text:
    FISHER BROTHERS, Goldberg Plumbing Supply Company, Inc., Standard Plumbing Supply Co., Inc., Big D Building Supply Company, Elbo Industrial Supply Co., Amity Plumbing & Heating Supply Corp., Pipeline Supply, Inc., Sherby and Sherby, Inc. t/a Cobbs Supply Co., J. Heller & Sons, Inc., Gunhill Plumbing Supply, Inc., and Kamen Supply Co., Inc., Plaintiffs, v. PHELPS DODGE INDUSTRIES, INC., Defendant.
    Civ. A. No. 83-2457.
    United States District Court, E.D. Pennsylvania.
    Feb. 20, 1985.

      Seymour Kurland, Burt M. Rublin, Wolf Block, Schorr and Solis-Cohen, Leonard Barrack, Barrack, Rodos & Bacine, Philadelphia, Pa., for plaintiffs.
    Duane, Morris & Heckscher, Gene E.K. Pratter, Philadelphia, Pa., for Phelps Dodge Industries, Inc.
   MEMORANDUM and ORDER

SHAPIRO, District Judge.

INTRODUCTION

Plaintiffs brought this action individually and on behalf of a putative class of direct purchasers of copper water tubing from defendant Phelps Dodge Industries, Inc. (“Phelps Dodge”), during the period January 1, 1975 to November 30,1982, for relief from defendants’ alleged price-fixing in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. Prior to class certification pursuant to Fed.R.Civ.P. 23(c), the parties filed an agreement of settlement and dismissal. A hearing was held on plaintiffs’ motion to approve the proposed settlement pursuant to Fed.R.Civ.P. 23(e) following due notice to members of the proposed settlement class. No class member objected or asked to be heard. Upon full consideration of written submissions and oral arguments in support of the settlement, the court approves the settlement as fair, reasonable and adequate.

FACTS and PROCEDURAL HISTORY

A federal grand jury in the Eastern District of Pennsylvania began investigating alleged price-fixing in the copper water tubing industry in the summer of 1981. While the investigation was proceeding, Fisher Brothers filed a civil complaint against Cambridge-Lee Industries, Inc. (“Cambridge-Lee”), Cerro Copper Products, Inc. (“Cerro”), Halstead Industries, Inc. (“Halstead”), and Howell Metal Company, Inc. (“Howell”) on November 5, 1982 (Civil Action No. 82-4921). The complaint alleged the defendants and their as yet unnamed co-conspirators had engaged in a nationwide conspiracy to fix, raise, maintain or stabilize the price of copper water tubing, in violation of Section 1 of the Sherman Act. Plaintiffs also moved to certify the action as a class action. Shortly thereafter, a number of complaints with similar allegations were filed by other copper water tubing purchasers against these defendants.

On March 18, 1983, the Grand Jury returned an indictment against six corporate defendants, Cambridge-Lee, Cerro, Phelps Dodge, Reading, Revere Copper and Brass, Inc. and Revere Copper Products, Inc. (together known as the “Revere Companies”) and six present or former employees of some of these companies. The indictment alleged that the corporate and individual defendants had engaged in an unlawful conspiracy to fix the prices of copper water tubing from at least 1975 until June, 1981. Subsequent to the indictment, plaintiffs and defendants Cambridge-Lee, Cerro, Hal-stead and Howell, stipulated to class certification and related matters in the pending civil litigation. The court, by order entered April 29, 1983, approved the stipulated class defined as follows:

All individuals, proprietorships, partnerships, corporations and other business entities in the United States (excluding defendants, their parents, subsidiaries and affiliates, and their alleged co-conspirators) who have, during the time period 1975 through November, 1982, purchased copper water tubing directly from one or more of the defendants (including defendants’ subsidiaries and affiliates) or their alleged co-conspirators.

Prior to the criminal trial, Fisher Brothers and a number of other plaintiffs filed this joint complaint (Civil Action No. 83-2457) against Phelps Dodge on May 23, 1983, and moved for class certification in this action on June 20,1983. Phelps Dodge opposed this motion on the ground that its activity in the copper water tubing industry was more limited in time and geographical area than that of the defendants in the cases consolidated at Civil Action No. 82-4921 (the Master File case). Before the court decided this motion, Phelps Dodge reached a settlement with plaintiffs; the Agreement of Settlement was executed on August 23, 1983.

This Agreement provided that Phelps Dodge would pay $2.5 million in escrow for the benefit of the settlement class designated as:

All individuals, proprietorships, partnerships, corporations and other business entities in the United States (excluding defendants, their parents, subsidiaries and affiliates, and their alleged co-conspirators) who have, during the time period January 1, 1975 through November 30, 1982 (the “covered period”), purchased copper water tubing directly from one or more of the defendants (including defendants’ parents, subsidiaries and affiliates) or their alleged co-conspirators.

This settlement amount would not affect any joint or several liability of any other defendant or alleged co-conspirator.

Under the terms of the Agreement, Phelps Dodge retained the right to withdraw from the settlement under certain conditions. First, Phelps Dodge could withdraw if, within twenty (20) days after the date by which class members had to act to exclude themselves from the class, Phelps Dodge in its sole judgment determined that class members requesting exclusion had made “substantial purchases” of copper water tubing from Phelps Dodge during the relevant time period. Second, the Agreement contained a “most favored nations” clause giving Phelps Dodge the right to terminate the settlement or obtain more favorable terms if plaintiffs subsequently settled with a “similarly situated” defendant on more favorable terms unless the circumstances materially changed so that plaintiffs might reasonably conclude that the prospect or amount of ultimate recovery from an otherwise similarly situated defendant had been substantially reduced. (Favorability would be determined by comparing the ratio of amount of settlement to percentage of sales made during calendar years 1979-1982.)

Consideration of preliminary approval of this settlement was delayed to permit conclusion of the criminal trial of United States v. Cambridge-Lee Industries, Inc., et al., Criminal No. 83-107. After a nine-week trial before Judge Huyett, the remaining defendants, including Phelps Dodge, were found not guilty on December 22, 1983.

A hearing to consider whether to send notice of the Phelps Dodge settlement to the settlement class pursuant to Rule 23 was held on January 25, 1984. But the court postponed notice of a hearing on final approval in order to consider whether: i) the settlement class in Civil Action No. 83-2457 should be the same as the stipulated class in the Master File case; ii) adequate notice could be sent to the settlement class if there were no provision in the Agreement for ascertaining the identity of purchasers from alleged co-conspirators; and iii) there was an adequate basis for determining the “present circumstances” of defendants, so that the court could interpret the effect of the “most favored nations” clause; Opinion of January 18, 1984.

During the spring of 1984, plaintiffs achieved separate settlements with Howell and Halstead and, in the fall of 1984, with the Revere Companies (which were then in bankruptcy proceedings). The court preliminarily approved the settlements with Phelps Dodge, Howell, Halstead and Revere Companies on October 29, 1984 and directed that notice of the proposed settlements be sent to the settlement class and published twice in all regional editions of The Wall Street Journal. Pursuant to the court’s Order, counsel for the class sent notice informing all class members that a court hearing to determine whether the proposed settlements were fair, reasonable and adequate would be held on January 11, 1985. The notice also stated that any member of the class could appear and be heard at the hearing to object to the settlements, that any member of the class could opt out, but that all class members not so excluded would be bound by the settlement if approved by the court. Proof of mailing this notice was filed with the court on November 26, 1984 and supplemented at the hearing on January 11, 1985; proof of publication of the notice and class members requesting exclusion from the class were also made part of the record at that hearing.

The court, having considered the written and oral submissions of January 11,1985 in support of the Phelps Dodge settlement as well as the lack of opposition thereto, now determines upon an independent evaluation of the proposed' settlement that it is fair, reasonable and adequate.

APPROVAL OF SETTLEMENT

Rule 23(e) of the Federal Rules of Civil Procedure mandates court approval of a class action settlement:

A class action shall not be dismissed or compromised without the approval of the Court, and notice of the proposed dismissal or compromise shall be given to all members of the class____

Approval of a proposed class action settlement is discretionary with the court. Girsh v. Jepson, 521 F.2d 153, 156 (3d Cir.1975); Ace Heating & Plumbing Company v. Crane Company, 453 F.2d 30, 34 (3d Cir.1971). Settlement is a course favored by law, Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., 455 F.2d 770, 773 (2d Cir.1972), but a settlement will be approved only if it is “fair, adequate, and reasonable” to the members of the class, Walsh v. Great Atlantic and Pacific Tea Company, Inc., 726 F.2d 956, 965 (3d Cir.1983). The settlement must be both substantively reasonable compared to the likely rewards of litigation, Shlensky v. Dorsey, 574 F.2d 131, 147 (3d Cir.1978), and the result of good faith, arms length negotiations, Weinberger v. Kendrick, 698 F.2d 61, 74 (2d Cir.1982).

Various courts have attempted to specify factors to be considered prior to decision upon the fair, reasonable, and adequate nature of a proposed class action settlement. See Malchman v. Davis, 706 F.2d 426, 433-34 (2d Cir.1983) (nine factors); Reed v. General Motors Corp., 703 F.2d 170, 172 (5th Cir.1983) (six factors); Officers for Justice v. Civil Service Commission, 688 F.2d 615, 625 (9th Cir.1982), cert. denied, 459 U.S. 1217, 103 S.Ct. 1219, 75 L.Ed.2d 456 (1983) (eight factors). In Girsh v. Jepson, 521 F.2d 153 (3d Cir.1975), this Circuit noted the relevancy of the following nine factors in determining the fairness of a settlement:

... (1) the complexity, expense and likely duration of the litigation ...; (2) the reaction of the class to the settlement ...; (3) the stage of the proceedings and the amount of discovery completed ...; (4) the risks of establishing liability ...; (5) the risks of establishing damages ...; (6) the risks of maintaining the class action through the trial ...; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery ...; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation____

Girsh, 521 F.2d at 157 (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974)).

A. Burdens of Litigation

For a period of time after the first complaint was filed, all defendants were adamant in refusing to consider settlement on any terms acceptable to plaintiffs. Phelps Dodge’s willingness to come to the bargaining table and plaintiffs’ willingness to settle with Phelps Dodge indicated to other defendants that representatives of the class were willing to engage in good faith bargaining and was helpful to the interests of the class. This settlement was also achieved prior to expensive and time-consuming discovery which saved the class some attorneys’ fees expenses. Nonetheless counsel for the class was already well informed of the strengths and weaknesses of their case from their investigation of the alleged conspiracy prior to filing the complaint and certain documents available from the criminal proceedings. This settlement was therefore achieved at a time when both sides possessed sufficient information to reach a fair agreement.

