New Magistrate Judge Took Unconventional Path to Federal Bench

By Jim Houpt

A new United States Magistrate Judge has taken her place in Sacramento's federal court. If it was not obvious before her March 28 investiture, the standing-room-only crowd and the overflow outside the ceremonial courtroom show that the Eastern District Judges made a popular appointment in elevating Sacramento Attorney Kim Mueller to a judgeship.

Judge Mueller's new colleagues gave her a round of applause at her investiture.

Judge Mueller's judicial demeanor, sharp intellect, and diplomatic skills seemed to destine her for the opening created by the retirement of Magistrate Judge John Moulds. But, like others who have discovered law after another career, destiny might have been cheated on numerous occasions in Judge Mueller's non-traditional path to a legal career.

When I joined Orrick, Herrington & Sutcliffe in 1997, the future judge was already a legend at the firm. As only a junior associate at Orrick, Ms. Mueller was fresh from winning an injunction against Dow Jones and its illustrious Wall Street Journal. The WSJ was launching a series of state-by-state inserts. In California, the insert would be known as the California Journal. But a small, well-established political magazine already claimed that title.

Though Ms. Mueller was only two years out of law school, the California Journal sought her help. But Ms. Mueller's efforts to negotiate with WSJ's lawyers, the venerable Los Angeles firm of Gibson, Dunn & Crutcher, went nowhere. The WSJ, which once threatened to sue an elementary school for using the playful title Small Street Journal for a newsletter, was not intimidated by a young associate from Sacramento. The WSJ would settle for nothing less than the unqualified right to use California Journal. With the help of Orrick Partner Norm Hile, Ms. Mueller engineered first a temporary restraining order and then a preliminary injunction against the WSJ. After an unsuccessful writ and appeals from the injunction, the WSJ settled, and Ms. Mueller saved the California Journal's good name from encroachment.

The victory assured Ms. Mueller's legendary status at Orrick. But the legend was born not just from that single case. She had focused intently on intellectual property. Though a fledgling lawyer in a big firm, Ms. Mueller was attracting her own clients. Norm Hile describes her as a "really talented litigator whether at the trial level or appellate level." Though trials are usually sparse in large firms, Ms. Mueller had taken an "amazing number of cases to trial," Mr. Hile notes, "prevailing over attorneys with twenty to thirty years' experience." But a cutting-edge intellectual property practice was not Ms. Mueller's only strength. "She knew everybody in the world," Mr. Hile recalls.

Even then as a junior associate, Ms. Mueller was candid and plain-spoken. Ms. Mueller made no secret of her politics, her favored political candidates, even her religious upbringing - topics that most of us fear to raise even with close friends. Oddly, however, none took offense. Ms. Mueller displayed an uncommon diplomacy, without surrendering her own views. While interviewing Ms. Mueller for this article, I was struck again by her candor. Pondering whether she should discuss her religious background, Ms. Mueller demurred that she always asks herself if it's an appropriate topic, but concludes that it's fair game, "That's a part of who I am."

Ms. Mueller's parents married young while attending Bethel College, a Mennonite school in North Newton, Kansas. They had had plans to finish college and travel the world before starting their family. Ms. Mueller upset those plans by arriving one year later, the first of three daughters.

Being born into a Mennonite family may have foreshadowed Ms. Mueller's political interest. The Mennonites are a somewhat obscure, pacifist sect that originated in Germany. Though earlier Mennonite generations kept their distance from politics, the church has encouraged political involvement in more recent times. One of the best known from the later generations, Jesse Unruh - also born in Newton, Kansas -- became one of the California Assembly's most powerful speakers, widely regarded for his political acumen.

After college, and a short stop for Mr. Mueller to teach junior college in Hutchinson, Kansas, Mr. and Mrs. Mueller brought their family to Grinnell, Iowa where he taught ninth-grade social studies and coached the wrestling team. After finishing a delayed masters' degree, thanks in part to Kim's untimely arrival, Mrs. Mueller first ran the local day care center and then became the fine arts coordinator for Grinnell College.

"Iowa was a great place to grow up," Judge Mueller enthuses. With only 9,000 people in the town, the Mueller sisters walked the town from one end to the other. "You knew the town inside and out," she recalls. Despite pleasant memories of life in the Midwest, Judge Mueller is unlikely to return soon for anything but a visit to her parents, now retired back in North Newton to be near her grandparents. "I had no perspective at the time," she explains, "I had no idea how hot and humid the summers were, or how brutally cold were the winters. I also just wanted to be away from home, not realizing that as I got older I'd wish it were easier to go home for a visit."

