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Dale Wetzel, Associated Press Writer, Published September 02 2010

Pharmacy measure in hands of North Dakota Supreme Court

BISMARCK – Supporters of a voter initiative that could help bring cheaper prescription drugs to North Dakota are hoping a legal technicality won’t keep them from getting the issue placed on the ballot.

At issue is a state law that requires most pharmacies to have a pharmacist as their majority owner. Those who want it repealed say the change will allow large retailers such as Wal-Mart Stores Inc. and Walgreen Co. to sell cheaper prescription drugs from their own store pharmacies. Opponents fear the measure could drive rural pharmacies out of business.

North Dakota is the only state in the nation with such a law, according to industry officials.

It’s not certain whether the voter initiative will land on the ballot. Petitions in support of the measure were circulated without a list of the proposal’s sponsors, an apparent violation of the requirements in the state constitution.

An attorney representing the supporters asked the state’s Supreme Court on Wednesday to overlook what he called an honest mistake.

“There is no question that the nearly 14,000 people who signed this petition knew what they were signing,” Dan Traynor, a Devils Lake attorney who is representing the initiative’s sponsors, told the Supreme Court.

Attorney General Wayne Stenehjem said the state Constitution makes clear that a valid initiative petition must include a roster of the members of its sponsoring committee.

“In this case, we don’t have substantial compliance” with the requirements, Stenehjem said.

Disagreement over the current law centers in part on finances. Those who oppose it say it prevents large retailers from offering national discount programs on prescription drugs, such as $4 prescriptions on some generics. However, those who support it say the law helps rural pharmacies remain competitive.

One Fargo Walmart has a pharmacy within its building but it’s run by independent pharmacists who aren’t obligated to follow Walmart’s pricing. A Walgreen spokesman said because of the North Dakota law, the chain’s Fargo store is its only one in the nation that’s built to host a pharmacy but doesn’t. The space is used for storage.

The initiative’s supporters hope the Supreme Court rules in their favor by Sept. 8, when Secretary of State Al Jaeger is required to provide county auditors with the final November general election ballot. The justices on Wednesday didn’t indicate when they would make their decision.

Court arguments focused on a single sentence in the North Dakota Constitution: “The secretary of state shall approve the petition for circulation if it is in proper form and contains the names and addresses of the sponsors and the full text of the measure.”

“How is that ambiguous?” Justice Dale Sandstrom asked Traynor.

Traynor said other language in the constitution implied the sponsor list only had to be presented to the secretary of state, rather than attached to the petition itself. North Dakotans who were curious about the initiative’s sponsoring committee could look up the information on Jaeger’s website, Traynor argued.

Justice Mary Muehlen Maring questioned how realistic that expectation was.

“When someone is presented with these petitions, they aren’t going to say, ‘Wait a minute, let me go on my computer and check who’s sponsoring this,’ ” Maring said.


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