dissenting.
[¶ 19] I respectfully dissent.
[¶ 20] The dispositive issue is whether the district court erred in summarily dismissing Delvo’s application for relief. The majority holds dismissal was proper because Delvo was put on her proof by an allegation in the State’s answer claiming:
“The State is entitled to a summary disposition on the issue of Post-Conviction Relief in this case as there are no factual disputes at issue. A trial court may summarily dispose of an application for Post-Conviction Relief if there is no genuine issue of material fact and the party requesting summary disposition is entitled to judgment as a matter of law. N.D.C.C. § 29-32.1-09(1); Vandenberg [sic ] v. State, 2003 ND 71, ¶ 5, 660 *77N.W.2d 568. In a motion for summary disposition, the initial burden is on the moving party to demonstrate that there is no genuine issue of material fact, after which the burden shifts to the non-mov-ant to prove otherwise. Id. A genuine issue of material fact exists if reasonable minds could interpret the undisputed facts to reach different conclusions. Id. In this case, even if all the allegations asserted by the Petitioner are valid, the claims do not rise to the level required for the Court to grant the Petitioner’s application.”
The State’s answer concluded, “Based upon the foregoing, the State respectfully requests that the Court summarily deny the Defendant’s Motion for PosNConviction Relief as the petitioner has raised no genuine issue of material fact upon which the Court could grant her motion.”
[¶ 21] The majority accepts the State’s argument and comments, “Delvo does not dispute she was put on notice the State was putting her to her proof. Delvo also does not argue the State should have requested summary disposition by motion, rather than in its response.” Majority Opinion at ¶ 13. Delvo had no chance to make any argument in the district court because her action was dismissed without notice and without a motion by the State. I agree Delvo did not explicitly argue on appeal that she was not put on notice or that the district court erred by treating the State’s answer as a motion. However, Delvo did argue the district court erred by summarily dismissing her application without allowing the case to proceed to the scheduled trial, where she would have had the opportunity to prove her case. Regardless of how Delvo framed her argument on appeal on this basic issue, we do not, or at least should not, have the luxury of deciding the case while ignoring applicable law. See, e.g., Johnson v. State, 2005 ND 188, ¶ 7, 705 N.W.2d 830 (reversing grant of summary judgment despite appellant’s faulty argument relying on incorrect deadline).
[¶ 22] Here, the legal effect of the majority’s decision is that Delvo was put to her proof by nothing more than allegations in the State’s answer. That conclusion runs counter to N.D.C.C. ch. 29-32.1 and counter to the Rules of Civil Procedure because Delvo’s application was not required to contain evidence proving her claims and because neither law permits nor requires Delvo to respond to an answer with evidence by which she could have provided her proof.
[¶ 23] The record shows Delvo’s action was commenced by filing on June 30, 2009. The application was followed by Delvo’s requests for discovery from the State. The State did not serve or file a timely answer. Nor did the State timely respond to Delvo’s discovery requests. On July 22, 2009, the district court provided notice the case was set for trial on October 23, 2009. On August 5, 2009, the State finally filed its answer, which included the allegations reiterated above that Delvo’s application should be summarily dismissed.
[¶24] Without a motion to summarily dismiss, without notice to Delvo that she had been put to her burden of proof and without any mechanism authorized by our Rules of Civil Procedure or by N.D.C.C. ch. 29-32.1 for Delvo to supply her proof, the district court examined the record then before the court. Based on that examination, on September 21, 2009, the district court filed its “Order on Post Conviction Relief,” summarily dismissing Delvo’s application. Her notice of appeal was filed on October 2, 2009. The record is silent about what happened to the October 23, 2009 trial, but it was likely canceled as moot after Delvo’s 'opportunity to factually support her application was extinguished *78by summary dismissal. Review of the law demonstrates that dismissal was legal error.
[¶ 25] A post-conviction relief action is commenced with filing of the application. N.D.C.C. § 29-32.1-08. An application must contain certain allegations. N.D.C.C. § 29-32.1-04(1) and (2). But “[a]rgument, citations and discussion of authorities are unnecessary.” N.D.C.C. § 29-32.1-04(1). The majority recognizes, and our case law confirms, that evidence in support of an application is not required until the applicant “has been given notice he is being put on his proof.” Majority Opinion at ¶ 12 (quoting Henke v. State, 2009 ND 117, ¶ 11, 767 N.W.2d 881).
[¶ 26] The State is permitted to respond to an application by an answer or by a motion to dismiss. N.D.C.C. § 29-32.1-06. Here, the State chose to answer and included in the answer an allegation that the application should be summarily dismissed. The legislature has specified when an application can be summarily dismissed:
The court may grant a motion by either party for summary disposition if the application, pleadings, any previous proceeding, discovery, or other matters of record show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.
N.D.C.C. § 29-32.1-09(1) (emphasis added).
[¶ 27] The legislature did not specify in N.D.C.C. ch. 29-32.1 what constitutes a “motion” in post-conviction relief proceedings. Nor has this Court identified what is a “motion” for purposes of these proceedings. However, we have consistently held that “ ‘[p]ost-eonviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure.’ Clark v. State, 2008 ND 234, ¶ 11, 758 N.W.2d 900 (quoting Sambursky v. State, 2008 ND 133, ¶ 7, 751 N.W.2d 247).” Majority Opinion at ¶ 10. See also Olson v. State, 2008 ND 113, ¶ 9, 750 N.W.2d 459; Wheeler v. State, 2008 ND 109, ¶ 5, 750 N.W.2d 446; Noorlun v. State, 2007 ND 118, ¶ 10, 736 N.W.2d 477.