Phelps Dodge agreed to a nationwide class solely for settlement purposes. If the case had been litigated, Phelps Dodge intended to contest vigorously plaintiffs’ class certification motion because it sold copper water tubing only in the western United States. After considering Phelps Dodge’s arguments, the court might not have certified the proposed settlement class. Therefore, the settlement may benefit a broader class than would a subsequent judgment in favor of a class.

This proposed settlement was achieved prior to the conclusion of the criminal trial. Phelps Dodge’s subsequent acquittal in the criminal case made clear that ultimate success in a civil claim was by no means assured. Defendant consistently maintained that its activities were lawful in all respects and that no nationwide conspiracy to price-fix could be proved. Phelps Dodge further asserted that any price communications with other copper water tubing manufacturers were lawful “price verifications,” and argued that the copper water tubing industry was highly competitive. (Phelps Dodge abandoned the copper water tubing business in 1983 while other manufacturers, e.g., Revere, Reading have gone into bankruptcy.)

Even if plaintiffs were to prevail on liability, causation as to damages would have to be proved. If plaintiffs’ contention that common evidence could be utilized to prove damages did not prevail, the defendant’s exposure might have been significantly reduced. Plaintiffs would also have had the burden of showing that defendants fraudulently concealed their conspiratorial price-fixing activities during 1975-1978 to establish liability for price-fixing damages sustained earlier than four years preceding the filing of the complaint.

But Phelps Dodge also had good reason to avoid the uncertainty of litigation. Plaintiffs maintained that various actions taken by the copper water tubing manufacturers would demonstrate to a jury the existence of a pervasive conspiracy. While the government failed to secure a conviction under the “beyond a reasonable doubt” criminal standard, plaintiffs’ counsel might have proved that a price-fixing conspiracy was “more probable than not.” The availability of treble damages to a successful plaintiff also enters into a defendant’s decision to avoid the risks of litigation.

B. Reaction of the Class

Notices of the settlement were mailed to more than 37,000 members of the settlement class and twice published in The Wall Street Journal, but only forty-six entities, or .13% of the class, have opted to exclude themselves from the settlement and no member of the class has raised any objection to the proposed settlement. “[TJhis unanimous approval of the proposed settlements by the class members is entitled to nearly dispositive weight in this court’s evaluation of the proposed settlements.” See, In re Art Materials Antitrust Litigation, 100 F.R.D. 367, 382 (N.D.Ohio 1983).

C. Amount of the Settlement

The court must review a settlement to determine whether it falls within a “range of reasonableness,” not whether it is the most favorable possible result of litigation. See Newman v. Stein, 464 F.2d 689, 693 (2d Cir.), cert. denied sub nom., Benson v. Newman, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 488 (1972) (“in any case there is a range of reasonableness with respect to a settlement — a range which recognizes the uncertainties of law and fact in any particular case and the concomitant risks and costs necessarily inherent in taking any litigation to completion”). Because of these inherent risks of litigation, “the vast majority of courts which have approved settlements in [antitrust class actions] ... have given their approval to settlements which are traditionally based on an estimate of single [rather than treble] damages,” City of Detroit v. Grinnell Corp., 495 F.2d at 458.

The $2.5 million settlement represented approximately 2.4% of sales of $102.7 million during 1979-82, the four years prior to the filing of the complaint; the statutory limitations period governing antitrust claims is four years. See, e.g., In re Anthracite Coal Antitrust Litigation, 79 F.R.D. 707, 714 (M.D.Pa.1978). The settlement sum is within the range of settlement recoveries which have been approved at final settlement hearings in other major multidistrict class litigations. See, e.g., In re Armored Car Antitrust Litigation, 472 F.Supp. 1357 (M.D.Ga.1979), aff'd in part, rev’d in part, 645 F.2d 488 (5th Cir.1981) (3.88%); In re Anthracite Coal Antitrust Litigation, 79 F.R.D. 707 (M.D.Pa.1978) (settlement of 3% of sales). The parties propose that the settlement fund (to be distributed in accordance with a plan of allocation approved by the court) be distributed to class members in proportion to their purchases of copper water tubing from Phelps Dodge or any of its alleged co-conspirators during the period January 1, 1975 through November 30, 1982; this plan of allocation is fair and easy to administer.

A most favored nation clause in the Phelps Dodge agreement permits Phelps Dodge to terminate or seek more favorable treatment if plaintiffs settle more favorably with other defendants; settlement favorability is determined by comparing each defendant’s settlement amount as a percentage of its total sales, without regard to the relative guilt or innocence of any defendant. But this clause is inapplicable if “present circumstances materially change.”

Phelps Dodge settled prior to the criminal trial; the subsequent acquittals of Cambridge-Lee and Cerro might have had an “obvious, significant, and substantial impact on the progress of the settlements in the civil class action,” In re Corrugated Container Antitrust Litigation, 1983-1 Trade Reg.Rep. (CCH) ¶ 65,451 (S.D.Tex. February 2, 1983). Whether or not these subsequent acquittals in the' criminal trial constituted a material change in circumstances that would render-the most favored nations clause inoperative may be determined by the court if the remaining defendants settle on terms to which Phelps Dodge objects. While the most favored nations clause is frequently considered undesirable, see Manual for Complex Litigation, § 1.46 (5th ed. 1981), in these circumstances, the presence of a most favored nations clause does not suggest disapproval of this settlement agreement.

D. Negotiation Process

Though the court must independently evaluate the proposed settlement, the professional judgment of counsel involved in the litigation is entitled to significant weight. “[A] court should refrain from merely substituting its own judgment of the merits of a settlement for that of counsel intimately associated with the litigation and consequently far more able to weigh its relative strengths and weaknesses.” Jamison v. Butcher & Sherrerd, 68 F.R.D. 479, 481 (E.D.Pa.1975).

The decision to settle on negotiated terms without pursuing lengthy and costly litigation involving significant risk was made by highly experienced counsel, especially competent with regard to class action litigation. Seymour Kurland and Leonard Barrack, and associated counsel, have handled numerous class actions with considerable success; they were personally involved with all aspects of this settlement negotiation and their decision to accept this settlement agreement on behalf of the class was made after a thorough evaluation of all relevant factors, including the competence, experience and tenacity of opposing counsel. There has been no suggestion that these settlements were not conducted in good faith at arms length. Because this settlement “bears the imprimatur of seasoned and experienced counsel ...,” Blank v. Talley Industries, Inc., 64 F.R.D. 125, 132 (S.D.N.Y.1974), the court has particular confidence that the agreement is in the best interests of the class.

CONCLUSION

Therefore, the court finds that the Phelps Dodge settlement provides the class members with a significant and unopposed benefit which, when weighed against the costly and uncertain prospect of obtaining judgment at trial, is clearly in the interest of the class as a whole. Relying on these factors, the judgment of experienced class counsel that the settlement is acceptable, and the absence of objection by any class member after due notice, the court approves the settlement as fair, reasonable and adequate.

JUDGMENT ORDER

AND NOW, this 20th day of February, 1985, for the reasons stated in the foregoing Memorandum, the court finds- that:

1. The terms of the Agreement of Settlement are fair, reasonable, and adequate to the class.
2. All class members have been served with notice of the proposed Agreement of Settlement and the hearing thereon, either directly or by publication in accordance with the court’s order of October 29, 1984 directing same.
3. Notice by mail and publication was the best practicable in the circumstances.

THEREFORE, it is ORDERED that:

1. This settlement is approved on behalf of the following class, except all members who have excluded themselves and are listed in Exhibit A:

All individuals, proprietorships, partnerships, corporations and other business entities in the United States (excluding defendants, their parents, subsidiaries and affiliates, and their alleged co-conspirators) who have, during the time period January 1, 1975 through November 30, 1982 (the “covered period”), purchased copper water tubing directly from one or more of the defendants (including defendants’ parents, subsidiaries and affiliates) or their alleged co-conspirators.

2. Each plaintiff and member of the class who did not timely exclude itself is deemed to have agreed forever to refrain from proceeding against defendant Phelps Dodge Industries, Inc., its successors, assigns, affiliates, subsidiaries and predecessors, and any and all of its present and former directors, employees and agents, on any claims and causes of action which have been, might have been, are now or could be asserted in this action, and which are based upon allegations of collusion, combination or conspiracy or other conduct which might have been asserted under the federal antitrust laws with respect to the sale of copper water tubing during the period January 1, 1975 to November 30, 1982.

3. Without affecting the finality of this judgment in any way, this court reserves jurisdiction over the implementation of the settlement, including approving a final plan of distribution, resolving disputed claims by any class member, and awarding attorneys’ fees and any additional expenses.

4. In accordance with the court’s findings herein, the Clerk of the Court is directed to enter final judgment pursuant to Fed. R.Civ.P. 54(b).

      . Reading Industries, Inc. ("Reading”), which was then in bankruptcy proceedings in the United States Bankruptcy Court for the Eastern District of Pennsylvania, was, however, named as a co-conspirator. Pursuant to an order of the Bankruptcy Court and at the direction of Reading’s secured creditors, virtually all of Reading’s assets were sold to an unrelated entity. As a result, Reading was not an operating company and had no assets with which to respond to a judgment. Plaintiff for itself and on behalf of a putative class therefore could not pursue any claims against Reading in this litigation, though any putative class members could pursue claims in Bankruptcy Court.

      . On April 4, 1983, plaintiffs had moved for leave to file a joint consolidated amended complaint naming Phelps Dodge and the indicted individuals as additional defendants in Civil Action No. 82-4921. The court refused to permit this and required instead that claims against the individual defendants be severed and stayed. (Subsequently, the individual defendants were dismissed). The court coordinated the Phelps Dodge cases with Civil Action No. 82-4921 (the Master File case) for pretrial purposes.

      . Phelps Dodge paid $2.5 million into escrow on November 21, 1983; to date interest in excess of $300,000 has been earned.

