Unpublished Disposition, 924 F.2d 1062 (9th Cir. 1991)

MEMORANDUM^** 

* Gary Lee Corbett appeals pro se the district court's dismissal of his suit under section 1983 and Oregon law for lack of subject matter jurisdiction. Corbett's suit in the district court challenged on state law and state constitutional grounds various state and county actions relating to a state-wide referendum which amended the Oregon Constitution. In addition to these pendent state claims, Corbett also claimed violations of due process and equal protection because he had been unable to bring his challenge to the referendum in state court since he is indigent and could not afford the necessary filing fees. Corbett argued the federal claims provided the court with federal question jurisdiction under 28 U.S.C. § 1331 (1988), and jurisdiction under 28 U.S.C. § 1343(a) (3)-(4) (1988). The court determined Corbett's federal claims were meritless and therefore declined to exercise jurisdiction over the pendent state claims. Corbett timely appeals.

II

We have jurisdiction pursuant to 28 U.S.C. § 1291 (1988). We review de novo a district court's conclusion that it lacked subject matter jurisdiction. United States v. $84,740.00 U.S. Currency, 900 F.2d 1402, 1404 (9th Cir. 1990). We affirm on the basis that under United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966), the district court appropriately exercised its discretion in dismissing the suit.

The Supreme Court has stated that pendent jurisdiction is a "doctrine of discretion" and that district courts generally should decline to hear pendent state claims if the federal claims are (1) jurisdictionally "insubstantial," or (2) dismissed before trial "even though not insubstantial in a jurisdictional sense." United Mine Workers, 383 U.S. at 726; see also Hagans v. Lavine, 415 U.S. 528, 537, 543 (1974). We have approved of both grounds for dismissing pendent claims. City of Las Vegas, Nevada v. Clark County Nevada, 755 F.2d 697, 701 (9th Cir. 1985) (dismissal of pendent claims appropriate where federal claim is " 'patently without merit, or so insubstantial, improbable, or foreclosed by Supreme Court precedent as not to involve a federal controversy.' ") (citation omitted); Nishimoto v. Federman-Bachrach & Associates, 903 F.2d 709, 715 (9th Cir. 1990) (balance weighs in favor of dismissing pendent claims where federal claim is dismissed before trial).

The district court believed Corbett's federal claims were jurisdictionally insubstantial. We agree. In any event, the federal claims properly were dismissed before trial even if they were not insubstantial in a jurisdictional sense.

III

Due Process

In Boddie v. Connecticut, 401 U.S. 371, 374 (1971), the Supreme Court invalidated on due process grounds a state law requiring married couples to pay a filing fee to obtain a legal divorce in court. The Court's decision rested on its finding that: (1) a "fundamental right" was at stake beyond the mere desire to litigate (i.e., the right to marry and divorce); and (2) the state had "monopolized" the means of vindicating that right. Id. The Court did not say indigents must be provided with unrestricted access to the courts in all civil cases.

In United States v. Kras, 409 U.S. 434, 443-46 (1973), the Court rejected an indigent's due process challenge to a federal bankruptcy rule requiring him to pay a filing fee before he could institute a bankruptcy proceeding. The Court reasoned his asserted "right" to have his debt discharged was not of the same fundamental character as the right to be married or divorced.

In Ortwein v. Schwab, 410 U.S. 656, 659 (1973) (per curiam), the Court upheld a state law requiring a $25 filing fee before a claimant could appeal an adverse welfare benefits decision. As in Kras, the Court decided no fundamental right was affected by the state's denial of access to the courts. Id. The indigent's generalized interest in having his claims heard and obtaining benefits was not enough to implicate the Due Process Clause. See also Piatt v. MacDougall, 773 F.2d 1032, 1035 (9th Cir. 1985); Saharoff v. Stone, 638 F.2d 90, 92 (9th Cir. 1980).

There is no fundamental right or interest at stake in this case. Corbett merely wishes to challenge state referendum practices and procedures on state law and state constitutional grounds. His complaints about "taxation without representation" and government malfeasance do not describe a basic federal right of the kind recognized in Boddie.

IV

Equal Protection

Kras and Ortwein held the poor do not form a suspect class, and that filing fee rules restricting court access need only pass the rational basis test. Kras, 409 U.S. at 446; Ortwein, 410 U.S. at 660. The Court in those cases thus had little difficulty sustaining the filing fee rules against an equal protection challenge. Id. The present case is indistinguishable from Kras and Ortwein: there is a rational basis for Oregon to require filing fees of all litigants.

AFFIRMED.