Judge ends record 27 years on Oregon Court of Appeals
Rex Armstrong tells a story of what happened to him that foreshadowed his future, years before his career as a lawyer and a record 27 years as a judge on the Oregon Court of Appeals.
At age 18, he had just completed a summer near Raymond, Wash., as a choker setter — a person who does the dangerous work of attaching cables for retrieval of fallen logs — and was en route home to Portland when police suspected him in two burglaries. He had been seen near the jewelry stores. But he was not arrested, because a Washington State Patrol trooper had stopped him earlier for a broken taillight.
More than a quarter century later in 1994, when the Portland lawyer was a first-time candidate for an open seat on the Oregon Court of Appeals, Armstrong was asked on a Pendleton radio program whether criminal defendants should go free based on "technicalities."
"My experience in the woods in Raymond, Wash., about how the system operates and how it can produce wrongful convictions — when it is doing exactly what it should do — makes me value the system we have that makes it difficult to convict people," Armstrong recalled his response during a recent interview.
Noting that "beyond a reasonable doubt" is the legal standard for criminal convictions, "I said I do not view the enforcement of constitutional rights as technicalities."
Armstrong emerged from a field of five in the primary, then defeated Barry Adamson of Lake Oswego to win Position 10 in the general election.
Armstrong, who turns 72 in February, retired Dec. 31 after a record 27 years on one of the nation's busiest intermediate-level courts. His tenure covered half the court's existence, which dates back to 1969.
He said he has not kept count of the opinions he has written. But he guesses he has been the author of more than his share of dissents and concurrences, the latter agreeing with the result but not the reasoning behind a decision. The court, which numbered 10 when Armstrong joined but has been 13 since 2013, normally works in three-member panels — one of which Armstrong has led.
James Egan, who remains on the Court of Appeals but just stepped down as its chief judge, said Armstrong has followed in the footsteps of one of his mentors: Hans Linde, the University of Oregon law professor and Oregon Supreme Court justice who was one of the leaders of the "new federalism" movement that relies on interpretations of state constitutions to expand rights.
"Rex has continued that legacy," Egan said to the court on Armstrong's last business day Dec. 30. "He has made a difference, whether in dissent or in the majority. Like no other member of the Court of Appeals, he has shaped the law of Oregon."
On that same day, the Oregon Supreme Court overturned its 35-year exception for motor vehicles from a longstanding requirement for police to obtain court-issued warrants for searches, unless government can show "exigent circumstances" that make it impractical to do so.
Linde was one of two justices who dissented back in 1986 — and Armstrong also made the exception his first dissent on the appeals court in 1995. As recently as 2015, Armstrong's dissent turned into a majority opinion — by a 7-6 vote of the full court, the only time all 13 have taken part in a case — but then the Supreme Court reversed it.
"It really does bring my career on this court full circle," said Armstrong, who learned of the Supreme Court's latest turn minutes before he spoke on his final day.
"What this series of cases signifies is that the legal principles that govern our lives continue to change and evolve by our state and federal constitutions. I am profoundly grateful I have been able to contribute to that work."
Armstrong was born in Salem — his father was chief of staff to Oregon Govs. Douglas McKay, Paul Patterson and Elmo Smith in the 1950s — and the family moved to Portland in 1959. He attended Robert Gray Elementary School, now a middle school, then graduated in 1968 from Phillips Academy in Andover, Mass. He did attend the 50th anniversary reunion of Wilson (now Ida B. Wells) High School, where he would have gone if he had stayed in Oregon.
He was a Washington, D.C., intern for U.S. Sen. Mark Hatfield in 1971, and then Eastern Oregon field director for Hatfield's 1972 re-election campaign. He would draw from the latter experience when he ran statewide himself 22 years later.
He re-enrolled at the University of Pennsylvania, where he made connections with three people who would shape his career:
• Steven Kapsch, whose course in constitutional law whetted his appetite for more. When Armstrong graduated from Penn in 1974, Kapsch moved to Reed College, where he taught political science until his retirement in 2005.
• Steven Neal, 1967 graduate of McNary High School in Keizer and 1971 graduate of the University of Oregon, who then was on his first job as a reporter for the Philadelphia Inquirer. Neal, who later coauthored Tom McCall's 1977 memoir and wrote several other books, gave Armstrong an advance review copy of William O. Douglas' 1974 autobiography, "Go East, Young Man." It describes Douglas growing up in Washington state before he is appointed to the U.S. Supreme Court at age 40 in 1939.
• Hans Linde, then a University of Oregon law professor, who was a law clerk to Douglas on the court in 1950-51. Linde shared Douglas' expansive view of the First Amendment, the federal constitutional guarantee of free speech, press, religion and petition for grievances. Armstrong had applied to several law schools, including Oregon.
"I was hoping I would have the opportunity to learn from him, and he said yes," Armstrong recalled. "That was a profound moment in the trajectory of my life."
To the Appeals Court
In law school, Armstrong delayed taking constitutional law until his third year, when Linde returned from a sabbatical in Germany. But after only half the course, Linde left in January 1977 as an appointee of Gov. Bob Straub to the Oregon Supreme Court. Armstrong followed him several months later as Linde's second law clerk on the court.
Linde was on the court until 1990. He died in 2020 at age 96.
Armstrong said his one year with Linde was like a post-graduate law seminar — and more.
"He was a renaissance figure. He was truly interested in nearly everything. There was no subject he had not thought about," he said.
"He had a huge range of insights stemming from his ability to think that way. He had a remarkable influence on state law and the development of so-called new federalism — which I agree with — that state judges have an obligation to decide the meanings of their state constitutions along with state laws."
