Terry Evans appeals from the denial of his motion for a change
of judge and from certain conditions imposed in an order of
As part of a plea agreement, Evans pled guilty to a charge of
rape and an amended charge of unlawful restraint. Other remaining
charges against him were dismissed, including aggravated escape
from custody and criminal damage to property.
Although Evans raises several issues on appeal, we conclude
that his constitutional challenge to certain conditions of
probation will be dispositive of this appeal.
Evans argues that certain conditions of probation which require
church attendance at a specific church and the performance of
1000 hours of maintenance work at the same church violate his
right to the free exercise of religion as guaranteed by the
United States Constitution and the Kansas Constitution. We agree.
The Bill of Rights of the Kansas Constitution provides in part:
"The right to worship God according to the dictates
of conscience shall never be infringed; nor shall
any person be compelled to attend or support any form
of worship; nor shall any control of or interference
with the rights of conscience be permitted, nor any
preference be given by law to any religious
establishment or mode of worship." Kan. Const. Bill
of Rights, § 7 (Emphasis added).
This court has said, "Only those interests of the highest order
and those not otherwise served can overbalance legitimate claims
to the free exercise of religion." Wright v. Raines,
1 Kan. App. 2d 494, 501, 571 P.2d 26, rev. denied 222 Kan. 749 (1977),
cert. denied 435 U.S. 933
In Wright, this court reversed the dismissal without a
hearing of a habeas corpus petition which challenged a Department
of Corrections rule prohibiting facial hair, as applied to a
member of the Sikh religion. In Wright, we stated:
"But we are convinced that such restrictions are not
to be imposed so as to deny the free exercise of an
established religious faith without a proper
determination of compelling state interests in doing
so, and without the further determination that there
are no less restrictive methods of achieving the
object of the regulation." 1 Kan. App. 2d at 501.
We agree that certain conditions of probation may restrict
constitutional rights or freedoms an ordinary citizen might
enjoy. However, any such restrictions must bear a reasonable
relationship to the rehabilitative goals of probation, the
protection of the public, and the nature of the offense. See
United States v. Terrigno, 838 F.2d 371
, 374 (9th Cir. 1988).
In Porth v. Templar, 453 F.2d 330
, 333 (10th Cir. 1971), the
standard for evaluating a restriction of constitutional freedoms
as a condition of probation was stated as follows:
"The sentencing judge has a broad power to impose
conditions designed to serve the accused and the
community. The only limitation is that the conditions
have a reasonable relationship to the treatment of
the accused and the protection of the public. The
object, of course, is to produce a law abiding
citizen and at the same time to protect the public
against continued criminal or antisocial behavior. .
. . . .
". . . This is not to say that one on probation has
the rights of citizens who are not on probation. He
forfeits much of his freedom of action and even
freedom of expression to the extent necessary to
successful rehabilitation and protection of the
public." 453 F.2d at 333-34.
Evans' case differs from the cases which uphold a condition of
probation which restricts a probationer from certain religious
activity or the association with certain groups. For example, in
Malone v. United States, 502 F.2d 554, 555 (9th Cir. 1974),
cert. denied 419 U.S. 1124 (1975), the Ninth Circuit Court of
Appeals upheld a probationary condition that required that Malone
"not belong or participate in any Irish Catholic organizations or
groups." Malone had been convicted of unlawfully exporting
In Evans' case, the order of probation mandates or forces
association with a particular religious group. Such conditions of
probation have been permitted when clearly related to
rehabilitation; for example, a requirement to submit to
psychological counseling. United States v. Stine, 675 F.2d 69,
71 (3d Cir.), cert. denied 458 U.S. 1110 (1982).
Conversely, a condition which required the offender to make his
child legitimate by marrying the mother was rejected as beyond
the authority of the trial court. Michalow v. State, 362 So.2d 456,
457 (Fla. Dist. App. 1978).
We conclude that the imposition of the religious conditions on
Evans unreasonably restricted his constitutional freedom. The
conditions would require Evans to continue association with a
specific church for a five-year period, regardless of whether he
continues to accept its religious beliefs and doctrines. It is
not clear from the record how these conditions could be
characterized as bearing a reasonable relationship to the
protection of the public or the offense committed. Further, it ...