      . On January 16, 1985, Phelps Dodge, having available the list of class members who excluded themselves from the class (Exhibit A attached hereto), notified the court that it would not exercise its right to withdraw from the settlement.

      . Prior to trial, Reading and the Revere Companies entered pleas of nolo contendere to the charges against them.

      . For purposes of these settlements, plaintiffs and defendants Phelps Dodge, Howell, Halstead and the Revere Companies all agreed to the following settlement class:
      All individuals, proprietorships, partnerships, corporations and other business entities in the United States (excluding defendants, their parents, subsidiaries and affiliates, and their alleged co-conspirators) who have, during the time period January 1, 1975 through November 30, 1982 (the ‘covered period’), purchased copper water tubing directly from one or more of the defendants (including defendants’ parents, subsidiaries and affiliates) or their alleged co-conspirators.

      . Pretrial Order No. 11 stayed discovery on the merits until the court determined the issue of class certification. The settlement was reached prior to this determination.

      . Another form of most favored nation clause is designed to preserve a "damage ratio”; that is, the clause ensures that future settlements recover for the class at least a certain percentage of the (tainted) sales reflecting price-fixing by defendants.


source: Caselaw Access Project

author: JOSÉ A. CABRANES, District Judge:

license: Public Domain

text:
    In re NEW HAVEN GRAND JURY. In re Anthony R. MARTIN-TRIGONA, Debtor.
    Misc. Civ. Nos. H 85-11, H 83-62.
    United States District Court, D. Connecticut.
    Feb. 21, 1985.

      Anthony R. Martin-Trigona, Danbury, Conn., pro se.

    Albert S. Dabrowski, Asst. U.S. Atty., Hartford, Conn., for the United States.
   RULING ON CORRESPONDENCE ADDRESSED TO THE CLERK REGARDING THE TRANSMISSION OF A CONFIDENTIAL COMMUNICATION TO A GRAND JURY

JOSÉ A. CABRANES, District Judge:

The question presented is whether an individual has a right to communicate with a federal grand jury, absent a request from the grand jury, without the approval of the United States Attorney or a judge. It is a question faced with increasing frequency by courts confronted by a variety of persons who profess to lack confidence in the judgment of prosecutors and judges and who believe themselves to be the most appropriate instruments for the vindication of the interests of justice. I conclude that, as a general proposition, such private prosecutorial initiatives are not permitted by law; in any event, they are wholly unwarranted in the circumstances presented here.

Introduction

On May 24, 1984, the Office of the Clerk at the New Haven Seat of Court conveyed to me a letter dated May 16, 1984 and a sealed enclosure written by a notorious pro se litigant and addressed to the Clerk. Captioned “Re: UNITED STATES GRAND JURY FOR THE DISTRICT OF CONNECTICUT SITTING AT NEW HAVEN,” the text of the letter requested the Clerk to convey the sealed enclosure to the New Haven grand jury outside the presence of the United States Attorney, and admonished the Clerk not to “tamper” with the sealed enclosure or to turn it over to the United States Attorney. The wording of the letter to the Clerk, coupled with this correspondent’s history of hostility to judges here and elsewhere, makes it appear that he also wishes to avoid judicial scrutiny of his communication with the grand jury.

By order entered May 29, 1984, I invited the United States Attorney to comment on this correspondence. In response, the United States Attorney took the position that the court should not convey the documents in question to the grand jury until requested to do so by its foreperson. See Response of the United States Attorney (filed June 6, 1984) (“Response”).

A consideration of applicable law and the full record of these proceedings yields the inescapable conclusion that neither a grand jury target nor a private complainant has a right to communicate directly, in writing or otherwise, with a federal grand jury without the approval of a prosecutor or judge. There is no constitutional, statutory, or common law right to communicate directly with a federal grand jury without the participation of a prosecutor or judge, and attempts to transmit written communications directly to a grand jury may constitute a crime.

In any event, because this correspondent has a well-documented history of persecuting innocent persons through abuse of legal processes, he may not appear before a federal grand jury in this District until and unless he is invited or ordered by a grand jury to do so and he may not have communications conveyed to a grand jury without the approval of the United States Attorney or the court.

I.

It is settled that a target of a grand jury investigation — that is, a person whose indictment the grand jury is considering— does not have a right to appear as a witness before the grand jury. United States v. Ciambrone, 601 F.2d 616, 622-623 (2d Cir.1979); United States v. Thompson, 144 F.2d 604, 605 (2d Cir.) (L. Hand, J.) (“the practice [of a target of an investigation appearing before a grand jury] was utterly unknown at common law ... [Although grand juries have in recent times occasionally invited persons, whose conduct they are examining, to appear, they are never obliged to do so[.]”), cert. denied, 323 U.S. 790, 65 S.Ct. 313, 89 L.Ed. 630 (1944); see also United States v. Salsedo, 607 F.2d 318, 319 (9th Cir.1979); United States v. Smith, 552 F.2d 257, 261 (8th Cir.1977); United States v. Donahey, 529 F.2d 831, 832 (5th Cir.), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976); Duke v. United States, 90 F.2d 840, 841 (4th Cir.), cert. denied, 302 U.S. 685, 58 S.Ct. 33, 82 L.Ed. 528 (1937).

It apparently is the policy or practice of some federal prosecutors to afford some targets or potential targets of grand jury investigations an opportunity to testify before the grand jury prior to the grand jury’s determination whether to indict. See, e.g., Response at 4-5 (description of access to New Haven grand jury that might be afforded to a potential target of that grand jury by the Office of the United States Attorney for the District of Connecticut). Whatever the merits of such policies or practices, it is clear that they are entirely within the discretion of the prosecutor and are in no sense required by law.

If, as the cases cited above make clear, a target of an investigation has no right to appear before the grand jury — to present evidence, to submit his views, or to bolster his credibility — it is reasonable to conclude that a target has no right to convey that evidence or those views to the grand jury in writing or to attempt to bolster his credibility with the grand jury through a written communication in lieu of a personal appearance.

Indeed, the initiation by a private party of written communications with a grand jury, with the exception of a request for an opportunity to appear, may constitute a crime. See 18 U.S.C. § 1504. The statute on jury tampering by written communications is instructive because “[t]he purpose of 18 U.S.C.[] § 1504 was to prevent anyone from attempting to bring pressure upon or [to] intimidate a grand juror by a written communication with that intent.” United States v. Smyth, 104 F.Supp. 283, 299 (N.D.Cal.1952). The statute prohibits written communications addressed to the grand jury as a body and intended to be seen by all of the jurors, as well as those addressed to an individual juror. See Duke v. United States, supra, 90 F.2d at 841 (target of a grand jury investigation convicted under predecessor statute to 18 U.S.C. § 1504 for transmitting a letter to grand jury foreman with purpose of “get[ting] before the grand jury [his] contentions and unsworn statements”).

■ It is evident that a potential target of a grand jury investigation would have no greater right to communicate in person or in writing with the grand jury than would an actual target, since the interests of a potential target would be that much more remote. Since a target would have no right to communicate with the grand jury, it follows that a potential target also would have no right to communicate with the grand jury.

II.

A complainant or informer has no greater right to appear before a grand jury or to communicate directly with it in writing than does a target or potential target of a grand jury. See People v. Parker, 397 Ill. 305, 74 N.E.2d 523, 525-526 (1947) (per curiam) (rejecting First Amendment challenge to a state court criminal contempt conviction for mailing letter to grand jury foreman alleging a conspiracy between a newspaper, prosecutors and politicians) (“Parker II ”), aff'd per curiam by equally divided court, 334 U.S. 816, 68 S.Ct. 1082, 92 L.Ed. 1747 reh’g denied, 334 U.S. 840, 68 S.Ct. 1184, 92 L.Ed. 1764 (1948); United States v. Kilpatrick, 16 F. 765, 769, 771 (W.D.N.C.1883) (there is “no right to communicate private information to a grand jury for the purpose of obtaining a presentment” and it is a crime for “any individual, acting as a volunteer, to approach or communicate with the grand jury in reference to any matter which either is or may come before [it].”); Charge to Grand Jury, 30 F.Cas. 992, 994-995 (C.C.D.Cal.1872) (No. 18,255) (Field, Circuit Justice).

As noted, direct communication with a grand jury may be a crime under 18 U.S.C. § 1504. Describing the frequency of private communications to the grand jury “filled with malignant and scandalous imputations” against judges and others, and the damage to the grand jury system that such communications cause, Justice Field described the then-recently-enacted predecessor to 18 U.S.C. § 1504 as intended to secure the grand jury “from intimidation or personal influence of every kind.” Charge to Grand Jury, supra 30 F.Cas. at 995. He instructed the grand jury to turn over such communications to the prosecutor for use against the originators. Id.

III.

It has been observed that the grand jury functions both as “a sword and a shield of justice.” United States v. Cox, 342 F.2d 167, 186 (5th Cir.) (Wisdom, J., concurring), cert. denied sub. nom. Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). See generally United States v. Calandra, 414 U.S. 338, 342-346, 94 S.Ct. 613, 617-19, 38 L.Ed.2d 561 (1974). As a sword, the function of the grand jury is, in the words of Professor Lester B. Orfield, “to bring to trial persons accused of crime upon just grounds.” Orfield, The Federal Grand Jury, 22 F.R.D. 343, 394 (1958). As a shield, the grand jury’s function is “to protect persons against unfounded or malicious prosecutions by insuring that no criminal proceeding will be undertaken without a disinterested determination of probable guilt.” Id.

Although Professor Orfield has noted that “[t]he [investigative or] inquisitorial function has been called the more importante]” id., the grand jury’s shield function remains significant. Indeed, it has been said that “[t]he Grand Jury earned its place in the Bill of Rights by its shield, not by its sword.” United States v. Cox, supra, 342 F.2d at 186 (Wisdom, J., concurring). The grand jury remains

a primary security to the innocent against hasty, malicious and oppressive prosecution ... standing between the accuser and the accused ... to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.

Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962). See M. Frankel & G. Naftalis, The Grand Jury 22, 120 (1977) (stressing protective functions of the grand jury); Wickersham, The Grand Jury: Weapon Against Crime and Corruption, 51 A.B.A.J. 1157, 1157-1161 (1965) (same).

