Herbert J. Varner v. TOM MONOHAN , Director, Illinois Department of Human Services

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2310
H ERBERT J. V ARNER ,
Petitioner-Appellant,
v.
T OM M ONOHAN , Director,
Illinois Department
of Human Services,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 04 C 2065—Matthew F. Kennelly, Judge.
____________
A RGUED A PRIL 10, 2006—D ECIDED A UGUST 18, 2006
____________
Before E ASTERBROOK , R IPPLE , and R OVNER , Circuit
Judges.
E ASTERBROOK , Circuit Judge. Illinois is among the states
that permit indefinite civil commitment of certain sexual
offenders. In 1998 Illinois initiated proceedings under the
Sexually Violent Persons Commitment Act (“SVPA”), 725
ILCS 207/1 to 207/99, to commit Herbert Varner, a repeat
sex offender who refused to participate in treatment
programs during his 13-year sentence for the sexual assault
of his five-year-old niece.
The SVPA calls for the civil confinement of any person,
previously convicted of a sex offense, who is found beyond

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2 No. 05-2310
a reasonable doubt to be a “sexually violent person”. 725
ILCS 207/35(d)(1), 207/40(a). A jury heard evidence that
Varner had sexually abused several children, including his
daughter and two nieces. Expert witnesses testified that he
suffers from a mental disorder. Varner’s own submission
that he assaulted one niece while believing that she is his
wife supports that diagnosis. The jury was instructed that
a “person who has been convicted of a sexually violent
offense and who is dangerous because he or she suffers from
a mental disorder that makes it substantially probable that
the person will engage in acts of sexual violence” comes
within the SVPA. State v. Varner, 198 Ill. 2d 78, 82, 759
N.E.2d 560, 562 (2001). See 725 ILCS 207/5(f). The jury
found in the state’s favor on each of these questions, and
the court ordered Varner to be detained for institutional
care until safe to release—an issue that may be reviewed
annually on his request.
Varner argued to the state judiciary that the SVPA
violates the due process clause of the fourteenth amend-
ment because it allows a person to be detained without a
specific finding that he lacks control over his sexually
violent conduct. He relied principally on a decision by
the Supreme Court of Kansas. The Supreme Court of
Illinois rejected this argument as a matter of both state and
federal law, expressly disagreeing with the Kansas
decision—as the Supreme Court of the United States later
did. Kansas v. Crane, 534 U.S. 407 (2002). But Crane
adopted an intermediate position, so the Supreme Court
of the United States directed the Supreme Court of Illi-
nois to reconsider Varner’s contentions. See Varner v.
Illinois, 537 U.S. 802 (2002).
The Supreme Court of Kansas had held that civil commit-
ment is permissible only if the evidence establishes that a
person is utterly unable to control sexually violent conduct.
The Court rejected this “absolutist approach” in favor of
requiring only “proof of serious difficulty in controlling

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No. 05-2310 3
behavior.” Crane, 534 U.S. at 411-13. That left the question
whether the findings by Varner’s jury satisfy this standard.
The Supreme Court of Illinois held that they do. It con-
cluded that Crane does not require a specific determination
that a person lacks the ability to control his behavior. State
v. Varner, 207 Ill. 2d 425, 432, 800 N.E.2d 794, 798 (2003).
Such a determination may be inferred from other findings,
the court thought. Varner next sought federal collateral
review, contending that the Supreme Court of Illinois’s
understanding of Crane violated the fourteenth amend-
ment. The District Court denied his petition for a writ of
habeas corpus. 361 F. Supp. 2d 762 (N.D. Ill. 2005).
Varner insists that the state judiciary’s conclusions are
“contrary to, or involve an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States”, 28 U.S.C. §2254(d)(1),
because the Supreme Court of Illinois held that the jury
need not return a special verdict on the question framed by
Crane: whether a potential committee has “serious difficulty
in controlling behavior.” The argument that Crane requires
a specific jury finding that a potential committee cannot
control his conduct—that inferences from other findings
cannot serve—has been rejected by this court in Laxton v.
Bartow, 421 F.3d 565 (7th Cir. 2005), as well as by the
ninth circuit in Brock v. Seling, 390 F.3d 1088 (9th Cir.
2004).
Laxton arose from Wisconsin’s equivalent to the SVPA.
The Supreme Court of Wisconsin ruled that serious diffi-
culty in controlling behavior is implied by the findings that
its statute requires. We held that this conclusion is not
objectively unreasonable or contrary to Crane. Laxton’s jury
was instructed that the state must prove that he
was “dangerous to others because he has a mental disorder
which creates a substantial probability that he will engage
in acts of sexual violence.” Laxton, 421 F.3d at 568. Varner’s
jury made functionally identical findings, from which it

