ND Supreme Court to hear pharmacy question appeal

BISMARCK, N.D. (AP) — North Dakota's Supreme Court will hear arguments next month about whether a voter initiative to eliminate the state's pharmacy ownership restrictions should go on the November ballot.

Attorneys for the ballot measure, which supporters claim will lower North Dakotans’ prescription drug costs, sued Secretary of State Al Jaeger on Friday, a day after he said the initiative wasn't eligible for a statewide vote because the petition didn't include a required list of the proposal's 25 sponsors.

The Supreme Court on Friday scheduled arguments on the dispute for 9 a.m. Sept. 1, said Penny Miller, the court's chief clerk. Attorney General Wayne Stenehjem has until 4 p.m. Aug. 27 to reply to a legal brief submitted by the initiative's lawyers. Stenehjem said Friday he intended to argue the case himself.

The North Dakota Constitution says the high court should resolve arguments over initiative petitions, without requiring that a dispute first go through a state district court.

The measure targets a North Dakota law that requires pharmacists to have majority control of most of the state's pharmacies. Its supporters contend the law bars large retailers, including Walmart, Walgreen's and Target, from extending discount drug prices to customers in North Dakota because they cannot own pharmacies within their own stores.

In their Supreme Court brief, attorneys for the sponsoring committee argued the constitution does not require that a sponsor list be part of an initiative petition. They claim the sponsors’ names and sworn, notarized statements from them only need to be submitted to the secretary of state.

Guidelines issued by Jaeger's office “did not make clear that the sponsor page had to be included with each and every circulated petition,” the brief says. Copies of the petition that people signed included the measure's full text and a brief statement of its purpose.

“There is no doubt the electors knew what they were signing,” the brief says.

Even if Jaeger's interpretation is correct, the pharmacy measure should go on the ballot anyway, because its supporters mostly followed the initiative requirements set out by the constitution and North Dakota law, the committee's attorneys said.

“In this case, the secretary's refusal to place the proposed measure on the ballot based on a technical statutory deficiency, when the sponsors had in good faith complied with all material constitutional and statutory provisions, exalts form over substance and defeats the spirit and intent of ... the North Dakota Constitution,” the filing says.

The brief is signed by Devils Lake attorney Daniel Traynor and two Denver lawyers, Richard Westfall and Ryan Call. During the 2009 Legislature, Traynor lobbied for legislation to repeal the pharmacy ownership restrictions. The bill was defeated in the North Dakota House.

Stenehjem said the constitution was clear about what a petition should include. It reads: “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.”

The sponsor list “is one of the things that citizens are entitled to look at, and consider, when they make a determination of whether they want to sign a petition or not,” Stenehjem said.

North Dakota's initiative process is intended to allow citizens to bypass the Legislature and put proposed laws directly on the statewide ballot. To put a proposed law to a vote, supporters must gather petition signatures from at least 12,844 North Dakota voters within a year. The number represents 2 percent of the state's population, as counted by the 2000 Census.

Tammy Ibach, a spokeswoman for the initiative campaign, said the petitions submitted to the secretary of state were signed by almost 14,000 people and had at least 12,905 valid signatures, which is 61 more than the minimum needed.

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