A rule that would permit anyone to communicate with a grand jury without the supervision or screening of the prosecutor or the court would compromise, if not utterly subvert, both of the historic functions of the grand jury, for it would facilitate the pursuit of vendettas and the “gratification of private malice.” Charge to Grand Jury, supra, 30 F.Cas. at 994-995. A rule that would open the grand jury to the public without judicial or prosecutorial intervention is an invitation to anyone interested in trying to persuade a majority of the grand jury, by hook or by crook, to conduct investigations that a prosecutor has determined to be inappropriate or unavailing. The protection of society at large, as well as the preservation of the grand jury as an instrument of justice, requires that the court place limits on direct and unsupervised communications with the grand jury by disgruntled individuals who may have personal axes to grind.

“Runaway grand juries” — a potential result or goal of any rule favoring unsupervised access to a grand jury — may have a certain romantic allure, but federal law leaves little or no room for that species of romance.

It is true, of course, that a federal grand jury cannot be compelled to follow a course of action desired by either the prosecutor or by the court, and it is the grand jury that determines whether there is probable cause to believe that an offense has been committed. It is equally true, however, that no grand jury, “runaway” or otherwise, is vested with the discretionary power to determine whether á prosecution shall be commenced or maintained. It is well to remember that the commencement of a federal criminal case by submission of evidence to a grand jury is “an executive function within the exclusive prerogative of the Attorney General,” In re Persico, 522 F.2d 41, 54-55 (2d Cir.1975); see also United States v. Chanen, 549 F.2d 1306, 1312-1313 (9th Cir.1977); that “in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another[,]” Leeke v. Timmerman, 454 U.S. 83, 85-86, 102 S.Ct. 69, 70, 70 L.Ed.2d 65 (1981), quoting Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973); and that “the decision to prosecute is solely within the discretion of the prosecutor,” id. at 87, 102 S.Ct. at 71; see also United States v. Cox, supra, 342 F.2d at 171. Accordingly, a rule that would afford the general public unsupervised access to the grand jury is a rule calculated to empower the mischievous and the criminal and injure the innocent.

Any person may bring evidence of wrongdoing by a third party to the attention of the federal prosecutor. If a com-, plainant is frustrated by a prosecutor’s decision not to prosecute, it does not follow that the complainant should have unsupervised recourse to the grand jury. Because the powers exercised by a grand jury are great, and because they are exercised largely in secret, they are subject to the supervision of a judge, Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972), “to prevent [wrongs] before [they] occurQ.” United States v. Calandra, supra, 414 U.S. at 346, 94 S.Ct. at 619. If a complainant believes that the prosecutor wrongfully has ignored a legitimate and significant report of illicit conduct, he may make an application to the court concerning access to the grand jury. Charge to Grand Jury, supra, 30 F.Cas. at 994; United States v. Kilpatrick, supra, 16 F. at 769. Private prosecutions vanished from our system of jurisprudence centuries ago, along with trial by battle.

The oft-noted principle that “the public ... has a right to every man’s evidence,” see, e.g., United States v. Dionisio, 410 U.S. 1, 9, 93 S.Ct. 764, 769, 35 L.Ed.2d 67 (1973), Branzburg v. Hayes, supra, 408 U.S. at 688 & n. 26, 92 S.Ct. at 2660 & n. 26, does not suggest, much less compel, a different resült. That principle merely states the historically grounded obligation of every person, regardless of rank or station, to appear and give evidence before a grand jury in response to a grand jury subpoena. It does not follow from this principle that individuals have a right to appear before a grand jury or otherwise to communicate their views or opinions to a grand jury.

IV.

Having concluded that there is no right to communicate directly with a federal grand jury, the question remains how to treat the materials conveyed to the Clerk by this particular correspondent.

A.

The Clerk’s Office correctly refused to convey the correspondence to the grand jury in the absence of instructions to do so from the presiding judge. The Clerk acts only as an administrative arm of the court, and the Clerk’s Office staff is neither trained nor authorized to exercise independent discretion with respect to communications addressed to a grand jury impanelled by a judge of the court and working closely with the United States Attorney’s Office. Neither the Clerk nor his staff may determine independently whether or not a communication may be forwarded to the grand jury. At most, personnel of the Clerk’s Office, as agents of the court, may receive a communication addressed to the grand jury and forward it to the appropriate judge.

B.

Since its enactment in 1872, the statute on jury tampering by written communications has made it a crime to

attemptf] to influence the action or decision of any grand or petit juror of any court of the United States on any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter____

18 U.S.C. § 1504 (formerly 18 U.S.C. § 243). The statute was amended in 1948 (in the course of a general revision of the criminal laws of the United States) by the addition of a second paragraph:

Nothing in this section shall be construed to prohibit the communication of a request to appear before the grand jury.

The Reviser’s Note to the 1948 revision of 18 U.S.C. § 1504 — the only legislative history available on this statute — states that “[t]he last paragraph was added to remove the possibility that a proper request to appear before a grand jury might be construed as a technical violation of this section.” 18 U.S.C.A. § 1504 (West 1966) (emphasis supplied). Unless the correspondent’s transmittal letter to the Clerk and the accompanying sealed envelope can be regarded as a “request to appear before the grand jury,” they may constitute a violation of 18 U.S.C. § 1504 by the correspondent.

It is questionable whether a letter seeking permission to appear before the grand jury without the knowledge of either the prosecutor or the presiding judge can constitute a /‘proper request to appear” pursuant to the second paragraph of Section 1504. If, as the court has held, prosecutorial or judicial supervision is required, that requirement has not been met here. The transmittal letter and other material at issue were submitted to the Clerk with instructions that they should not be revealed to the prosecutor, and the history of this litigation and the terms of the transmittal letter itself strongly suggest that it also was intended to bypass the judges of this court, and most particularly, the judge to whom all matters involving this correspondent had been assigned many months earlier.

In any case, even if a letter seeking permission to appear before the grand jury without the review of a prosecutor or judge could be a “proper request to appear,” this does not appear to be such a case. A transmittal letter asking the Clerk to submit to the grand jury a sealed envelope is simply not a “request to appear.”

The question remains whether the actions of the correspondent in this instance violated the prohibitions of the first paragraph of Section 1504, either directly or by attempting to have the Clerk, serving as his agent or conduit, do for this correspondent that which the statute prohibits him from doing directly. The possible violation of 18 U.S.C. § 1504 is a matter for the consideration in the first instance of the United States Attorney, to whom that question should be referred.

C.

Assuming arguendo that a transmittal letter such as the one at issue here may be deemed to be an application to the court to convey the attached materials to the grand jury — on the basis that the Clerk is an administrative agent of the court— what standards should govern a judge’s decision with respect to the application? It would appear that a judge confronted by such an extraordinary application must, at a minimum, evaluate its bona fides and facial sufficiency. Without necessarily making a final determination on the merits or purpose of an application, a judge should make a threshold judgment of whether the correspondence is frivolous or vexatious; whether it appears to be designed “as an instrument for the gratification of private malice,” Charge to the Grand Jury, supra, 30 F.Cas. at 994-995, or for the purpose of disrupting the system for the administration of justice; and whether the applicant has sought relief from other appropriate law enforcement authorities. How a judge treats any particular communication of this sort will be determined, of course, by the facts of the particular case.

In the instant case, the court knows nothing about the projected communication with the grand jury because the envelope addressed to the grand jury and conveyed to the Clerk was sealed by its addressor; the Clerk was informed by the transmittal letter that the sealed envelope is a confidential communication for the grand jury. Accordingly, there is no basis for a judge to make even the minimal threshold determinations suggested above. In these circumstances, it would be appropriate for a judge to reject the application summarily and to direct the Clerk to return the communication in question to its addressor, with an indication that this action is taken pursuant to an order of the judge to whom the correspondence was referred by the Clerk.

Conclusion

The decision to bar "the transmission of these materials to the grand jury and to refer the matter to the United States Attorney recognizes the rightful role that the grand jury plays in the administration of our system of justice. The position and integrity of the grand jury in our system of ordered liberty is strengthened by insulating the grand jury from unscreened exposure to those who might use their access to the grand jury for frivolous and vexatious purposes or to disrupt the work of law enforcement authorities. More than a century ago, Justice Field observed that

an impression widely prevails that the institution of the grand jury has outlived its usefulness, an impression which has been created from a disregard of [the] limits [of the scope of grand jury investigations], and the facility with which it has, unfortunately, often been used as an instrument for the gratification of private malice.

Charge to Grand Jury, supra, 30 F.Cas. at 994-995.

Absent the approval of a prosecutor or a judge, a person has no right to communicate directly with a federal grand jury, or to appear before it, unless and until the grand jury requests his appearance. Any future attempts by this correspondent to communicate with a federal grand jury shall be addressed to the United States Attorney or to the judge responsible for the litigation involving this litigant. Moreover, any such communications shall comply with previously established requirements of this court regarding material submitted to a federal forum by this correspondent.

With regard to the question of a possible violation of 18 U.S.C. § 1504, see Section IV. B., supra, the United States Attorney shall be permitted to examine any of the materials in the captioned files in the Clerk’s Office, except for the contents of the sealed envelope that accompanied the transmittal letter to the Clerk. Access, if any, to the contents of the sealed envelope may be obtained only by order of the court upon the filing of an appropriate application accompanied by a memorandum of law. I intimate no view as to the merits of any such application.

If and when the United States Attorney reports to the Clerk that he has no further need of the materials in question, the Clerk shall convey to this correspondent the original copy of his transmittal letter and the accompanying material. A photocopy of the .transmittal letter and of the exterior surfaces of the' accompanying sealed envelope shall be retained in the file for future reference.

It is so ordered.

      . There is a mass of litigation, largely pernicious, in this Circuit and elsewhere associated with the name of Anthony R. Martin-Trigona, the author of the correspondence at issue here. For some background on Martin-Trigona’s abuse of the judicial process, often characterized by harassment of individuals with whom he has had only the slightest contact, see In re Martin-Trigona, 737 F.2d 1254 (2d Cir.1984); see also In re Martin-Trigona, 55 Ill.2d 301, 302 N.E.2d 68 (1973), cert. denied, 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974); In re Martin-Trigona, 573 F.Supp. 1245 (D.Conn.1983); In re Martin-Trigona, 592 F.Supp. 1566 (D.Conn.1984).
      Despite a grant of immunity pursuant to 18 U.S.C. § 6003 and this court’s orders that he testify concerning his financial affairs under Rule 2004 of the Bankruptcy Rules, Martin-Trigona has refused to answer questions properly directed to him by the trustee of his bankruptcy estate. Accordingly, he is now incarcerated for civil contempt of court pursuant to an order of this court that has been affirmed by the Court of Appeals. In re Martin-Trigona, 732 F.2d 170 (2d Cir.1984); In re Martin-Trigona, 742 F.2d 1434 (2d Cir.1984) (unpublished order). See also Martin-Trigona v. Shiff, 702 F.2d 380 (2d Cir.1983); In re Martin-Trigona, 590 F.Supp. 87, 88, nn. 1, 2 (D.Conn.1984). With respect to all matters exposing him to the risk of incarceration, and to all applications for his release, Martin-Trigona has been represented by appointed counsel.