A horizon-broadening experience in 1975 changed Ms. Mueller's perception. She finished high school in South Africa on a Rotary Club exchange program. Returning to Iowa mid-year, Ms. Mueller began the search for a suitable college. Her father wanted his eldest daughter to stay home and attend Grinnell College. But at 17 years old, after experiencing South Africa, she "was ready to be away from home." A photograph in the Pomona College catalog piqued her interest. "When I saw women in halter tops reading Plato in the winter," she reveals, "I knew this was the place to be." The photos showed California to be as beautiful as South Africa, "but without apartheid," and Pomona College was a solid liberal arts college. With her future planned, she still had to fill a semester and summer before starting school, so she took a job as society editor at the Grinnell Herald Register in 1976.

After a big country breakfast at her grandmother's house, the future magistrate judge boarded a train in late summer 1976, headed for Claremont in Southern California. At Pomona College, she majored in the history of religions, spending a semester in Jerusalem, and visiting the Sinai Peninsula. "I thought I'd get a masters and maybe a Ph.D," she reminisces. Despite decent grades, however, Ms. Mueller soon realized she wasn't the academic she had imagined. But a chance encounter with two dynamic professors inspired a new passion: public service.

One, Dan Mazmanian, taught a public policy course which had students examine the gap between a law's intent and its implementation. Mueller studied the Williamson Act, the California Land Conservation Act of 1965, which allowed landowners to reduce tax assessments by committing land to agricultural use or open space. She tried to determine whether the Act was helping save - or not - the Chino dairies near Claremont. Another professor, Jerry Moulds, who had taught at the University of California, Davis, maintained his ties with the Northern California community. Professor Moulds signed Ms. Mueller up for the Food, Land and Power Program, funded by the Kellogg Foundation, which placed students in public service and government organizations. In the summer of 1981, a dozen Pomona College students trekked to Davis to work as volunteers. The California Agrarian Action Project was Ms. Mueller's assignment. CAAP's projects included lobbying for public-records laws to improve access to information about the use and risks of pesticides and other toxins. The experience exposed Ms. Mueller to the legislative process, lobbying the California Department of Food and Agriculture, the Yolo County Board of Supervisors, and the Sacramento City Council for improved information and access to public records.

Inspired by her brush with grassroots organizing and local politics, Ms. Mueller pulled out the paper she had written on the Williamson, which turned out to be another fortuity for Ms. Mueller's future in public service. Toting her paper around Sacramento, she shopped for a job. Coincidentally, the California Department of Conservation was setting up a new Williamson Act unit, and Ms. Mueller hired on as a graduate assistant. Steve Oliva, her boss in the Legal Office, recalls a young woman who had to "hit the ground running in her first government experience, and did." She took on a difficult assignment "with vigor and with gusto," according to Mr. Oliva, coordinating the gathering of complex assessment data from all of California's counties.

In 1983, intending to return to school, Ms. Mueller decided that the law might provide the right kind of opportunities given her new interests. So she took the Law School Admissions Test. Despite acceptance to several law schools, fate intervened again to advance Ms. Mueller's public-service career. Through her work with the California Agrarian Project, and later volunteer work in the state legislature, Ms. Mueller got to know firefighters who shared an interest in preventing toxic exposures. By coincidence, the Federated Firefighters of California (now the California Professional Firefighters), was losing its Health and Safety Director to law school and the firefighters approached Ms. Mueller. She seized the opportunity and tabled her own law school plans. "I was having way too much fun and learning a lot," she says. "I was pretty convinced I wanted to work on public policy."

Deferring law school also allowed another opportunity to open up. After working with Sacramento City Councilman Lloyd Connelly (now a Sacramento Superior Court Judge) when she lobbied for the California Agrarian Action Project, Ms. Mueller volunteered to work on his Assembly campaign. Completing the form to indicate what tasks she would accept, Ms. Mueller checked "everything" -- including precinct-walking. Most volunteers, she explains, don't like to walk precincts. But she enjoyed it. So precinct-walking was a natural when she volunteered for Councilman Connelly and then for other candidates. That inclination also meant that she pounded pavement with the candidate. On one of those walks, a particular candidate suggested that Ms. Mueller had a future in politics.

