Group suing Utah over medical marijuana initiative no longer says it would violate Mormon religious beliefs

(Leah Hogsten | Tribune file photo) Cannabis plants are grown in a greenhouse in Colorado by the non-profit Realm of Caring Foundation on October 25, 2014.

On the same day the LDS Church announced it does not oppose the use of medical marijuana — under controlled, physician-administered circumstances — the plaintiffs in a lawsuit challenging a Utah legalization effort pivoted away from assertions that proximity to cannabis use violates Mormon religious beliefs.

The group’s lawsuit now focuses solely on the rights of property owners and landlords. Plaintiffs say landlords would be prohibited under Proposition 2 from denying housing to medical marijuana patients, or from charging extra rental and cleaning fees to repair the property damage caused by routine marijuana use.

“Cannabis in all its forms is a pungent, odorous substance which produces a stench which lingers for months and years in spaces where it is regularly consumed,” states an amended complaint, filed Thursday in Utah’s 3rd District Court.

Last week, the lawsuit was filed seeking to halt the placement of Proposition 2 on the state’s November ballot, saying the initiative is improper due to its violation of state and federal law. If approved, Proposition 2 would legalize medical marijuana for patients who obtain a physician’s recommendation. The Legislature passed, and the governor signed, a bill somewhat legalizing medical marijuana this spring; the state is developing the framework for its implementation.

The original lawsuit also said the legalization of medical marijuana would violate the religious beliefs of Walter J. Plumb, a member of The Church of Jesus Christ of Latter-day Saints and the primary financier of Drug Safe Utah, a coalition opposing Proposition 2.

“This [religious exercise] includes the right not to consort with, be around, or do business with people engaging in activities which their religion finds repugnant,” the lawsuit stated.

On Thursday, Elder Jack N. Gerard, an LDS general authority, participated in a Drug Safe Utah news conference opposing the medical marijuana initiative. In addition to supporting the coalition’s joint statement, Gerard announced that the LDS Church does not object to the medical use of marijuana “if doctor prescribed in dosage form through a licensed pharmacy.”

He also distanced the LDS Church from Plumb and his fellow plaintiffs' legal action against the initiative.

“The church is not part of that lawsuit," Gerard said.

(Trent Nelson | The Salt Lake Tribune) Jack Gerard of the LDS Church, with Lisa Harkness and Craig Christensen, announces the church's opposition to Utah's medical marijuana initiative at a news conference in Salt Lake City, Thursday Aug. 23, 2018.

Plumb did not respond to a request for comment Friday.

The amended complaint draws several parallels between the use of medical marijuana and tobacco. It is common for landlords to prohibit smoking on a rental premises, it states, but the law also allows for applicant tenants to be denied solely on the basis that they use tobacco.

If Proposition 2 is approved by voters, the lawsuit says, medical marijuana users would be elevated above tobacco users under the law.

“The creation of a class of cannabis-using tenants who cannot be denied housing by Utah property owners and who are free to use cannabis on the property of others," the lawsuit states, “does not advance the underlying objective of ensuring that cannabis is available for the treatment of their maladies."

Robert Spjute, a Salt Lake City-based attorney and partner at the firm Shumway Van, said the issue of a tobacco-using tenant’s rights is complicated and without definitive answers in Utah law. Landlords can prohibit smoking on their property, Spjute said, and could likely deny housing to an applicant who smokes.

Less clear is whether a landlord could evict a tenant, Spjute said, for smoking away from the premises or otherwise using tobacco in day-to-day life outside the rental property.

“It depends on what the lease says,” Spjute said. “If the lease said, ‘You can’t smoke anywhere in the world and rent this apartment,’ that would be tough to enforce.”

Spjute had not read the lawsuit and was unable to speak to its specific claims. But he added that the larger debate over medical marijuana raises interesting property- and tenant-rights questions, such as the ability to evict someone for violation of federal law, which classifies cannabis as a controlled substance with no medical use.

“That’s kind of a wacky place,” he said of the potential conflict between state and federal statute. “I don’t know how that would be resolved.”

When asked about the amended lawsuit, DJ Schanz, campaign director for the initiative-supporting Utah Patients Coalition, said Plumb is “the gift that keeps on giving.”

“The man is obsessed,” Schanz said, “and obviously not grounded in reality.”

Photo courtesy of Walter J. Plumb III

A former law partner of Sen. Orrin Hatch, Plumb is a real estate attorney and developer who has been a vocal crusader against what he says are the evils of marijuana.

Schanz said Proposition 2 does not legalize the smoking of marijuana. Patients with the requisite documentation would be able to obtain the cannabis flower, he said, but would need to convert it into other forms, like a vaporizing oil or cooking butter, in order to comply with the law.

He said initiative organizers respect and believe in property rights, but that it is wrong to discriminate against individual tenants on the sole basis that they use medical marijuana.

“We agree that for destructive behavior and for damage to property, the landlord should be able to take appropriate measures,” Schanz said.

Schanz said he’s glad to see the plaintiffs drop the more offensive portions of their lawsuit, particularly the labeling of medical marijuana users as “repugnant.” But he added that he expects the amended complaint to be dismissed as frivolous.

“[Plumb] is doing more harm to the LDS faith than any anti-Mormon,” Schanz said.