      . The text of the May 16, 1984 letter to the Clerk is as follows:
      Dear People:
      I am enclosing a confidential communication for the Grand Jury sitting in New Haven. I ask that it be presented to the Grand Jury outside the presence of anyone from the U.S. Attorney’s office.

      This letter should be locked in your safe until it can be presented to the grand jury.
      Under the law, it is a confidential communication to the grand jury and should be kept confidential.
      If you have any questions, kindly contact me. Under no circumstances should the confidential envelope be tampered with or turned over to the U.S. Attorney.
      As always, your courtesy and cooperation is appreciated.
      Respectfully submitted,
      ANTHONY R. MARTIN-TRIGONA
      P.O. Box 2002
      New York, NY 10185
      The letter bears Martin-Trigona’s familiar signature monogram.

      . The record of proceedings before this court reveals that this correspondent’s imagined "enemies” include various court-appointed bankruptcy trustees and their counsel, the entire Panel of Interim Bankruptcy Trustees of this District, the two bankruptcy judges of this District, bankruptcy judges in at least two other districts, most of the district judges of the District of Connecticut, all of the active circuit judges of the Second Circuit, the United States Attorney for this District, and the Attorney General of the United States. See generally In re Martin-Trigona, supra, 573 F.Supp. at 1256-1258. See also, e.g., note 1, supra.

      . The capacity in which the correspondent wishes to communicate with the New Haven grand jury is not apparent from his letter to the Clerk, but two general possibilities come to mind. They are: (a) as a target or potential target of a grand jury investigation or (b) as a complainant or informer. The United States Attorney reported that the correspondent is a potential target of the New Haven grand jury. See Response of the United States Attorney (filed June 6, 1984) (“Response”) at 4. At least with respect to the Hartford grand jury, it appears that the correspondent sought to communicate with it as a complainant. See Letter from Albert S. Dabrowski, Assistant United States Attorney to Martin-Trigona (dated May 9, 1984), attached to Response. See generally Certified Official Transcript of Hearing of December 13, 1983 (filed Dec. 16, 1983) at 77.

      . On past occasions, the correspondent has been granted opportunities to communicate with federal grand juries in this District. He was allowed by another judge to address the grand jury sitting at Hartford on February 28, 1983. See Response at 3. Additionally, an envelope that he had sent to the Deputy-in-Charge of the Office of the Clerk in Hartford on November 17, 1983 and that he had requested be given to the grand jury, was delivered on March 20, 1984 by a representative of the Clerk’s Office to the Hartford grand jury, with the permission of the Assistant United States Attorney in charge of supervising the grand jury, as well as with my permission. Id. After considering this second communication from this correspondent, the Hartford grand jury foreperson resealed the envelope and endorsed it as follows:
      The contents of this envelope were delivered to the Grand Jury on March 20, 1984. The Grand Jury has examined the contents and it is the decision of the Grand Jury to conduct no further investigation in connection with this matter. We do not desire to summon or hear from [the addressor].

        Id. at 4. The grand jury foreperson then personally redelivered the envelope to a representative of the Office of the Clerk, with instructions that it “be kept under seal until further Order of the Court." Id. at 3.
      It appears that the letter of May 16, 1984 that is now before the court ”follow[ed] notice to the addressor, by letter dated May 9, 1984, that the Hartford grand jury, which also received and examined a sealed envelope submitted to them by the addressor, did ‘not desire to summon or hear from [the addressor].’ ” Id. at 2-3.
      Each of these earlier opportunities to communicate directly with a federal grand jury was the result of decisions by a judge or prosecutor, or both, upon consideration of requests by this correspondent. Those earlier decisions were, therefore, entirely consistent with the principle that a person may initiate communications with a grand jury only with the approval of a prosecutor or judge. It is clear, in any case, that this particular correspondent already has been afforded greater grand jury access than that to which he is entitled as a matter of law. See note 11, infra.

      . Entitled "Influencing juror by writing,” the statute provides that
      [wjhoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined not more than $1,000 or imprisoned not more than six months, or both.
      Nothing in this section shall be construed to prohibit the communication of a request to appear before the grand jury.
      For a discussion of the applicability of Section 1504 to this case, see notes 17-21, infra, and accompanying text.

      . Section 1504 does not prohibit a grand jury from directly receiving confidential communications where the grand jury has “solicited” or "indicated a willingness to receive” such communications, United States v. Smyth, supra, 104 F.Supp. at 299. The facts of the instant case do not fit within that limited exception because the grand jury has neither "solicited” nor “indicated a willingness to receive” any communication from this correspondent. See, e.g., note 5, supra.

      . The editors of one leading criminal procedure-casebook have suggested, in reliance on Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962) and Thomas v. Crevasse, 415 F.2d 550 (5th Cir.1969), that a right directly to transmit written communications to a grand jury "arguably” may be found in the First Amendment to the United States Constitution. Y. Kamisar, W. LaFave & J. Israel, Modem Criminal Procedure: Cases, Comments, Questions, 720 n. c (5th ed. 1980). Nothing in these cases suggests the existence of a First Amendment right of a complainant to communicate in writing, or otherwise, with a grand jury. The authorities relied upon by these editors invoke the First Amendment only with reference to protections afforded to public dissemination of material critical of the grand jury; they lend no support to a general right of direct access to the grand jury in the federal courts. See Wood v. Georgia, supra, 370 U.S. at 379-383, 391-392, 82 S.Ct. at 1367-1369, 1373-1372; Thomas v. Crevasse, su

        pra, 415 F.2d at 551-552. The petitioner in Wood had been convicted by the state trial court not only for publicly criticizing the grand jury, but also for directly communicating with the grand jury. However, this latter conviction was not considered by the United States Supreme Court, because it was reversed on state law grounds by the Georgia appellate court. 370 U.S. at 383, 82 S.Ct. at 1369; Wood v. Georgia, 103 Ga.App. 305, 119 S.E.2d 261, 272 (1961). As this casebook correctly observes, the Illinois Supreme Court decision in People v. Parker, 374 Ill. 524, 30 N.E.2d 11 (1940) ("Parker I") and 18 U.S.C. § 1504 are two authorities that effectively reject the proposition they find "arguable." See also 313 U.S. 560, 61 S.Ct. 836, 85 L.Ed. 1520 (1941) (denial of a petition to the United States Supreme Court for a writ of certiorari in Parker I) and People v. Parker, 397 Ill. 305, 74 N.E.2d 523, 525-526 (1947) (per curiam ) ("Parker II"), aff'd per curiam by equally divided court, 334 U.S. 816, 68 S.Ct. 1082, 92 L.Ed. 1747, reh’g denied, 334 U.S. 840, 68 S.Ct. 1184, 92 L.Ed. 1764 (1948) (authorities not mentioned by casebook). See notes 9 and 10, infra, and accompanying text.
      Without precluding the possibility of some exceptional circumstances not now anticipated, the court simply does not find in the First Amendment or elsewhere a requirement that direct access to a grand jury must be provided to a member of the public without the review and supervision of a prosecutor or a judge.

      . In Parker II, a case strikingly similar to this one, it was noted that Parker previously (in Parker I) had been convicted of contempt of court for an even more “vicious and inflammatory" letter to the grand jury that alleged that various wrongs had been committed by his enemies against his family. See Parker I; Parker II, 74 N.E.2d at 525. See also note 10, infra, and accompanying text.

      . While the Supreme Court’s affirmance of a decision by an equally divided court has no binding precedential value, Hertz v. Woodman, 218 U.S. 205, 213-214, 30 S.Ct. 621, 622-23, 54 L.Ed. 1001 (1910); Laird v. Tatum, 409 U.S. 824, 837-838, 93 S.Ct. 7, 14-15, 34 L.Ed.2d 50 (1972) (memorandum of Rehnquist, J.); Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir.1978), this court finds persuasive the reasoning of the Illinois Supreme Court in Parker II (concerning the absence of a federal constitutional right of a complainant to communicate directly with a grand jury).

      . In Charge to Grand Jury, supra, Justice Field instructed grand jurors that they were not to
      ... allow private prosecutors to intrude themselves into [their] presence, and present accusations. Generally such parties are actuated by private enmity, and seek merely the gratification of their personal malice.
      30 F.Cas. 994.
      His observations are especially apt with re-' spect to the case at hand. The person here seeking access to the grand jury has an "established practice" of abusing legal processes to harass "anyone who so much as crosses his path.” In re Martin-Trigona, supra, 737 F.2d at 1263. His "persistence, viciousness, and general disregard for decency and logic,” are amply documented in published decisions of this and other courts. Id. at 1259, quoting In re Martin-Trigona, supra, 573 F.Supp. 1245 (and cases cited therein). Even assuming arguendo that there exists some limited right of direct access by private parties to federal grand juries, the past misconduct of this correspondent and his earlier limited and supervised access to federal grand juries indicate that he has had more than enough access to federal grand juries. See note 5, supra.

      Moreover, any application by this correspondent seeking access to a federal grand jury now would be governed by the terms of an Order of Permanent Injunction, Sections IV., V., In re Martin-Trigona, 592 F.Supp. 1566, 1572-1573 (D.Conn.1984), entered pursuant to the directions of the Court of Appeals, In re Martin-Trigona, supra, 737 F.2d at 1264, that generally limits his capacity to use the courts and other fora for harassment and sport. See note 23, infra, and accompanying text.