On that basis, Oregon interprets its constitutional guarantee of free expression more broadly than the U.S. Supreme Court does for the First Amendment. Voters have rejected attempts to restrict it.
After his clerkship, Armstrong specialized in civil litigation and appellate work. He met his wife, Leslie Roberts, while they were cooperating attorneys for the American Civil Liberties Union of Oregon. They were married in 1984 by Arno Denecke, a former Oregon chief justice for whom Roberts had been a law clerk.
A decade later, Armstrong was on the phone with Rick Haselton, who had just joined the Court of Appeals — both had worked at the Portland firm of Lindsay Hart — when Haselton said that Judge Kurt Rossman was about to leave the court and leave it to voters, instead of Gov. Barbara Roberts, to choose a successor.
Armstrong asked about running himself, and he said Haselton's reply was: "You can't get elected."
But he asked his wife and Linde, who were more encouraging, and he was the first of five to announce for the seat. Had it been left to Gov. Roberts to fill by appointment, Armstrong would not have been chosen. (Barbara Roberts is Leslie Roberts' stepmother.)
Not having campaigned for any office, let alone statewide, he consulted one other person — Mark Hatfield, who was winding up 30 years in the Senate, and more than two decades after Armstrong worked in Hatfield's 1972 campaign.
"I knew what a campaign looked like," Armstrong said. "I knew about meeting and engaging with people. But I never thought I would have any desire to do that. It proved to be a satisfying experience."
Armstrong was willing to do it again two years later — this time for the Supreme Court seat being vacated by Richard Unis, who was awaiting appointment as the administrator of the Louisiana-Pacific settlement in U.S. District Court.
"That path would have made me the shortest-serving judge on the Oregon Court of Appeals," he said.
But a surprise entrant followed — Attorney General Ted Kulongoski, who had already made two statewide bids, and who beat Armstrong and Circuit Judge Frank Yraguen in the primary. Kulongoski resigned in 2001, and the following year, he was elected to the first of two terms as governor.
Armstrong won four more six-year terms, the most recent in 2018, when he beat Kyle Krohn, a state deputy public defender half his age. He was unopposed the other times.
Armstrong saw one of his dissents turn into a majority opinion — but not his reasoning until 2021 — in a 2000 case (Sims v. Besaw's Café) where someone sued under a Portland ordinance barring discrimination based on sexual orientation. This was before a state law in 2007.
Two other judges concluded that only the Legislature, not the City Council, could create a right to sue under the ordinance and dismissed the challenge. Before that decision became public, however, the full court at the behest of Judge Jack Landau — who authored the appeals court's 1998 decision that allowed benefits to same-sex couples — took up the case and decided in favor of Sims. Armstrong's reasoning did not prevail, though, because only five of the 10 judges voted for it.
On Nov. 4, Justice Thomas Balmer cited the 2000 ruling in a Supreme Court ruling (Owen v. Portland) upholding Portland's 2017 rent ordinance, which requires landlords to pay tenant's relocation expenses if tenants cannot afford rent. Nov. 4. "So it is now the law in Oregon after 21 years," Armstrong said.
A final word
One of Armstrong's most recent decisions on Oct. 6 reversed the 2004 aggravated-murder conviction of Jesse Lee Johnson, who has been on Oregon's death row for 17 years in connection with the stabbing death of Harriet Thompson in 1998 in Salem. The panel that Armstrong led ordered a new trial based on the failure of defense counsel to interview a witness, Patricia Hubbard, who said an intruder in Thompson's home was white. Johnson is Black.
"A reasonable investigation would likely have led to finding and interviewing Hubbard, which in turn would have led to evidence and testimony that could have tended to affect the outcome of the trial," Armstrong wrote.
The state has the option of an appeal to the Oregon Supreme Court.
Armstrong will continue part-time service for the next five years under Oregon's plan that enhances pension benefits for judges.
"I have come to have a tremendous commitment to the rule of law and an independent judiciary in our system and the manner in which we address conflicts."
Twelve is enough
It was an unusual ad, to say the least.
Judge Rex Armstrong sponsored it in the Oregon State Bar Bulletin, whose advertising came mostly from law firms, to thank members of the Oregon Court of Appeals and the Portland law firm where his wife then worked.
"I thought it was appropriate to take out an ad that said we had added our fifth child, and third from China," he said.
But they didn't stop there. They ended up adopting a total of 12 children from China.
It started after Armstrong and Roberts, married in 1984, decided they wanted to add to their
two children. They decided adoption was their best option — both were in their 40s — but were advised that a birth mother would be unlikely to choose them as parents. They also were told that adoption from programs in India and South Korea was out. So they turned to China, where they adopted their first daughter in 1996.
On the return flight, Armstrong turned to Roberts and said, "Wouldn't it be insane to do this again?"
Two years later, they did it again. Then again. Then the ad.
But it didn't stop there.
"Events unfolded after that," he said. "We went back and adopted a son. It kept going without any plan."
Leslie Roberts was elected a Multnomah County circuit judge in 2006. She retired in spring 2021.
They adopted their final two children in 2012 — and most of them still live with them in Portland. Some are enrolled in Oregon colleges. One earned a degree in music from the University of Oregon and is music director at a university in Jiangsu province in China. Another is in Taiwan on a University of Oregon program.
Given his long interest in China, Armstrong had hoped in retirement to play a role in China's transition to the rule of law and a judiciary independent of the governing Communist Party. But he said that under Xi Jinping, who has led China since 2012 — when he and his wife adopted the last of their 12 children — the party is reinforcing its dominance.
"I still care about what direction they take," he said. "But I am under no illusion that there is an opportunity for me to spend time there doing that. I think change will come, but I am not likely to play much of a role."
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