concurring.
I concur in the majority opinion. But I write separately to note that I believe the wording of Section 28-32-21.1, NDCC, positively requires that an “administrative agency” must be involved in the judicial proceeding and clearly indicates that it ap*826plies to an administrative or judicial proceeding brought by a person against an administrative agency “for judicial review of a final order or decision, or the legality of a rule adopted pursuant to this chapter.” 1 Chapter 28-32, NDCC, is the chapter governing administrative agencies and the term “administrative agency” is defined therein. Section 28-32-01(1).
The State of North Dakota is not an administrative agency within the meaning of that definition. Furthermore, the action was not brought as a result of any action by an administrative agency; rather the action was instituted as a declaratory judgment action to declare unconstitutional Section 57-43.1-02(3), NDCC. It is not within the province of an administrative agency to declare unconstitutional a statute enacted by the Legislature. Johnson v. Elkin, 263 N.W.2d 123 (N.D.1978).
Section 57-43.1-32, NDCC, provides for the refunds of “erroneously or illegally” taxes imposed by Chapter 57-43.1, NDCC, through the office of management and budget, but refunds are to be paid only from “undistributed funds received from the tax imposed by this chapter.” Significantly, the definition of “administrative agency” contained in Section 28-32-01(1), NDCC, specifically excludes the office of management and budget except with regard to certain functions not pertinent to the refund of the gasoline taxes collected under Chapter 57-43.1. Thus, the office of management and budget was not functioning as an administrative agency within the meaning of Chapter 28-32 when it denied Service Oil’s claim for a refund. C.f. Ardestani v. Immigration and Naturalization Service, — U.S. -, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991).
I believe the purpose of Section 28-32-21.1, NDCC, was to require an administrative agency, as defined in Chapter 28-32, to pay attorney fees when it acted without substantial justification in administering the duties delegated to it by the Legislature. Although the award of attorney fees obviously benefits the adverse party, the Legislature structured the statute so that it also serves to penalize the agency for its wrong action in administering the statutes in that the attorney fees and costs “must be paid from funds available to this administrative agency”. That language, found in subsection 3 of the section, further indicates that the attorney fees are only to be awarded when the action involves “the final order, decision, or rule of [the agency] was reviewed by the court”. Thus, before there can be an award of attorney fees there must be some administrative action under Chapter 28-32.
But, for purposes of discussion only, if I were to conclude that administrative-agency action was not the keystone to the award, it is nevertheless evident that an administrative agency, as opposed to the State itself, must be involved in the action. To conclude otherwise is to construe the statute to authorize the State to pay attorney fees whenever it does not prevail in a judicial proceeding. I do not advocate that a prevailing party, as a matter of equity or justice, is not entitled to those fees, only that a determination to pay those fees is for the Legislature. It is particularly doubtful to me that the Legislature intended that an administrative agency should suffer a reduction in its budget because of an unconstitutional statute enacted by the Legislature merely because the agency is delegated to administer its provisions. If the Legislature intended that result, it must tell me so specifically.
I agree heartily with footnote 11 in the majority opinion which suggests that the Legislature further consider and define the circumstances under which Section 28-32-21.1, NDCC, will apply.
. Subsection 3 of Section 28-32-21.1 should remove any question as to the meaning of the Section when it clearly provides that the attorney fees and costs awarded pursuant to Section 28-32-21.1 "must be paid from funds available to the administrative agency the final order, decision or rule of which was reviewed by the court." (emphasis supplied)