[¶ 28] In North Dakota, civil proceedings are controlled by the North Dakota Rules of Civil Procedure. N.D.R.Civ.P. 1 (“These rules govern the procedure in the district courts in all suits of a civil nature.”). The Civil Rules explain what can be considered a “motion”:
“An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefore, and shall set forth the relief or order sought.”
N.D.R.Civ.P. 7(b)(1). See also Black’s Law Dictionary 1036 (8th ed. 2004) (A “motion” is “[a] written or oral application requesting a court to make a specified ruling or order.”).
[¶ 29] Rule 7(b) defining a motion must be contrasted with Rule 7(a) describing an answer as one of the forms of pleadings. N.D.R.Civ.P. 7(a). See also Black’s Law Dictionary at 100 (“Answer” is “[a] defendant’s first pleading that addresses the merits of the case, usu. by denying the plaintiffs allegations. An answer usu. sets forth the defendant’s defenses and counter claims.”) and Black’s Law Dictionary at 1191 (“Pleading” is “[a] formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials, or defenses.”).
[¶ 30] Rule 7(b) on motions also must be compared to Rule 8(b) explaining the role of the answer. Rule 8(b) specifies, “A party shall state in short and plain terms the party’s defenses to each claim asserted and shall admit or deny the averments *79upon which the adverse party relies.” N.D.R.Civ.P. 8(b). Rule 8(b) then must be read with Rule 12(b) providing that certain defenses can be raised by motion instead of in an answer. Rule 12(b) states, “Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, must be asserted in the responsive pleading thereto if one is required, but the following defenses at the option of the pleader may be made by motion.... ” N.D.R.CivJP. 12(b).
[¶ 31] The types of defenses that can be raised by a Rule 12(b) motion rather than in an answer are not relevant to this case. Relevant, however, is that while N.D.C.C. § 29-32.1-09 and the North Dakota Rules of Civil Procedure permit certain defenses to be raised by motion instead of an answer, no law permits a defense to be alleged in an answer and then adjudicated as if a motion had been made. The reason for the distinction is important.
[¶ 32] A motion is required to put the district court and the opposing party on notice. “The paramount purpose of Rule 7(b), N.D.R.Civ.P., as well as the other procedural rules governing pleadings and motions, is to inform a party of the nature of the claims being asserted against him and the relief demanded by his adversary.” Vande Hoven v. Vande Hoven, 399 N.W.2d 855, 859 (N.D.1987). See also In re N.C.C., 2000 ND 129, ¶ 11, 612 N.W.2d 561 (paramount purpose of Rule 7(b) is to give notice of claims brought and relief sought); Shipley v. Shipley, 509 N.W.2d 49, 55 (N.D.1993) (paramount purpose of our procedural rules for motions is to give notice of the claims brought and the relief sought by an opposing party); Gerhardt v. Robinson, 449 N.W.2d 802, 803-04 (N.D.1989) (when adverse parties are not provided with adequate notice of the nature of the claim and the relief sought under Rule 7(b), N.D.R.Civ.P., child support could not be modified at a hearing scheduled only for enforcement).
[¶ 33] Given the choice between a constitutional and an unconstitutional application of law, this Court is constrained to select the constitutionally compatible route. Caldis v. Bd. of County Comm’rs, 279 N.W.2d 665, 669 (N.D.1979) (“[T]his court will construe a legislative enactment as constitutional if at all possible.”). I believe the district court’s sua sponte use of the State’s answer as a de facto motion deprived Delvo of her due process right to notice and opportunity to respond. See McWethy v. McWethy, 366 N.W.2d 796, 798 (N.D.1985) (“Judicial decision on motion of one party, without notice to and opportunity to be heard by the other party, is contrary to fundamental principles of justice and due process, except under exigent or special circumstances with reasonably prompt subsequent notice and opportunity to be heard.”).
[¶ 34] Treating the State’s answer as a motion also ignores the mandate of Civil Rule 5 that “a written motion, except one that may be heard ex parte” “must be served ... on every party.” N.D.R.Civ.P. 5(a)(1)(D). See also McWethy, 366 N.W.2d at 798. Reading these cases, rules and statutes together compel the conclusion that, regardless of the vagueness of Del-vo’s issues on appeal, this Court cannot both honor due process and conclude the State’s answer put Delvo to her proof by allegations buried in the State’s answer.
[¶ 35] Here, the district court ordered summary dismissal, even though the State failed to file and serve the motion required under Civil Rules 5 and 7 and under N.D.C.C. § 29-32.1-09(1). I believe the procedure used in this case denied Delvo *80of her due process right to timely notice that the State’s answer was being treated like a motion. The process used in this case also deprived Delvo of any notice that the State’s answer would be interpreted as putting her to her proof. Without notice she had been put to her proof, and without a motion to act upon with that proof, Delvo justifiably did nothing but wait for the scheduled trial. Therefore, I would reverse summary dismissal of Delvo’s application for post-conviction relief.
[¶ 36] CAROL RONNING KAPSNER, J., concurs.