Approaching the challenge with characteristic prudence, Ms. Mueller first applied for an appointed position, the City Toxics Commission, "to see if I liked being on that side of the podium." She did. Ms. Mueller had bought her first home in the southeast Sacramento neighborhood of Tahoe Park, Councilman Connelly's district. Mr. Connelly had moved on from the same district to the California Assembly four years earlier. Though Ms. Mueller had no particularly strong gripes with the incumbent, she figured that voters should have a choice-and Ms. Mueller became the voters' choice at the next election.

Nearing the close of her first term, fate or fortune took a hand again. Realizing that "I wasn't getting any younger," Ms. Mueller's interest in law school resurfaced. But in the nine years since she had taken the LSAT, the scoring system had changed. The University of California wouldn't accept the older scores, but Stanford would - so she applied to Stanford. While she awaited Stanford's response, Ms. Mueller mulled the possibility of returning to school, still intrigued by politics and her job.

The deadline to declare her candidacy for reelection was May, and the city council member had stalled her decision to file for re-election. Darrell Steinberg wanted to run, but not with Ms. Mueller as an opponent, and he was convinced that she had "every intention" of running. On the eve of the filing deadline, she received an invitation from Stanford Law School to start class a few months later. No candidate had filed to oppose Ms. Mueller's reelection. If she had opposition, she believes, Ms. Mueller would have foregone law school to prove that she could prevail in a contested election. At 10:00 p.m. the night before filing, she called Mr. Steinberg with the news that she would start law school in the fall, letting him know that the filing period for her seat would be extended as a result. Now the Ninth District Assemblyman, Mr. Steinberg credits Ms. Mueller for his political career. "If not for her support," he theorizes, "I might not be where I am today." His support for his city council predecessor has not waned. "She's one of the brightest and most articulate people I know," he says enthusiastically. "She understands people - a real problem solver."

Ms. Mueller maintained her ties with Sacramento during law school. In spring 1994, she served an externship at the Eastern District for Judge David Leviwhere she assisted with law and motion, and researched inmate civil rights cases. At her investiture, Judge Levi noted that he was "immediately impressed" by Ms. Mueller, when he first met her before law school and during her externship.

Ms. Mueller returned to Sacramento in 1995 after law school to join Orrick, and to marry Bob Slobe, then the vice-president and now the president of his family's business, the North Sacramento Land Company. Despite her success and a probable future partnership at Orrick, Ms. Mueller went solo in 1999. While the transition surprised some, the move was logical for a public-service-minded lawyer. While Orrick provided a cutting-edge intellectual property practice, big-firm rates made it more difficult for Ms. Mueller to represent individual artists and authors, or to help smaller businesses. And when Magistrate Judge John Moulds decided to retire to "recall status," it was little surprise that Ms. Mueller would see an opportunity to complete the return to public service.

Congress first created the post of "magistrate" in 1968, expanding the role that "commissioners" had fulfilled for 175 years in the federal courts. In 1990, Congress renamed the post, "magistrate judges." After recommendations of a citizens screening committee, the district judges appoint magistrate judges for eight-year terms. Among the many tasks authorized by federal law, district judges typically assign to magistrate judges the job of issuing search and arrest warrants, conducting preliminary criminal proceedings, and presiding at civil or criminal trials if all parties consent. In Sacramento, magistrate judges have a task that may be unique among the federal districts across the country: in addition to the usual criminal docket, magistrate judges hear all federal habeas petitions, including death-penalty cases, sending their findings of fact, conclusions of law, and recommendations to the district court for a final determination.

Criminal matters were not on her docket as a lawyer at Orrick or as a sole practitioner. In addition to preparing to make life-or-death determinations on federal habeas petitions, Judge Mueller must master the Bail Reform Act, a statute known for its obtuse language and murky standards for granting bail. Judge Mueller is guarded. "Getting to the point that you feel comfortable making that call with a real person is a very big challenge," she says. "An additional challenge, once you gain some sense of competency, is never becoming complacent about the decision."

Despite her customary caution, Judge Mueller is likely to rise to the challenge. At her investiture, Judge Levi quoted from Benjamin Cardozo's speech at a wedding in 1931: "Three great mysteries there are in the lives of mortal beings: the mystery of birth at its beginning; the mystery of death at its end; and greater than either, the mystery of love. Everything that is most precious in life is a form of love. Art is a form of love, if it be noble; labor is a form of love, if it be worthy; thought is a form of love, if it be inspired."

Turning to Judge Mueller, Judge Levi said, "I welcome you to this labor of love." With her career drawn inexorably back to public service, Judge Mueller's return to a public-service career is almost certain to be a labor of love.

May/June 2003