                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1569

                         In the Matter of the Civil Commitment of:
                                 Kenneth Steven Daywitt.

                                   Filed May 23, 2016
                                        Affirmed
                                    Johnson, Judge

                              Olmsted County District Court
                                File No. 55-PR-09-2533

Kenneth Steven Daywitt, Moose Lake, Minnesota (pro se appellant)

Mark Ostrem, Olmsted County Attorney, Rochester, Minnesota (respondent)

         Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and Johnson,

Judge.

                         UNPUBLISHED OPINION

JOHNSON, Judge

         Kenneth Steven Daywitt is a civilly committed sex offender in the Minnesota Sex

Offender Program.      He moved to vacate the district court’s civil-commitment order

pursuant to rule 60.02 of the Minnesota Rules of Civil Procedure. The district court denied

the motion without an evidentiary hearing. We affirm.
                                         FACTS

      In April 2009, Olmsted County petitioned the district court for a determination that

Daywitt is a sexually dangerous person (SDP). In September 2009, the district court

granted the petition and committed Daywitt to the custody of the commissioner of human

services. Daywitt now is in the Minnesota Sex Offender Program (MSOP) at Moose Lake.

      On June 17, 2015, the United States District Court for the District of Minnesota

issued an order in a class-action lawsuit in which it concluded that certain aspects of the

Minnesota Commitment and Treatment Act (MCTA), Minn. Stat. § 253B.001-.24 (2014),

are unconstitutional. Karsjens v. Jesson, 109 F. Supp. 3d 1139, 1173 (D. Minn. June 17,

2015). The federal district court subsequently issued a First Interim Relief Order in which

it ordered certain injunctive relief and retained jurisdiction in anticipation of further

proceedings concerning possible additional remedies. Karsjens v. Jesson, No. 11-3659,

2015 WL 6561712, at *16 (D. Minn. Oct. 29, 2015). The federal district court’s First

Interim Relief Order presently is stayed pending an interlocutory appeal to the United

States Court of Appeals for the Eighth Circuit. Karsjens v. Jesson, No. 15-3485 (8th Cir.

Dec. 15, 2015) (order).

      On June 18, 2015, the day after the federal district court’s order declaring portions

of the MCTA unconstitutional, Daywitt filed a motion in Olmsted County District Court

in which he sought relief from his commitment pursuant to rule 60.02 of the Minnesota

Rules of Civil Procedure. Daywitt argued that, in light of the recently issued order in

Karsjens, his ongoing commitment is unconstitutional.




                                            2
       In August 2015, the district court denied Daywitt’s motion. The district court

reasoned that, because the Karsjens case has not yet reached final judgment, there is “no

change in the current operative facts or law that would justify relief.” The district court

also concluded, in the alternative, that Daywitt could not obtain relief in a motion filed

pursuant to rule 60.02 because the MCTA “provides for the exclusive remedy for persons

in [Daywitt’s] position to seek discharge from commitment.” Daywitt appeals.

                                     DECISION

                                  I. Evidentiary Hearing

       Daywitt first argues that the district court erred by denying his rule 60.02 motion

without an evidentiary hearing.

       Rule 60.02 is a mechanism by which a party may seek relief from a judgment if,

among other reasons, the “judgement is void,” “it is no longer equitable that the judgment

should have prospective application,” or there is “[a]ny other reason justifying relief.”

Minn. R. Civ. P. 60.02(d)-(f). An evidentiary hearing on a rule 60.02 motion “is not a form

of relief in and of itself.” In re Civil Commitment of Moen, 837 N.W.2d 40, 47 (Minn.

App. 2013), review denied (Minn. Oct. 15, 2013). Rather, an evidentiary hearing is

necessary only if there is a factual dispute that the district court must resolve in order to

rule on the motion. See id.; Seifert v. Erickson, 420 N.W.2d 917, 920 (Minn. App. 1988),

review denied (Minn. May 18, 1988). An evidentiary hearing is not required if the district

court can resolve the motion as a matter of law without fact-finding. See Erickson, 420

N.W.2d at 920. This court applies an abuse-of-discretion standard of review to a district

court’s decision to deny a rule 60.02 motion. Moen, 837 N.W.2d at 44-45.


                                             3
       In this case, the district court did not err by not conducting an evidentiary hearing

before ruling on Daywitt’s motion. The district court’s reasons for denying Daywitt’s

motion did not necessarily depend on the resolution of disputed facts. The district court’s

rationale that the Karsjens case is still pending in the federal courts is validated by this

court’s recent opinion concluding that the principle of comity is a valid reason for a state

district court to refrain from addressing the constitutionality of the MCTA or MSOP on a

motion filed pursuant to rule 60.02. See In re Civil Commitment of Hand, ____ N.W.2d

____, ____, 2016 WL 1397100, at *2 (Minn. App. Apr. 11, 2016), pet. for further review

filed (Minn.. May 10, 2016). In addition, the district court’s alternative rationale that

Daywitt’s exclusive remedy is a petition for discharge filed pursuant to the MCTA is

supported by caselaw stating that “the [MCTA] is the ‘exclusive remedy’ for patients

committed as SDPs and SPPs seeking a transfer or discharge.” See In re Civil Commitment

of Lonergan, 811 N.W.2d 635, 642 (Minn. 2012); see also Hand, ____ N.W.2d at ____,

2016 WL 1397100, at *3-4; Moen, 837 N.W.2d at 45.

       Thus, the district court did not err by denying Daywitt’s rule 60.02 motion without

an evidentiary hearing.

                                II. Reply Memorandum

       Daywitt also argues that the district court erred by denying his rule 60.02 motion

without giving him an opportunity to file a reply memorandum of law in support of his

motion.

       A party that files a dispositive motion must serve and file a memorandum of law in

support of the motion. Minn. Gen. R. Prac. 115.03(a)(4). The responding party “shall”


                                             4
serve and file a memorandum of law in opposition to the motion. Minn. Gen. R. Prac.

115.03(b)(1). The moving party then “may” file a reply memorandum of law so long as it

is “limited to new legal or factual matters raised by an opposing party’s response to a

motion.” Minn. Gen. R. Prac. 115.03(c).

       In this case, the county did not raise “new legal or factual matters” in its responsive

memorandum. Accordingly, there was no need for Daywitt to file a reply memorandum

and, correspondingly, no right to do so. Furthermore, given the district court’s reasons for

denying the motion, which we have validated, see supra at 4, Daywitt was not prejudiced

by the promptness of the district court’s ruling. See Lonergan, 811 N.W.2d at 642; Hand,

____ N.W.2d at ____, 2016 WL 1397100, at *2-4; Moen, 837 N.W.2d at 45.

       Thus, the district court did not err by ruling on Daywitt’s motion before the time

allowed for a reply memorandum.1

       Affirmed.




       1
         Daywitt also argues that the district court erred by denying his motion for
temporary injunctive relief pursuant to rule 65 of the rule of civil procedure. But Daywitt
made that argument for the first time in his reply brief. An appellant must make all
arguments for reversal in the appellant’s opening brief, and arguments that are made for
the first time in a reply brief are not properly before the court and may not be considered.
Minn. R. Civ. App. P. 128.02, subd. 4; Wood v. Diamonds Sports Bar & Grill, 654 N.W.2d
704, 707 (Minn. App. 2002), review denied (Minn. Feb. 26, 2003). Thus, we will not
consider Daywitt’s argument concerning the district court’s ruling on his rule 65 motion.

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