Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 84 C 10388-Harry D. Leinenweber, Judge.
Posner, Coffey, and Easterbrook, Circuit Judges.
EASTERBROOK, Circuit Judge.
Noise from O'Hare Airport is the subject of this case. Lawrence C. Bieneman, who bought a parcel of land near O'Hare in 1967 and has become a frequent flier, commenced this suit as a class action on behalf of all other residents of northern Illinois adversely affected by noise.*fn1 Bieneman contended that the City of Chicago (which operates O'Hare) and the airlines using O'Hare intentionally reduced the value of his land by propagating noise and the chemicals in aircraft exhaust. Two counts of the complaint alleged a deprivation of property without due process, a third alleged a taking, and other counts made claims under state tort law.
Decisions by three district judges have left Bieneman empty-handed. Judge Decker dismissed the claims alleging deprivations of property without due process on the ground that entitlements to be free from nuisances and related torts are not "property" within the meaning of the Due Process Clause. Judge Duff, to whom the case was transferred, dismissed the remaining claims. 662 F. Supp. 1297 (N.D. Ill. 1987). Any taking occurred no later than 1976, Judge Duff concluded, so that this suit, filed in 1984, is untimely. The state claims presented under the court's pendent jurisdiction all had been preempted by federal statutes and regulations, Judge Duff concluded in reliance on Luedtke v. County of Milwaukee, 521 F.2d 387, 391 (7th Cir. 1975). Although Judge Duff reserved decision on the complaint's demand to proceed as a class action, 662 F. Supp. at 1298 n.1, Bieneman filed a notice of appeal. After we dismissed this as premature, 838 F.2d 962 (7th Cir. 1988), Bieneman asked the district court to certify a class limited to some of the legal issues in the case. By then the case had been transferred to Judge Leinenweber, who denied the motion. Judge Leinenweber doubted whether Bieneman, who had lost the case on the merits, was an adequate representative of the class; at all events, the judge thought that the prospect of inconsistent decisions on legal questions was insufficient to call for certification of a class, given the disparate interests of the many thousands of persons affected by operations at O'Hare Airport. Bieneman again appeals, this time from a final judgment.
Bieneman contests the district court's refusal to certify the case as a class action. Unless the district court abused its discretion, we must respect its decision. Patterson v. General Motors Corp., 631 F.2d 476, 480 (7th Cir. 1980); Adashunas v. Negley, 626 F.2d 600, 605 (7th Cir. 1980); Susman v. Lincoln American Corp., 561 F.2d 86, 90 (7th Cir. 1977). There was no abuse. Bieneman's proposed class contained at least 300,000 persons. Some of these undoubtedly derive great benefit from increased operations at O'Hare, which make the area attractive for business and may increase the value of land, even as they make land less attractive for residential purposes. The magnitude of any effect on residential owners depends on topography, flight patterns, and many other variables; homeowners who want to sell to businesses (or are in areas zoned for business) may benefit from extra flights and so oppose homeowners differently situated. No wonder courts routinely decline to certify classes in airport-noise cases. E.g., Virginians for Dulles v. Volpe, 344 F. Supp. 573, 575 (E.D. Va. 1972), affirmed in relevant part, 541 F.2d 442 (4th Cir. 1976); Town of East Haven v. Eastern Airlines, Inc., 331 F. Supp. 16, 18 (D. Conn. 1971), affirmed, 470 F.2d 148 (2d Cir. 1972); Ario v. Metropolitan Airports Comm'n, 367 N.W.2d 509 (Minn. 1985); City of San Jose v. Superior Court of Santa Clara County, 12 Cal. 3d 447, 525 P.2d 701, 115 Cal. Rptr. 797 (1974).
Conceding this, Bieneman insists that the district court should have certified a class for purposes of legal questions only, such as preemption and the length of the statute of limitations. Such a class could prevent inconsistent outcomes in multifarious cases, achieving the objective of Fed. R. Civ. P. 23(b)(1). Maybe so; some courts have given class treatment to questions of law while reserving issues of fact for individual resolution. Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1196-97 (6th Cir. 1988); In re Agent Orange Product Liability Litigation, 818 F.2d 145, 166-67 (2d Cir. 1987); In re School Asbestos Litigation, 789 F.2d 996, 1008-10 (3d Cir. 1986). That this may be done does not mean that it must be. A court does not abuse its discretion in failing to employ novel procedural devices, especially when there are serious doubts about the adequacy of the plaintiffs representation of the class, even about the existence of a case or controversy with regard to a certification of the sort Bieneman proposes. A class limited to legal claims (such as identifying the period of limitations), leaving the class members to file separate suits if they want to take advantage of the ruling, does not resolve any concrete case, and it looks suspiciously like a request for an advisory opinion. (Sterling, Agent Orange, and similar opinions contemplated that questions not covered by the class certification would be resolved by further proceedings in the same case, avoiding this problem.)