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4 No. 05-2310
follows that Illinois’s resolution of this issue is no more
contrary to Crane than Wisconsin’s was. In Illinois, as in
Wisconsin, a conclusion of serious difficulty in controlling
behavior is implicit in the jury’s finding that it was “sub-
stantially probable” that Varner would engage in future
acts of sexual violence.
The jury found that: (1) Varner has a mental disorder, as
a result of which (2) it is likely that he will commit new
sexually violent offenses if released. The proposition that
the mental disorder causes sexual offenses implies inability
to exercise self-control—for, if Varner can control his
behavior, then either proposition (1) or (2) must be false.
Crane held that the Constitution requires findings that
separate inability to control from unwillingness to con-
trol—that is, to separate the sick person from the vicious
and amoral one. The former is a proper subject of civil
commitment; the wicked person, by contrast, must be left to
the criminal law (with recidivist enhancements). 534 U.S.
at 413. The Court thought this rule necessary to prevent
fear of recidivism from leading to indefinite preventive
detention. Both Illinois and Wisconsin have adopted
statutes that differentiate the sick from the depraved.
Neither state used the precise language that the Court did
in Crane, but the Constitution is about substance rather
than verbiage. Once a jury has found mental illness and a
likelihood of future offenses, it has drawn the line the Court
thought essential.
Crane recognized that the line is a fuzzy one. It is corre-
spondingly hard to see how a state that tries to draw the
same sort of distinction as the Court did, though in
a slightly different way, could be said to transgress “clearly
established Federal law”; even if the state court is wrong, it
is not clearly or unreasonably so, and correction therefore
must come on direct review by the Supreme Court of the
United States rather than on collateral review by the
inferior courts under §2254. The Supreme Court has told us

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No. 05-2310 5
that civil commitment of persons with both mental defects
and dangerous proclivities comport with the Constitution.
See e.g., Kansas v. Hendricks, 521 U.S. 346 (1997); Allen v.
Illinois, 478 U.S. 364 (1986); Minnesota ex rel. Pearson v.
Probate Court of Ramsey County, 309 U.S. 270 (1940).
Crane does not disturb these holdings, though it does add a
degree of uncertainty.
While stating that the Constitution prohibits commitment
“without any lack-of-control determination”, the Court
rejected the proposition that the Constitution requires a
showing of “total or complete lack of control.” Crane, 534
U.S. at 411-12 (emphasis in original). Where between these
two extremes a person’s difficulty in controlling his behav-
ior must fall remains open to decision one case at a time,
and this implies the absence of a “clearly established” rule
that the state judiciary could transgress. See Brock, 390
F.3d at 1091 (“Crane speaks to outer limits rather than
specific elements.”). Given the open-ended nature of due
process, which Crane emphasized, states retain latitude in
fashioning the details of their systems of civil commitment.
See Crane, 534 U.S. at 413-14. Cf. Lockyer v. Andrade, 538
U.S. 63, 76 (2003); Laxton, 421 F.3d at 572.
Offering a fall-back argument, Varner maintains that
Illinois has violated the equal protection clause by distin-
guishing between the civil-commitment regimes for people
who have, and have not, been convicted of sex offenses. In
addition to the SVPA, which applies to people such as
Varner who have criminal records, Illinois has enacted the
Sexually Dangerous Persons Act (“SDPA”), 725 ILCS
205/0.01 to 205/12, which authorizes the indefinite civil
confinement of persons who have yet to be convicted of sex
offenses but are deemed likely to endanger others. See 725
ILCS 205/1.01 (“sexually dangerous person” defined, in
part, as requiring only “criminal propensities to the com-
mission of sex offenses”). The Supreme Court of Illinois has
held that civil commitment under the SDPA is proper only

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6 No. 05-2310
if the state establishes beyond a reasonable doubt that the
mental condition causes “serious difficulty controlling
sexual behavior.” People v. Masterson, 207 Ill. 2d 305, 329,
798 N.E.2d 735, 749 (2003).
Illinois argues that Varner has procedurally defaulted the
equal-protection theory because it was first raised in a
petition for rehearing. He responds that this was the first
opportunity to raise it, because it did not arise until
Masterson distinguished the SDPA from the SVPA—and
as Masterson was released the same day as the decision
on remand in his case, it was impossible to present the
argument any earlier. “Impossible” it is not: Varner could
have argued (in the alternative) in his opening briefs that
he is entitled to whatever standard emerges from Master-
son. But it is unnecessary for us to decide whether Illinois
requires such precautionary argumentation, for the equal
protection claim fails on its merits.
The equal protection clause requires similar treatment of
similarly-situated persons; it “does not require things which
are different in fact or opinion to be treated in law as
though they were the same.” Plyler v. Doe, 457 U.S. 202,
216 (1982) (quoting Tigner v. Texas, 310 U.S. 141, 147
(1940)). Rational-basis review applies here—the difference
between a person who has been convicted of sex offenses
(the SVPA) and one who has not (the SDPA) affects neither
fundamental rights nor suspect classes. See Marshall v.
United States, 414 U.S. 417 (1974). A rational relation to a
legitimate government interest thus is all that the Constitu-
tion requires of state law. Heller v. Doe, 509 U.S. 312, 320
(1993). And our conclusion that Illinois’s system comports
with the due process clause establishes that it is supported
by a rational basis. See Chapman v. United States, 500 U.S.
453, 465 (1991) (“so long as the penalty is not based on an
arbitrary distinction that would violate the Due Process
Clause of the Fifth Amendment . . . an argument based on

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No. 05-2310 7
equal protection essentially duplicates an argument based
on due process”).
To the extent that those who are committed as (what
Illinois calls) “dangerous” rather than “violent” persons
are beneficiaries of a higher burden of persuasion, the
rationality of the distinction is evident. Persons committed
under the SDPA have not been convicted of any sex offense;
of course the state requires additional assurance of their
danger before they can be confined. The difference between
those with a criminal record of sexual offenses and those
without is vital. Cf. Richardson v. Ramirez, 418 U.S. 24
(1974) (state laws that disfranchise convicted felons do not
violate the equal protection clause). Commitment under the
SDPA is a form of preventive detention of persons who have
not been found guilty of a crime of sexual violence; it is
sensible (if it is not compulsory) to give these persons
additional protection in the form of a higher burden that
the state must surmount.
A FFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-18-06

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