Villages Agree to O'Hare Re-Hearing

Trustees from both Bensenville and Elk Grove Village agreed to seek an "en banc" re-hearing before the full 10-judge panel of the Washington, D.C., circuit federal appeals court.


When it comes to the preservation of their communities in the face of pending O'Hare International Airport expansion, opponents to the program are hoping 10 heads are better than three.

Trustees from both Bensenville and Elk Grove Village, during a joint meeting Tuesday, agreed to seek an "en banc" re-hearing before the full 10-judge panel of the Washington, D.C., circuit federal appeals court. Such a hearing would allow seven additional federal judges to hear the case ruled on Friday by three judges, after which the opponents hope the seven new judges would overrule Friday's decision.

Attorney Christopher Handman of D.C. law firm Hogan and Hartson told the trustees they must appeal last week's decision, within the 45-day window to do so, because the case has issues of great, prominent, national importance, "precisely the sort of issues that a full court of the D.C. circuit should weigh in on and not be bound by the three judges on that panel."

"We all feel that we've earned the right to move this issue forward based on decades of involvement on this issue," said Bensenville Village President John Geils. "We feel that we deserve to have this matter heard on its merits and to get a decision from the D.C. circuit, the seventh circuit or in the case of the Supreme Court initiative if required to effectively adjudicate this issue on the merits of the case."

In its ruling Friday, the federal appeals court 2-1 majority decided that the FAA is not responsible for the decision to level Bensenville's St. Johannes cemetery even though it gave it final approval. Instead, judges directed arguments based on the freedom to exercise religion at Chicago where a similar lawsuit is awaiting a ruling in the federal 7th District Court of Appeals in Chicago.

The lawsuit names Chicago as well as the FAA and makes the same arguments about federal laws meant to protect the exercise of religion unless there is a compelling public interest.

"Just so there's no question in this case, the FAA itself has conceded throughout this case that the actions by the FAA and the city of Chicago (to remove more than 1,300 graves from the cemetery to make room for a new runways) will, in fact, pose a substantial burden to the religious free exercise of these parties," Handman said. "This is not a question that has ever been in dispute in this case."

Construction on other elements remain stalled as property in Bensenville remains tied up in court. The village is also refusing to allow demolition of Chicago-owned houses by extending a moratorium on demolition permits through Dec. 8. Handman said it could be several months before the D.C. courts decide to re-hear the case. But when they do, he said, both villages are ready for a fight to the end.



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