Lamplighter Lounge, Inc. v. State Ex Rel. Heitkamp ( 1994 )

VANDE WALLE, Chief Justice,

dissenting.

The law regarding the renewal of alcoholic beverage licenses was unsettled until our decision in Lamplighter v. State ex rel. Heitkamp, 510 N.W.2d 585 (N.D.1994) and, therefore, unsettled at the time of the second administrative hearing. Thus, I do not believe the conduct was without “substantial justification” as specified in section 28-32-21.1(1), NDCC, notwithstanding this Court’s decision in Aggie Investments v. Public Serv. Com’n, 470 N.W.2d 805 (N.D.1991).

Without express legislative direction, I will not conclude that the Legislature intended an award of attorney fees in every instance when an administrative agency implements an ambiguous statute which is subsequently construed by the courts in a manner contrary to the agency’s interpretation.

I therefore dissent.