City seeks appeal in 2014 prayer vigil case after federal judge ruled against Ocala

The Ocala Downtown Square is shown in Ocala, Fla. on Tuesday, April 27, 2021. [Bruce Ackerman/Ocala Gazette] 2021.

The Ocala City Council has appealed a federal judge’s decision that a 2014 prayer vigil held in the Ocala Downtown Square was unconstitutional.

The appeal, filed in the 11^th U.S. Circuit Court of Appeals, marks the second time Ocala has appealed U.S. District Judge Timothy Corrigan’s decisions. Corrigan serves in the Ocala Division of the Middle District of Florida.

If the city were to accept Corrigan’s decision, it would have to pay about $500,000 in legal fees to the plaintiffs. If the city wins, there is a chance for the plaintiffs to be responsible for the fees.

Initially, Councilmembers Jay Musleh and Jim Hilty expressed a desire to settle rather than appeal the outcome to put the issue to rest and not defer the accumulated costs to future city councilmembers. When it came to a vote, however, all five city council members voted unanimously to fight the decision.

The city is represented by attorneys Abigail Southerland and Geoffrey Surtees through the American Center for Law and Justice.

“In this case, the city’s involvement was arguably less involved than prior examples of history,” Southerland said. “Here, the police department and select city officials expressed their support for the prayer vigil in light of the crime spree, but private citizens have repeatedly attested to the fact that they took primary responsibility for actually organizing the vigil.”

The vigil, which took place in September 2014, was backed by the late and former Ocala Police Department Chief Greg Graham who asked citizens to pray for the end of violent crime after a series of shootings. After attending the vigil, plaintiffs Art Rojas, Lucinda Hale, Faniel Hale and Frances Jean Porgal filed the lawsuit against the city, Graham and then-Mayor Kent Guinn.

The plaintiffs argued that hosting a government-backed prayer vigil in the Ocala Downtown Square violated the Establishment Clause of the Constitution. Corrigan first ruled in 2018 that the vigil was unconstitutional, then was directed to reconsider the case in 2022 when the city appealed the decision and won in the 11^th Circuit.

This June, Corrigan again ruled that the city violated the constitution by hosting the vigil. Southerland argued that the District Court still relied on the now-defunct Lemon Test in its ruling.

“We do believe there are strong precedents of historical practices that would support a reversal of the District Court’s decision, because the district court seemed focused on case law that evaluated this very issue under the Lemon Test, which the Supreme Court has now ruled is no longer under law,” Southerland said.

The Lemon Test, which originated in 1971 through Lemon v. Kurtzman, previously served as a way for the Supreme Court to measure compliance with the First Amendment. In 2022, the outcome of the case of Kennedy v. Bremerton caused the court to abandon the Lemon Test when the decision supported a high school football coach who lost his job after praying on the field during games.

Because of the Kennedy decision, the 11^th U.S. Circuit Court of Appeals directed Corrigan to reconsider the case in the District Court, and Corrigan again ruled the city of Ocala’s actions to be unconstitutional.

City councilmembers on Tuesday said they again would not accept this result. If this second appeal is unsuccessful, Southerland estimates that the city may have to pay anywhere from $15,000 to $100,000 in additional legal fees to the plaintiffs.

The results of the appeal could potentially serve as a precedent for other local governments and allow the court to dictate similarly what their role must be when involving religion, Southerland said.

“Obviously it’s of great importance to us and to anyone who’s concerned about the way the courts have treated the role of religion in American public life,” Southerland said. “It’s a very concerning decision to leave on the books and leave unchallenged.”

While the former police chief Graham was a defendant in the initial litigation, he died in 2020. Current OPD Chief Michael Balken spoke at the meeting, saying he represented both Graham and the department.

“I’m a person that believes there’s a lot of people waiting to see what you all do. I think it is impactful around this country. Regardless of what happens, well by God, some things are worth fighting for,” Balken said.