      . See Frankel & Naftalis, supra, at 22, 107-116 (on "runaway grand juries” in "extraordinary situations”). See also, e.g., Powell to Enter Tax Plea Friday, N.Y. Times, May 13, 1958 at 24, col. 2; Buckley Queried on Powell Jury, N.Y. Times, May 14, 1958 at 24, cols. 2-3 (report of an example of alleged "runaway” federal grand jury investigation of Representative Adam Clayton Powell with respect to which the columnist and publisher William F. Buckley, Jr. was questioned for sending copies of an article to the federal grand jury but apparently was not criminally sanctionable because foreman had requested him to do so).
      Different, but somewhat related, issues are raised by the efforts of an individual grand juror to challenge the exercise of prosecutorial discretion and the collective decision of the grand jury by conducting a personal investigation and later publicly announcing his displeasure with the results of the grand jury process.
        See, e.g., Juror Says Prosecutors Fought Murder Counts, N.Y. Times, Aug. 25, 1984 at 27, cols. 5-6; The Merits and Demerits of the Grand Jury System, N.Y. Times, Sept. 30, 1984 at E6, cols. 2-4. Because the grand juries in this District, and apparently their individual members, have shown no independent interest in this correspondent, no such issues are presented in this case. See notes 5 and 7, supra. Different questions might be presented if the grand jury had taken the initiative, absent prosecutorial or judicial supervision, to solicit this correspondent's views.

      . If the United States Attorney declines to act on information supplied by this particular correspondent, that refusal may well result from characteristic deficiencies in the quality or veracity of the correspondent’s allegations and from the fact that his litigation historically has been characterized by deliberate misrepresentations, delusions of persecution, and, more recently, virulent anti-semitism. See generally notes 1 and 3, supra.

      . Limiting access to the grand jury raises the theoretical spectre of a total breakdown of the judicial, system in which judges and prosecutors conspire to prevent certain charges from reaching the grand jury. It was to protect against such institutional aberrations that Wood v. Georgia, supra, enunciated First Amendment protection for public criticism of grand juries. See note 8, supra. In fact, judicial and prosecutorial corruption in the past have generated political pressure resulting in the appointment of special prosecutors who then conducted their own inquiries with the aid of the grand jury. See, e.g., Campbell, Eliminate the Grand Jury, 64 J.Crim.L. & Criminology 174, 179, 181 (1973). Non-judicial remedies are always available in the hypothetical and extraordinary situation in which all judicial safeguards have been rendered impotent by massive corruption.
      Noting the inherent limits on the grand jury’s role in our system of law, Justice Field observed, while instructing the grand jury, that
      [wjhen the court does not deem [a] matter of sufficient importance to call your attention to it, and the district attorney does not think it expedient to submit the matter to your consideration, ... we think it may be safely inferred that public justice will not suffer, if the matter is not considered by you.

        Charge to Grand Jury, supra, 30 F.Cas. at 994.

      . See generally United States v. Cox, supra, 342 F.2d at 186-187 (Wisdom, J., concurring); Charge to Grand Jury, supra, 30 F.Cas. at 995, n. 3; S. Milsom, Historical Foundations of the Common Law 406-410 (2d ed. 1981); Grand Jury Reform: Hearings on HR. 94 Before the Sub-comm. on Immigration, Citizenship, and International Law of the House Comm, on the Judiciary, 95th Cong., 1st Sess. 58-64 (1977) (“Hearings") (statement of Prof. John Scott, Legal Historian, Rutgers University School of Law).

      . United States v. Dionisio, supra; Branzburg v. Hayes, supra. See also United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950); Blackmer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 255, 76 L.Ed. 375 (1932).

      . The second paragraph of the statute that became Section 1504 was added in the context of a complete revision of the federal criminal code (Title 18, U.S.C.) in 1948. See Legislative History for New Title 18, United States Code Crimes and Criminal Procedure, 1948, U.S.C.Cong.Serv. (West) (1948) ("Legislative History"). The Supreme Court has noted that
      The revision of the Criminal Code was ... a massive undertaking, but, as the Senate Report on that legislation made clear, "[t]he original intent of Congress is preserved." S.Rep. No. 1620, 80th Cong. 2d Sess., 1 (1948)____ The House Report stated that "[r]evision, as distinguished from codification, meant the substitution of plain language for awkward terms, reconciliation of conflicting laws, omission of superseded sections, and consolidation of similar provisions." H.R.Rep. No. 304, 80th Cong., 1st Sess., 2 (1947). Revisions in the law were carefully explained in a series of Reviser’s Notes printed in the House Report. Id., at Al, et seq.

      ... To read a substantial change in accepted practice into a revision of the Criminal Code without any support in the legislative history of that revision is insupportable. As this Court said in United States v. Ryder, 110 U.S. 729, 740 [4 S.Ct. 196, 201, 28 L.Ed. 308] (1884): “It will not be inferred that the legislature, in revising and consolidating the laws, intended to change their policy, unless such an intention be clearly expressed.”

        Muniz v. Hoffman, 422 U.S. 454, 468-470, 95 S.Ct. 2178, 2186-87, 45 L.Ed.2d 319 (1975) (footnote omitted). “The House Report states that '[t]he reviser’s notes ... explain in detail every change made in text.’ H.R.Rep. No. 304, 80th Cong., 1st Sess., 9 (1947).” Id. at 469 n. 9, 95 S.Ct. at 2187 n. 9. See Legislative History, supra, at 2436-2437 (discussion of the Title 18 revision process and personnel); Muniz v. Hoffman, supra, 422 U.S. at 470 n. 10, 95 S.Ct. at 2187 n. 10 (same).

      . More recent efforts in Congress to change federal grand jury processes indicate a continuing legislative understanding that the "request to appear" contemplated by the second paragraph . of Section 1504 is limited in content and is supposed to be directed to the prosecutor or to a judge prior to transmission to the grand jury. See generally H.R. 94, 95th Cong., 1st Sess. § 6(a) (1977), reprinted in Hearings, supra, 964, 976-977 (proposed statute providing that a person may make a written request directed to the prosecutor for an appearance before a federal grand jury; that the prosecutor shall forward such request to the grand jury, along with a recommendation if desired by the prosecutor; and that the grand jury may deny such request to appear); H.R. 3150, 95th Cong., 1st Sess. § 6(a) (1977), reprinted in Hearings, supra, 1041, 1053-1054 (same); H.R. 3736, 95th Cong., 1st Sess. § 5(a) (1977), reprinted in Hearings, supra, 1149, 1157-1158 (same); H.R. 2620, 95th Cong., 1st Sess. § 4(a) (1977), reprinted in Hearings, supra, 1020, 1036 (proposed statute providing that any person may request permission of court to appear before grand jury and that court shall permit appearance "unless such testimony ... would serve no relevant purpose”).
      One of the major purposes of these bills, each entitled "Grand Jury Reform Act," was to strengthen the grand jury’s "independence” from the prosecutor. See, e.g., Hearings, supra, at 2-3 (statement of Representative Eilberg, sponsor of H.R. 94). That these bills, designed to "reform” the grand jury system by limiting the influence or role of the prosecutor, assumed and required prosecutorial or judicial oversight of requests to appear before a federal grand jury strongly indicates a well-nigh universal assumption that a direct approach to the grand jury would not be a proper "request to appear” under Section 1504.

      . It may be the practice of certain prosecutors occasionally to convey to grand juries materials submitted by a target or complainant without first examining them, if such materials are accompanied by a nonconfidential “request to appear." In such cases, Section 1504 presumably would not be violated, because it is the prosecutor (and not a third party such as the Clerk) who submits the materials to the grand jury following a consideration of the request to appear. This is clearly not the case here.

      . The requirement of prosecutorial or judicial supervision cannot be circumvented merely by seeking to convey documents to the grand jury through the Clerk (on the premise that the Clerk is an agent of the court, see Section IV. C., supra ). If such circumvention were to be permitted, the statute would be rendered meaningless, because it would thus be possible to avoid the prohibition of the first paragraph of Section 1504 by the simple expedient of routing the prohibited communication through the Clerk. See notes 3, 4, and 5, supra, and accompanying text.

      . For an example of what may constitute a proper request to appear, see generally Defendant’s Request to be Permitted to Testify Before Grand Jury, McKinney’s N.Y.Crim.Proc.Forms § 190.50, Form 5 (Request to appear form used in New York state court, where unlike federal courts, targets and indicted persons have a right under state statute to appear before grand jury; form addressed to grand jury foreman and prosecutor and only mentions existence of investigation and waiver of immunity).

      . In this instance, this disposition is amply reinforced by the unambiguous record of this particular correspondent for abuse of legal processes and persistent efforts to obstruct the system for the administration of justice. See, e.g., In re Martin-Trigona, supra, 737 F.2d at 1259-1263.

      . See Order of Permanent Injunction, Sections IV., V., In re Martin-Trigona, supra, 592 F.Supp. at 1572-1573. See note 11, supra, and accompanying text.


author: MUECKE, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. WHITE MOUNTAIN APACHE TRIBE, et al., Defendants.
    No. CIV 81-1606 PCT-CAM.
    United States District Court, D. Arizona.
    Feb. 21, 1985.

      A. Melvin McDonald, U.S. Atty., Elizabeth Jucius Dunn, Michael A. Johns, Asst. U.S. Attys., Phoenix,- Ariz., and Pauline H. Milius, Dept, of Justice, Washington, D.C., for plaintiff.
    Robert C. Brauchli, Tribal Atty., White Mtn Apache Tribe, White River, Ariz., William H. Veeder, Washington, D.C., for defendants.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

MUECKE, District Judge.

Having considered plaintiff’s motion for summary judgment, the memoranda and arguments of counsel, and the entire record, and there being no genuine issues of materia] fact, the Court enters the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. The plaintiff in this action is the United States of America.

2. The defendants are the White Mountain Apache Tribe, the White Mountain Apache Tribal Court, and named members of the Tribal Court and Tribal Council.

3. The reservation of the White Mountain Apache Tribe, the White Mountain Apache Indian Reservation, is also known as the Fort Apache Indian Reservation. The Fort Apache Indian Reservation is located in Arizona.

4. The United States holds legal title to the lands and appurtenant water rights within the Fort Apache Indian Reservation, and the White Mountain Apache Tribe has beneficial title thereto.

5. The Secretary of the Interior is the executive officer of the United States with primary responsibility for administration of Indian affairs. The Secretary has significant management authority over all Indian reservations, including the Fort Apache Indian Reservation.

