The district court refused to abstain because it concluded that, under North Dakota law, Alleghany could not raise constitutional claims in state-court review of the administrative procedure. The court based this decision primarily on its analysis of First Bank of Buffalo v. Conrad, 350 N.W.2d 580 (N.D. 1984), in which the North Dakota Supreme Court stated that it preferred that constitutional challenges to administrative actions be asserted in a collateral declaratory judgment action rather than on direct appeal of the administrative action. Id. at 584.

In First Bank of Buffalo v. Conrad, the North Dakota Supreme Court ruled that the Administrative Procedures Act is not designed to resolve constitutional issues. First Bank of Buffalo v. Conrad, 350 N.W.2d 580, 584 (N.D. 1984). The court indicated that where one attacks the constitutionality of the very law which the administrative agency is to administer the proper procedure is to seek declaratory judgment pursuant to section 32-23 et seq. of the North Dakota Century Code and not challenge the constitutionality of the law through the Administrative Procedures Act.

Generally, in the absence of a statute to the contrary, a person who has paid a license fee or tax which is illegal or in excess of the sum which might lawfully be exacted cannot recover the amount paid if the payment was made voluntarily with full knowledge of the facts, although it was made in good faith, through a mistake or in ignorance of the law, unless the recovery is permitted by an agreement entered into at the time the payment was made.First Bank of Buffalo v. Conrad, 350 N.W.2d 580, 586 (N.D.1984). The State cites Wolff v. United States, 372 B.R. 244 (D.Md.2007), for support.

See Flint River Mills v. Henry, 234 Ga. 385, 386, 216 S.E.2d 895, 896-97 (1975); Wronski v. Sun Oil Co., 108 Mich. App. 178, 187, 310 N.W.2d 321, 324 (1981); Jarussi v. Board of Trustees of School Dist. No. 28, 204 Mont. 131, 664 P.2d 316 (1983); First Bank of Buffalo v. Conrad, 350 N.W.2d 580, 584-85 (N.D. 1984); Bare v. Gorton, 84 Wn.2d 380, 383, 526 P.2d 379, 381 (1974); see also 4 K. Davis, Administrative Law Treatise § 26:6 (2d ed. 1983). But cf. Christian Brothers Institute v. Northern New Jersey Interscholastic League, 86 N.J. 409, 416, 432 A.2d 26, 29 (1981) (administrative bodies authorized to rule on constitutional issues where relevant and necessary to resolve question concededly within their jurisdiction).

North Dakota appears to follow the same principle. See First Bank of Buffalo v. Conrad, 350 N.W.2d 580, 586 (N.D. 1984) (citing 72 Am.Jur.2d § 1087). The Court hints, but does not state directly, that a basis for its invocation of stare decisis is a fear that overturning Bellas Hess will lead to the imposition of retroactive liability.

Severance is the preferred remedy under both North Dakota and federal law. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328-29, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) (noting the United States Supreme Court's preference for enjoining only the unconstitutional language while leaving the remainder intact); Tooz v. State, 76 N.D. 599, 38 N.W.2d 285, 291 (1949) (stating severance is preferred and "[i]t would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional"); First Bank of Buffalo v. Conrad, 350 N.W.2d 580, 584 (N.D. 1984) ("The declaration of part of a law as being unconstitutional does not require a court to also declare the remainder void, unless all provisions are so connected and dependent upon each other that it cannot be presumed that the legislature would have enacted the valid sections without the unconstitutional sections."); Kessler v. Thompson, 75 N.W.2d 172, 189 (N.D. 1956) ("It is a fundamental principle that a statute may be constitutional in one part and unconstitutional in another part and that if the valid part is severable from the rest, the portion which is constitutional may stand while that which is unconstitutional is stricken out and rejected."). North Dakota law also contains a general savings clause which reinforces the principle of preferring severance to voiding an entire enactment.

Severance is the preferred remedy under both North Dakota and federal law. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328-29, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) (noting the United States Supreme Court's preference for enjoining only the unconstitutional language while leaving the remainder intact); Tooz v. State, 76 N.D. 599, 38 N.W.2d 285, 291 (1949) (stating severance is preferred and "[i]t would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional"); First Bank of Buffalo v. Conrad, 350 N.W.2d 580, 584 (N.D. 1984) ("The declaration of part of a law as being unconstitutional does not require a court to also declare the remainder void, unless all provisions are so connected and dependent upon each other that it cannot be presumed that the legislature would have enacted the valid sections without the unconstitutional sections."); Kessler v. Thompson, 75 N.W.2d 172, 189 (N.D. 1956) ("It is a fundamental principle that a statute may be constitutional in one part and unconstitutional in another part and that if the valid part is severable from the rest, the portion which is constitutional may stand while that which is unconstitutional is stricken out and rejected."). North Dakota law also contains a general savings clause which reinforces the principle of preferring severance to voiding an entire enactment. N.D. C.C. § 1-02-20 (providing that "[i]n the event that any clause, sentence, paragraph, chapter, or other part of any title, is adjudged by any court of competent or final jurisdiction to be inv

[¶ 18] Under our law for disciplining public employees, we conclude that a public employee cannot be disciplined multiple times for one instance of misconduct. Statutory law does not authorize the Department to discipline an employee multiple times for the same misconduct. An agency only has the authority or power granted to it by the legislature. See First Bank of Buffalo v. Conrad, 350 N.W.2d 580, 584–85 (N.D.1984). Section 54–44.

Consequently, when addressing equal protection challenges to legislation, we have often noted a person to whom a statute constitutionally may be applied cannot challenge the statute on the ground that it might conceivably be applied unconstitutionally to others. First Bank of Buffalo v. Conrad, 350 N.W.2d 580, 584 (N.D. 1984); State v. Morris, 331 N.W.2d 48, 58 (N.D. 1983); State v. Unterseher, 255 N.W.2d 882, 886 (N.D. 1977); State v. Amerada Petroleum Corp., 71 N.W.2d 675, 680 (N.D. 1955); Benson v. Schneider, 68 N.W.2d 665, 670 (N.D. 1955); Asbury Hosp. v. Cass County, 72 N.D. 359, 392, 7 N.W.2d 438, 456 (1943). [¶ 11] All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates that it contravenes the state or federal constitution.

In his recommended order and findings, the ALJ refrained from ruling on the constitutional issues presented and assumed the validity of the statutes, as required by law. Service Oil, Inc. v. State, 479 N.W.2d 815, 826 (N.D. 1992); First Bank of Buffalo v. Conrad, 350 N.W.2d 580, 584 (N.D. 1984); Johnson v. Elkin, 263 N.W.2d 123, 126 (N.D. 1978) (holding an administrative agency has no authority to declare a statute unconstitutional). The Bureau adopted the ALJ's recommended order on July 24, 1997.