The Holocaust Historiography Project

California Court Rejects Mermelstein’s Appeal

In the latest round in the long-standing effort by Holocaust personality Mel Mermelstein to shut down the Institute for Historical Review, the California Court of Appeal (Second Appellate District, Division Two) ruled on October 28, 1992, decisively in favor of the IHR and co-defendants.

The three judges — Nott, Gates, and Fukuto — unanimously rejected Mermelstein’s appeal of the dismissal, on September 19, 1991, by Los Angeles Superior Court Judge Steven Lachs, of Mermelstein’s complaint of malicious prosecution against IHR and its fellow defendants. (For more on the IHR’s 1991 legal victory, see the IHR Newsletter, October 1991.)

Five days before its recent ruling, Mermelstein’s lawyer had argued before the appeal court that Judge Lachs had erred in finding that the IHR and co-defendant Willis Carto had probable cause to sue Mermelstein for libel.

However, IHR attorney William Hulsy’s persuasive brief and oral arguments, as well as Judge Lachs' careful attention to the facts and the law in his decision to grant Hulsy’s motions of non-suit and to dismiss Mermelstein’s complaint, proved decisive. The ruling of the three appeals court judges was both unanimous and categorical.

As this issue of the Journal goes to press, Mermelstein still has an option or two remaining, including petitioning the California Supreme Court to review the appeals court’s decision. But the weakness of Mermelstein’s factual and legal arguments against Judge Lachs’s 1991 ruling, and the clear disfavor in which malicious prosecution complaints are held by the judiciary, make any successful attempt by Mermelstein to salvage his case extremely unlikely.

So, while we have very reasonable grounds for optimism that the long, costly, and potentially ruinous legal struggle will in complete and final victory for the Institute, we'll wait to uncork the champagne until we receive the final word in the case.