6. The Secretary, together with the Attorney General, carries out the United States’ responsibility to the Tribe to protect and defend reservation lands and resources. Implied in these authorities and responsibilities is the right to go onto reservation lands, with or without the consent of the Tribe, in order to perform official business and to carry out other duties imposed by Congress and required by the government’s duty to protect Indian resources.

7. This lawsuit was precipitated by an order of the White Mountain Apache Tribal Court of December 23, 1981. That order purportedly enjoined Interior Department employees from transmitting materials to the Department of Justice to support a water claim to be filed January 4, 1982, on behalf of the Tribe in the Maricopa County Superior Court state water proceeding (No. W-l through No. W-4). This action filed December 30, 1981, sought temporary, preliminary, and permanent injunctive and declaratory relief, restraining the defendants from interfering with the United States’ officers or other representatives in performance of their official duties, including preparation and filing of water rights claims in the Maricopa County Superior Court state water adjudication. In February, 1982, the United States moved for summary judgment.

8. This action and the state water adjudication were stayed pending a resolution by the Supreme Court of Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 103 S.Ct. 3201, 77 L.Ed.2d 837 (1983). Following decision by the Supreme Court in July, 1983, and the Ninth Circuit’s order on remand of December 9, 1983, Northern Cheyenne Tribe v. Adsit, 721 F.2d 1187 (9th Cir.1983), Judge Goodfarb of the Maricopa County Superior Court on April 27, 1984, gave the United States a January 4, 1985, deadline for filing all Indian reserved water rights claims on the upper Salt River, which encompasses a claim on behalf of the White Mountain Apache Tribe. In June, 1984, the Maricopa County Superior Court by order required the United States to file such claims by January 4, 1985.

9. In order to complete work on the United States’ water claim to be filed on behalf of the White Mountain Apache Tribe, federal officials, including those of the Department of Interior, and their agents, contractors, or other representatives must gain access to thé Fort Apache Indian Reservation to gather data and perform certain studies.

10. The federal officials and their representatives who through this lawsuit seek access to the Fort Apache Reservation do so to perform official business on that Reservation. The United States must have access to the Fort Apache Indian Reservation to complete preparation of its claim for filing in the ongoing state water adjudication in the Maricopa County Superior Court. The United States has a continuing need of access to the reservation as well during the course of that litigation proper to prepare, perhaps amend, and defend the water claim.

CONCLUSIONS OF LAW

1. This court has jurisdiction under 28 U.S.C. 1345.

2. Defendants are located or reside within the Fort Apache Indian Reservation in Arizona and are within the territorial jurisdiction of this Court.

3. An action to enjoin an agent of the United States from performing his official duties is an action against the United States and barred by the doctrine of sovereign immunity absent consent of Congress. See Larson v. Domestic and Foreign Commerce Corporation, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963).

4. Indian tribes, through the arm of their tribal courts or otherwise, are without authority to regulate, restrict or limit in any way the activities of federal officials conducting official business on reservations. Armstrong v. United States, 306 F.2d 520 (10th Cir.1962); United States v. Blackfeet Tribe, 364 F.Supp. 192, 194 and 369 F.Supp. 562 (D.Mont.1973); Stone v. United States, 506 F.2d 561 (8th Cir.1974), cert. denied, 420 U.S. 978, 95 S.Ct. 1405, 43 L.Ed.2d 659 (1975).

5. The federal government’s duties to manage and protect reservation lands and resources necessarily override the Tribe’s sovereign power to exclude nonmembers. Any authority the Tribe has to exclude non-members from the reservation does not extend to federal officials performing official business on the reservation. See Escondido Mutual Water Co. v. LaJolla Indians, — U.S. -, 104 S.Ct. 2105, 2118 n. 30, 80 L.Ed.2d 753 (1984); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144-147, 102 S.Ct. 894, 905-906, 71 L.Ed.2d 21 (1982).

6. The defendants are without authority to restrict or limit in any way the activities of any officers, agents, employees, contractors, or other representatives of the United States in the performance of their official duties on or off the Fort Apache Indian Reservation, where such duties relate in any way to the preparation and filing of water right claims on behalf of the White Mountain Apache Tribe in the Maricopa County Superior Court state water adjudication.

7. The United States is accordingly entitled to summary judgment in this action.


author: RICE, District Judge.

text:
    Florence RYMAN, Plaintiff, v. Joseph REICHERT, et al., Defendants.
    No. C-3-82-564.
    United States District Court, S.D. Ohio, W.D.
    Feb. 22, 1985.
    Michael Tucker, Dayton, Ohio, for plaintiff.

      Wayne P. Stephan, Michael Russell, Dayton, Ohio, for defendants.
   DECISION AND ENTRY SUSTAINING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OVERRULING THAT FILED BY PLAINTIFF; TRIAL DATE VACATED; FURTHER PROCEDURES ORDERED

RICE, District Judge.

This lawsuit arises out of the termination of Plaintiff’s employment as a desk officer with the Mad River Township Police Department. Plaintiff’s termination occurred as a result of a decision by the Mad River Township Board of Trustees to abolish the position of desk officer and to establish the position of police clerk in its place. In her Amended Complaint, Plaintiff alleges that the termination of her employment resulted in a deprivation of property without due process of law and that the termination was arbitrary and capricious, not rationally related to any legitimate governmental purpose and deprived her of the equal protection of the laws. Further facts and circumstances surrounding this action are set forth in this Court’s Decision and Entry of October 21, 1983 (Doc. # 28).

In the Decision and Entry of October 21, 1983, the Court overruled Plaintiff’s and Defendants’ motions for summary judgment. Directing its attention to the question of whether Plaintiff had a property interest in continued employment, a necessary predicate for Plaintiff’s claim that she was denied employment without due process, the Court concluded that a genuine issue of material fact remained as to whether Plaintiff had such a property interest. Under the leading case of Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), the question of whether a person has a property interest in continued employment must be decided with reference to state law. In the Decision and Entry of October 21, 1983, the Court reviewed the facts and circumstances surrounding Plaintiff’s termination and the impact of state law upon that termination. The Court noted that Defendants did not discharge Plaintiff. Rather, her job was abolished. Under state law, an appointing authority may abolish a position with the concomitant result that an employee loses her job, subject to the one important limitation that the appointing authority may not abolish a position as a mere subterfuge to rid itself of a particular employee.

The parties did not address the question of subterfuge in their motions for summary judgment; therefore, the Court directed the parties to file cross motions for summary judgment, addressing the question of whether the presence of subterfuge by the Defendants raises a genuine issue of material fact. Additionally, the Court directed the parties to address the questions of whether the availability to Plaintiff of the remedy of mandamus in state court, to order her reinstatement with back pay upon a finding that her job abolishment was a subterfuge, is a sufficient remedy so that the Court must conclude that, under the Supreme Court’s rule in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Plaintiff suffered no deprivation of property without due process. The parties have filed their motions and memoranda. See, Docs. #30, 31, 33, 34. It is to those motions that the Court now turns. Initially, the Court will address the question of whether the abolishment of Plaintiff’s job was a mere subterfuge. Then, the Court will address the issues raised by Parratt v. Taylor, supra.

In the recent case of Weston v. Ferguson, 8 Ohio St.3d 52, 457 N.E.2d 818 (1983), the Ohio Supreme Court restated the guidelines that courts must follow in determining whether a job abolishment is a mere subterfuge:

It is well-established that the power to create a position in the civil service includes the power to abolish it. State ex rel. Stine v. McCaw (1940), 137 Ohio St. 13, 27 N.E.2d 488 [17 O.O. 303], paragraph one of the syllabus; State, ex rel. Stoer v. Raschig (1943), 141 Ohio St. 477, 49 N.E.2d 56 [26 O.O. 56], paragraph one of the syllabus. This is particularly true where the purpose of such abolishment is economy or the increased efficiency of the public service. Id. Thus, an appointing authority has the power' to abolish civil service positions pursuant to a plan of reorganization.
The critical guideline in the abolishment of a civil service position is that it must be done in good faith and not as a subterfuge. State, ex rel. Stoer v. Raschig, supra; State, ex rel. McGann v. Evatt (1941), 138 Ohio St. 421, 35 N.E.2d 576 [20 O.O. 546]. A civil service employee may not be removed under the guise of abolishing his office when in fact the transaction amounts to no more than a change in the name of the position and the appointment of another person, the duties remaining substantially the same. State, ex rel. Miller v. Witter (1926), 114 Ohio St. 122, 150 N.E. 431. The theory is that a position may be abolished, but not the person. Howie v. Stackhouse (1977), 59 Ohio App.2d 98, 392 N.E.2d 1081 [13 O.O.3d 158]. The actual duties will be examined in order to determine whether a civil service job has been abolished in good faith or as a subterfuge. State, ex rel. Click v. Thormyer (1958), 105 Ohio App. 479, 151 N.E.2d 246 [6 O.O.2d 220]. Thus, an order abolishing a position is ineffective where a completely new appointee is hired to perform the same duties, State, ex rel. Miller v. Witter, supra, but a dismissal is valid when it is done for purposes of economy or improved public service and there is no ulterior motive. State, ex rel. v. Stoer v. Raschig, supra; State, ex rel. McGann v. Evatt, supra.

Id. at 53-54, 457 N.E.2d at 819-20.

Herein, Plaintiff argues that there is no genuine issue of material fact regarding-the issue of whether the abolishment of her job was a subterfuge. Plaintiff asserts that the uncontested facts demonstrate that the Defendants abolished the position of desk officer as a subterfuge as a matter of law. See, Doc. # 31. In response, Defendants likewise contend that the question of whether the abolishment of Plaintiffs job was a mere subterfuge does not raise a genuine issue of material fact. Defendants contend that as a matter of law there was no subterfuge. See, Docs. # 30 and # 34.

The Court has reviewed the evidence before it and concludes that whether the abolishment of Plaintiffs job was a subterfuge does not raise a genuine issue of fact in that, as a matter of law, there was no subterfuge in the abolishment of her job. Therefore, as a matter of state law, since Plaintiff had no entitlement to or property interest in continued employment, she had no property interest to be protected. Accordingly, Plaintiff suffered no deprivation of property, with or without due process of law.

