Thomas T. Johnson, L.A. judge who ruled that Holocaust was a fact, dies at 88

Posted Jan. 01, 2012, at 7:23 p.m.

LOS ANGELES — Retired Los Angeles County Superior Court Judge Thomas T. Johnson, who in 1981 ruled that the Holocaust was “a fact and not reasonably subject to dispute,” died of congestive heart failure Dec. 28 at his home in the Pacific Palisades neighborhood of Los Angeles, said his son, Will. He was 88.

Johnson made the unusual pronouncement in a case brought by Long Beach, Calif., businessman Mel Mermelstein against the Institute for Historical Review, a Torrance, Calif., organization that claimed that the planned extermination of Jews by the Nazis was a myth. The institute offered a $50,000 reward for proof that Jews had been gassed at Auschwitz during World War II.

Mermelstein, an Auschwitz survivor who lost his family in the Holocaust, sued the institute for $17 million, contending that the institute reneged on its offer after he submitted proof of the murders.

On Oct. 9, 1981, Johnson resolved the most controversial part of the case using the doctrine of judicial notice, which allows courts to recognize as fact matters that are common knowledge.

“The court does take judicial notice that Jews were gassed to death in Poland at Auschwitz in the summer of 1944,” when Mermelstein and his family were there, Johnson said.

“It was the greatest ruling I could have hoped for,” William John Cox, Mermelstein’s attorney in the case, said Friday. “It would have been very easy for the judge to say the motions on summary judgment are denied. There was no real requirement that he do this. … It was a courageous decision.”

During 18 years on the bench, Johnson, who went on to serve as presiding judge of the Superior Court in 1985 and 1986, handled a number of attention-grabbing cases, including disputes involving entertainer Rudy Vallee, tennis star Billie Jean King and philanthropist Norton Simon. But none matched the historical significance of the lawsuit that asked him to decide whether the Holocaust ac tually took place.

“His taking judicial notice was important, not in that it validated the Holocaust, but it avoided providing Holocaust deniers with a platform to grandstand and to present their historical distortion,” Emory University historian Deborah Lipstadt said in an email.

The Institute for Historical Review, a nonprofit group that published a journal, contended that the deaths of Jews during World War II were caused by disease, malnutrition and Allied bombings.

Mermelstein had sent the institute a lengthy affidavit recounting how he and his family were arrested in the spring of 1944 and sent to the Auschwitz-Birkenau camp. He described the last sight he had of his mother and two sisters when they were driven to a facility he later learned was the gas chamber at Birkenau.

Johnson said his decision was not based on Mermelstein’s declarations but on “sources of reasonably indisputable fact,” including many books.

Mermelstein later won a settlement of $90,000 and a formal apology from the institute.

Johnson was born on Feb. 26, 1923 in Louisville, Ky. During World War II he served in the Navy aboard the aircraft carrier Lexington. After the war, he earned degrees in engineering and law from the University of Louisville and went to work for the U.S. Justice Department. It sent him to Los Angeles to help establish a program to compensate Japanese Americans for losses incurred when the y were held in wartime relocation camps.

He later practiced law in Los Angeles with George Danielson, who became a California legislator and congressman.

Johnson was appointed to the Los Angeles Municipal Court in 1971 by Gov. Ronald Reagan and elevated to the Superior Court in 1973. After a stint at the Santa Monica courthouse, he retired in 1989 to work for a private arbitration and mediation firm.

In addition to his son, Will, he is survived by his wife, Marianne, son Blake and a granddaughter.

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