it was more like $6 million. As we’ve learned of late, it seems to get harder to keep track of money when there are large sums of it involved. Just ask Arthur Andersen. [6] Feel free to mix and match metaphors here as you wish. You might also want to throw in a Phil Jackson reference if you’re a basketball fan.

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