In reaching its conclusions, the Court relies on the depositions on file, the exhibits to Plaintiffs Motion for Summary Judgment (Doc. # 31), which the parties have agreed are authentic, and the Affidavit of Defendant Joseph Richert, attached to Defendant’s Motion for Summary Judgment (Doc. # 30). This evidence reveals that the positions of desk officer and police clerk are similar. Indeed as Plaintiff argues, her position, that of desk officer, is essentially secretarial and clerical. The position of a police clerk is secretarial and clerical. Yet the Plaintiff ignores two important distinctions between the positions. The position of desk officer must be filled by a full-time patrolman. There is no such requirement for the position of police clerk. More importantly, Plaintiff’s salary was approximately $18,000 per year. The salary for police clerk is approximately $10,000 per year.

Plaintiff points to the similarities between the two positions and argues that these similarities establish subterfuge as a matter of law. The Court accepts Plaintiff’s characterization of the similarities between the jobs. Nonetheless, the Court concludes that under state law and under the present circumstances, the similarities are not enough to establish subterfuge. On the contrary, the uncontested evidence demonstrates that the position of desk officer was abolished in good faith and not as a subterfuge. The Ohio Supreme Court has clearly stated that an appointing authority may abolish a position for the purpose of economy. Weston v. Ferguson, supra. In the present case, Defendants abolished Plaintiffs job and created one with similar duties but which did not have to be filled by a full-time patrolman. Both jobs were essentially secretarial and clerical. However, the Defendants were able to save the Township nearly $8,000 per year in salary. Indeed, the affidavit of Joseph Reichert demonstrates that the sole reason for abolishing Plaintiffs job was to save money. Plaintiff has not filed an affidavit which contradicts Reichert’s affidavit. Therefore, the Court concludes that under state law, Plaintiff’s position was abolished in good faith rather than as a subterfuge. Accordingly, the Court hereby sustains Defendants’ Motion for Summary Judgment and overrules that filed by Plaintiff.

Assuming, arguendo, the existence of a property interest under state law, the Defendants alternatively move for summary judgment on the basis of Parratt v. Taylor, supra. In Parratt, a prisoner’s hobby materials were misplaced by prison authorities. The prisoner sued under 42 U.S.C. § 1983 alleging a predeprivation of property without due process. Initially, the Supreme Court noted that a pre-deprivation hearing was not practicable. Therefore, the Supreme Court examined the post-deprivation remedies that the state provided. The Court concluded that the state’s tort claims procedure was adequate to protect the prisoner's interests. Accordingly, the Court concluded that even though the prisoner may have suffered a deprivation of property, the deprivation was not without due process of law.

In applying Parratt to cases where an employee is discharged from government employment, the Sixth Circuit has consistently held that due process requires some sort of predischarge hearing. Lee v. Western Reserve Psychiatric Habilitation Center, 747 F.2d 1062 (6th Cir.1984); Loudermill v. Cleveland Board of Education, 721 F.2d 550 (6th Cir.1983), cert. granted, — U.S. -, 104 S.Ct. 2384, 81 L.Ed.2d 343 (1984). Therefore, the Sixth Circuit has concluded that post-discharge procedures do not adequately protect the discharged employee’s interests, and Parratt does not apply. Lee, supra. Lee and Loudermill would seemingly control the outcome in this case. However, because the manner in which Plaintiff’s employment was terminated is distinct from the terminations in Lee and Loudermill, a job abolishment as opposed to discharges, this Court concludes that Lee and Loudermill are distinguishable. Moreover, for reasons that follow, the Court concludes that under the unique circumstances present herein, due process does not require a pretermination hearing.

To reach its conclusion in Loudermill that due process requires a pre-discharge hearing, the Sixth Circuit undertook an analysis of the factors set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). 721 F.2d at 561-63. In Mathews, the Supreme Court said:

These decisions underscore the truism that “ ‘[d]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895 [81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230] (1961). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 [92 S.Ct. 2593, 2600, 33 L.Ed.2d 484] (1972). Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected. Arnett v. Kennedy [416 U.S. 134, 167-68, 94 S.Ct. 1633, 1650-51, 40 L.Ed.2d 15 (1974)] (Powell, J., concurring in part; Goldberg v. Kelly [397 U.S. 254, 263-66, 90 S.Ct. 1011, 1018-20, 25 L.Ed.2d 287 (1970)]; Cafeteria Workers v. McElroy, supra, [367 U.S.] at 895 [81 S.Ct. at 1748], More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

424 U.S. at 334-35, 96 S.Ct. at 902-03.

Applying the first Mathews factor, the Loudermill court recognized that the interest in continued public employment “unquestionably is of vital importance.” 721 F.2d at 561. It goes without saying that this Court follows Loudermill in this part of the Mathews analysis. Plaintiff had a vitally important interest in continued employment. However, Plaintiff’s interest herein is somewhat different from that of the discharged employee in Loudermill. Herein, there is no risk that Plaintiff suffered stigma as a result of losing her job because she was not discharged; her job was abolished. On the contrary, the court in Loudermill recognized the potential for stigma when an employee is discharged. Id.

It is in applying the second Mathews factor that the present analysis departs most strikingly from that in Loudermill. Therein, the Court noted that a limited opportunity to present evidence is critical because the more information concerning an employee that government has, the better its decisions about that employee are likely to be. Id. at 562. In other words, government should hear from an employee prior to discharging him in order to minimize the risk of error. These concerns are not present herein. The Defendants did not purport to act on the basis of Plaintiff’s job performance. Rather, the job that Plaintiff occupied was abolished. Thus, there is no need for Plaintiff to have an opportunity to present evidence on her job performance since that evidence would not have been relevant to the Defendants’ decision to abolish her job.

An application of the third Mathews factor reveals that the interests of the government herein are distinct from those recognized in Loudermill. Here, the Defendants were acting legislatively in accordance with a statutory grant of authority to “determine the number of patrolmen and other personnel required by the district.” Ohio Rev.Code § 505.49(A). The decision to abolish Plaintiff’s job was not an administrative decision. In Loudermill, the court characterized the government’s interests involved as avoiding excessive administrative burdens and ensuring effective employee discipline. While these were recognized as salutary, they were not sufficient to counterbalance the interests of the employee and the utility of a hearing which demanded a pre-termination hearing. Here, the government interest is of greater magnitude: the freedom to legislate without being required to give those affected by the legislation an individualized hearing prior to enacting such legislation.

The Court concludes that notwithstanding the compelling nature of Plaintiff’s interest in continued employment, a pre-abolishment hearing was not required. Cf. BiMetallic Investment Co. v. Colorado, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915) (Due process does not require a hearing when government adopts a rule of conduct which applies generally). Because the Defendants were acting legislatively and in the absence of any utility in affording Plaintiff a hearing, the Court concludes that on balance due process did not require that Plaintiff be afforded a hearing prior to her termination.

Having concluded that due process does not require a pretermination hearing, the next step in the analytical process is to determine whether the post-abolishment remedy of mandamus is sufficient under Parratt for this Court to conclude that Plaintiff did not suffer a property deprivation without due process. In Campbell v. Shearer, 732 F.2d 531 (6th Cir.1984), the court held that a plaintiff in a 1983 action who alleges the deprivation of property without due process has the burden of pleading and proving that state remedies are inadequate to redress the alleged wrong. Id. at 533. See also, Vicory v. Walton, 721 F.2d 1062 (6th Cir.1983). In the present case, Plaintiff has failed to demonstrate that the post-abolishment remedy of mandamus is inadequate. Mandamus would afford Plaintiff reinstatement and back pay. Plaintiff argues that the availability of attorney’s fees under 42 U.S.C. § 1988 and the unavailability of same under state law renders state procedure inadequate. This Court cannot agree. To hold otherwise would eviscerate Parratt and its progeny.

Based upon the foregoing, the Court hereby sustains Defendants' Motion for Summary Judgment (Doc. # 30) and overrules that filed by Plaintiff. The Court has concluded that as a matter of law Plaintiff did not have a property interest in continued employment and that even assuming arguendo that Plaintiff had such a property interest, she was not deprived of same without due process of law. This resolves Plaintiff’s “First Cause of Action.” However, Plaintiff’s “Second Cause of Action,” which sets forth claims for denial of equal protection and substantive due process, remains. Defendants’ Motion for Summary Judgment did not address these claims. Accordingly, the Court hereby vacates the previously set trial date and directs Defendants to file a motion for summary judgment addressing the claims set forth in Plaintiff’s Second Cause of Action within thirty days of notification by Plaintiff’s counsel as to whether this action will continue. See, footnote 5, supra. The parties shall thereafter brief the motion in conformity with the local rules.

      . The Plaintiff relies on State, ex rel. Miller v. Witter, 114 Ohio St. 122, 150 N.E. 431 (1926) and argues that the mere savings in salary is not a sufficient reason to justify the abolishment of a position. While there is language in Witter which supports this argument, the Court does not believe that it represents the current state of Ohio law. In Weston v. Ferguson, supra, the Ohio Supreme Court clearly said that the purpose of economy was a reason for abolishing a job.

      . In her deposition, Plaintiff said she did not believe that her job was abolished because of money. Ryman Dep. at 35. This is not sufficient to create a genuine issue of fact because it simply fails to set forth facts within the Plaintiff’s personal knowledge which would demonstrate that her job was abolished for a reason other than economy. See, Rule 56(e).

      . The present case is also distinguishable from Lee, supra, because the Defendants’ actions were not done pursuant to an established state procedure. On the contrary, state law requires a hearing and finding of cause before a township can discharge a patrolman. Ohio Rev.Code §§ 505.491-505.495. However in the present case, Plaintiff’s job was abolished.

      . Plaintiff cannot question the availability of mandamus. Indeed, it is through the remedy of mandamus that Ohio courts have limited the power of appointing authorities to abolish jobs. Mandamus has created the subterfuge exception. It is this exception which is the basis for Plaintiffs claim that she had a property interest in continued employment. The Court discussed the availability of mandamus in its Decision and Entry of October 21, 1983 (Doc. #28).

      . Since the dictation of this Decision and Entry, the Court has received word that the Plaintiff had become deceased. The Court notes that § 1983 actions generally survive the death of the person whose civil rights were violated. See, Jaco v. Bloechle, 739 F.2d 239 (6th Cir.1984). The Court directs Plaintiffs counsel to inform both the Court and counsel for Defendants, within twenty days of the receipt of this Decision and Entry whether this action will continue or whether it will be dismissed.