Justice Marcel Poché has spent his 20 years on the First District Court of Appeal earning the title "The Great Dissenter."
Considered smart and independent, lawyers who know Poché say the Jerry Brown appointee earned that moniker after spending much of the 1980s and early '90s disagreeing with his more conservative Division Four colleagues.
"I probably set the record for dissents," Poché admits, describing how in the early years, with just one research attorney and no computer, he would punch most of them out on his typewriter.
Lawyers who know him say Poché's headstrong ways also helped earn him a reputation as one of the brightest judges on the court of appeal.
"He has been one of the smartest justices on the court of appeal and that is still true today," says a former First District staff attorney.
Poché's First District colleague, Justice J. Anthony Kline, agrees: "He is one of the finest appellate judges in the state."
Poché is also considered by many to be one of the best writers on the bench and one of the few justices whose voice still comes through in an opinion.
Poché seems proud of his number of dissents -- neither he nor his staff know exactly how many he has written -- and gripes little about his years of being the odd man out in Division Four. "It wasn't mud wrestling," he says.
Some lawyers say Poché's dissents have subsided in recent years thanks to turnover in Division Four, but others think he is writing as many as ever.
"Life got a lot easier [for Poché]," says one appellate attorney.
To his credit, the California Supreme Court has agreed with a couple of Poché's notable dissents, including Isbister v. Boys Club, 40 Cal.3d 72 (1985), where Poché alone maintained that the Santa Cruz Boys Club, which did not allow girls, was a public accommodation and could not discriminate on the basis of sex.
Because of the decision, "little girls are swimming all across the country right now," says Poché.
The justice has come a long way since he was Jerry Brown's dorm adviser at Santa Clara University. When Brown became governor in 1974, Poché -- then a law professor at Santa Clara -- served as his legislative secretary. Brown later nominated Poché to the Santa Clara County Superior Court in 1977 and to the court of appeal in 1978.
Perhaps Poché's only political setback came in 1982, when then-Chief Justice Rose Bird blocked his attempt to get a Sixth District Court of Appeal formed in San Jose, near his home. The Sixth District came to be in 1984, but Poché is still commuting to the San Francisco-based First District. And at 66, he says he has no plans to retire.
In fact, this May Poché will return to the Santa Clara County Courthouse to preside over People v. Avant, 34423, possibly the highest-profile trade secrets theft case ever to be heard in a Silicon Valley courtroom.
Because of a shortage of judges, Santa Clara Superior Court Presiding Judge Jack Komar asked Poché to oversee the six-month trial.
Poché's fondness for the courtroom is evident to anyone who has watched him in oral argument.
On a recent afternoon, an attorney arguing before Division Four got a taste of Poché's penchant for courtroom banter.
Arguing that his Maryland client could not be sued in a California court, the lawyer told Poché and the other justices that his client's former lawyer, and not his client, was responsible for a California business transaction.
"If I go out and hire an agent and give him carte blanche, can I say I didn't know the gun was loaded?" Poché asked the attorney.
After more argument from the lawyer, Poché said: "I don't want to play cases with you, but doesn't California have an interest in protecting its citizens from being defrauded in other states?"
After 10 minutes of back-and-forth argument the smoke finally cleared. Poché leaned back in his chair, smiled, and said to the attorney: "I've enjoyed this, thank you."