Bieneman filed this case as a class action yet pursued it for more then three years without asking the district court to certify a class; he appealed, leaving the class behind, and recovered his zeal to serve as representative only on learning that disposition of the class claim was essential to his own claim. We suggested on the first appeal that "a class representative who has lost on the merits may have a duty to the class to oppose certification, to avoid preclusive effect of the judgment". 838 F.2d at 964. Bieneman nonetheless pressed on. What he pressed, however, was a motion for partial certification, abandoning members of the class pleaded in the complaint and many of the issues originally identified for class treatment, in the teeth of our observation that a representative may not unilaterally abandon the class, 838 F.2d at 963. The district court was entitled to doubt that Bieneman is a fit representative of other land owners. See East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 405, 52 L. Ed. 2d 453, 97 S. Ct. 1891 (1977). This is quite enough to support Judge Leinenweber's decision, and we resolve no other questions concerning class certification.
Bieneman alleges that noise and noxious gasses emanating from O'Hare Airport deprive him of property without due process of law, and so allow a remedy under 42 U.S.C. § 1983. The contention is fundamentally that O'Hare is a nuisance, traditionally a subject of state law. Judge Decker believed that maintaining a nuisance does not deprive anyone of "liberty or property" within the meaning of the Due Process Clause. The desire to prosecute a nuisance suit is not based on either liberty or property, the judge held in reliance on Brown v. Brienen, 722 F.2d 360 (7th Cir. 1983), and Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983). As we see things, however, the right question is not whether there is or may be property in a chose in action--to which the answer, if pertinent, is "yes". See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982). Sending waves of noise across a stranger's land can "take" his property, see United States v. Causby, 328 U.S. 256, 90 L. Ed. 1206, 66 S. Ct. 1062 (1946), and therefore must be able to "deprive" him of "liberty or property" too. The property interest is in the land, not in the right to litigate. That the state's conduct concerning the land is tortious does not eliminate a liberty or property element that otherwise exists. Brown, Jackson, and similar cases do not depend on a belief that obnoxious conduct by the state cannot deprive a person of liberty or property. They hold, rather, that the Constitution does not require the state to use civil or criminal process to protect its residents from private aggression or ameliorate the vicissitudes of life. See generally Archie v. City of Racine, 847 F.2d 1211 (7th Cir. 1988) (en banc).
The state is the aggressor in our case, however. The complaint alleges that state actors manage O'Hare Airport so as to inflict injury on private persons. This formally states a constitutional claim. The immediate hurdle for Bieneman, however, is the principle that negligent conduct does not violate the Due Process Clause, Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986), and we added in Archie that grossly negligent conduct should be treated just like negligence. 847 F.2d at 1218-20. To get anywhere, Bieneman must show that the City of Chicago intentionally or recklessly inflicted injury without due process of law. This is so whether he contends that the violation is procedural or substantive.*fn2
No one supposes that the City of Chicago set out to aggravate Mr. Bieneman by jacking up the levels of noise at O'Hare Airport. He is not a member of some prostrate group; owners of land near O'Hare are among the wealthiest and most influential people in Illinois; noise injures without regard to race, religion, and political beliefs. To show "intent" (or at least recklessness), Bieneman maintains that Chicago knows the effect of noise and exhaust gasses, yet does nothing to aid their victims. Put in this way, however, the argument is no different from the one in Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979). Statutes reserving public jobs for veterans assist a group almost all members of which are male. Women seeking the jobs contended that the state must have "intended" to do them injury, because everyone intends the natural and probable consequences of his acts--and the consequences of the preference law were apparent. The Supreme Court took a different view of intent in constitutional law, however, distinguishing knowledge from intent, byproduct from objective. A state may know what its laws do, yet may not "intend" all of the consequences. Some of them may be unwelcome fallout from activities undertaken for another reason. The essential question, as the Court saw things, was whether the state acted "at least in part 'because of,' not merely 'in spite of,' [the] adverse effects upon an identifiable group." 442 U.S. at 279.
Chicago intends to operate O'Hare Airport, knowing that noise and pollution occur. But it does not operate O'Hare because this is the best way to create noise and fumes. These are unwelcome byproducts. A good way to put the intent question is: "If the consequence at issue were smaller, or its effect were reversed, would the actor find the activity less attractive?" If planes made less noise, would Chicago curtail the size and ...