This opinion will be unpublished and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. 

U N P U B L I S H E D O P I N I O N

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.
2

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. 
3

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.

D E C I S I O N

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.
4

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” 
5

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.

 

1Daywitt 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.