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Associated Press, Published September 07 2010

UPDATED: ND Supreme Court rules against pharmacy measure

BISMARCK (AP) — The North Dakota Supreme Court refused Tuesday to order that a proposal to change the state's pharmacy ownership law be put on the November ballot, but a supporter of the change promised the fight would continue.

The voter initiative sought to abolish North Dakota's requirement that most pharmacies in the state be owned by pharmacists. Industry officials say it is the only law of its kind in the country, and its critics say the law prevents large retailers, such as Walgreen Co. and Wal-Mart Stores Inc., from offering less expensive prescription drugs through pharmacies they own.

Last month, Secretary of State Al Jaeger disqualified the measure from appearing on the November ballot because the circulated petition did not include a required list of the proposal's 25 sponsors. Its backers appealed directly to the North Dakota Supreme Court, which concluded unanimously that Jaeger was right.

"The right to initiate and refer laws is part of the fabric of our liberty as North Dakotans," Justice Dale Sandstrom wrote in the court's opinion on Tuesday. "But the people of North Dakota — through the state constitution — have also specified mandatory requirements for the exercise of this right."

Among those requirements, Sandstrom wrote, was that an initiative petition include the names of its sponsors. The North Dakota Constitution says a voter initiative must be sponsored by at least 25 eligible North Dakota voters, whose names and addresses are listed on the petition itself.

Supporters of the initiative conceded that the petition was circulated without an attached list of sponsors, but claimed the error was minor. They argued that the constitution's language requires that a list of sponsors be submitted to the secretary of state but does not specify that the list be part of the petition itself.

Tammy Ibach, a spokeswoman for the initiative campaign, said in a statement Tuesday that the effort to change the law would continue. The initiative petition was circulated after the North Dakota House voted down legislation last year to abolish the ownership restrictions.

"The opportunity for North Dakotans to have more options in where they purchase their prescription drugs is delayed, but the subject will remain alive and the commitment to having this law changed remains steadfast," Ibach's statement said.

Critics of the proposal contend it will hurt rural pharmacies by chipping away enough of their prescription drug business to put them in danger of going under.

Jaeger said Tuesday he was not surprised by the ruling. His office publishes a guide for activists interested in circulating initiative petitions. It says the list of the measure's sponsors must be at the front of the petition itself.

"At the end, the court held that the instructions and information provided by the secretary of state's office was very clear," Jaeger said. "There shouldn't have been any basis for a misunderstanding."

Attorney General Wayne Stenehjem, who personally argued the case before the Supreme Court last week, said the decision was "not a happy result."

"There's no question that the people who circulated the petition were sincere. There was no hint or question of fraud or bad faith on their part," Stenehjem said. "There was, simply, a failure to abide by the strict requirements of the state Constitution."

The constitutional language that regulates initiatives says the secretary of state must approve a 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."

Last month, the initiative's supporters brought 526 petitions bearing almost 14,000 signatures — the minimum required is 12,844 — to Jaeger's office for approval. Jaeger rejected them when he discovered none of the petitions had a list of the measure's 25 sponsors attached to it.

Copyright 2010 The Associated Press.