F.L. v. Court of Appeals , 2022 UT 32 ( 2022 )

2022 UT 32IN THE
SUPREME COURT OF THE STATE OF UTAH
F.L.,
Petitioner,
v.
COURT OF APPEALS, DAVID M. CHADWICK, and STATE OF UTAH,
Respondents.
No. 20210411
Heard April 11, 2022
Filed July 7, 2022
On Petition for Extraordinary Writ
Fourth District, Provo
The Honorable James R. Taylor
No. 171400984
Attorneys:
Paul Cassell, Heidi Nestel, Crystal C. Powell, Salt Lake City,
for petitioner
Sean D. Reyes, Att‘y Gen., William M. Hains, Asst. Solic. Gen.,
Salt Lake City, for respondent State of Utah
Douglas J. Thompson, Provo, for respondent David Chadwick
CHIEF JUSTICE DURRANT authored the opinion of the Court in which
JUSTICE PEARCE, JUSTICE PETERSEN, JUDGE OLIVER,
and JUDGE GIBSON joined.
Due to his retirement, JUSTICE HIMONAS did not participate
herein; DISTRICT COURT JUDGE AMY OLIVER sat.
Having recused himself, ASSOCIATE CHIEF JUSTICE LEE did not
participate herein; DISTRICT COURT JUDGE DIANNA GIBSON sat.
JUSTICE HAGEN became a member of the Court on May 18, 2022,
after oral argument in this matter, and accordingly did not
participate.
F.L. v. COURT OF APPEALS
Opinion of the Court
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 F.L. is the alleged victim of sex crimes charged against David
M. Chadwick. In the district court proceedings below, Mr. Chadwick
requested that the district court conduct an in camera review of
F.L.‘s therapy and counseling records and release specific categories
of information relevant to his defense. The court granted Mr.
Chadwick‘s request and conducted the review, after which it issued
several orders quoting relevant excerpts from the records. The court
then sealed the records. Mr. Chadwick proceeded to trial and was
convicted of one count of sexual abuse of a child.
¶2 Mr. Chadwick appealed to the court of appeals and
challenged the adequacy of the district court‘s in camera review. On
its own motion, the court of appeals unsealed F.L.‘s records and
classified them as private, which allowed Mr. Chadwick‘s attorney
to make extensive use of those records in his opening brief on
appeal. In response, F.L. asked the court of appeals to reseal her
records and strike all references to the confidential material in Mr.
Chadwick‘s brief. That court granted F.L.‘s request and instructed
Mr. Chadwick to file a revised brief without references to the
records.
¶3 Mr. Chadwick filed the revised brief as instructed, but he
challenged the court of appeals‘ decision to reseal F.L.‘s therapy
records, arguing the sealing order violated his rights. He asked that
the court release those records to his attorney or, in the alternative,
conduct a new in camera review of the records with an ―advocate‘s
eye.‖ F.L. then moved to intervene in Mr. Chadwick‘s appeal as a
limited-purpose party to assert her privacy interests.
¶4 The court of appeals construed F.L.‘s motion to intervene as a
motion to file an amicus brief under Utah Rule of Appellate
Procedure 25, and it allowed her thirty days to file an amicus brief.
F.L. then filed a petition for certiorari review with this court, which
we denied because the court of appeals had not yet issued a final
decision on Mr. Chadwick‘s appeal. We instead invited F.L. to file a
petition for extraordinary relief. She did so, but she also filed a
motion asking us to reconsider the denial of her certiorari petition.
We deferred ruling on this motion for reconsideration and instructed
the parties to brief the issue in conjunction with the briefing on F.L.‘s
petition for extraordinary relief.
¶5 We deny F.L.‘s motion for reconsideration but grant her
petition for extraordinary relief. Under the rules governing appellate
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procedure, we do not have jurisdiction to accept F.L.‘s petition for
certiorari because the court of appeals has not yet issued a final
decision on Mr. Chadwick‘s appeal. We also reject F.L.‘s argument
that we should apply conventional standards of review to her
petition for extraordinary relief. But we grant her request for
extraordinary relief. The court of appeals made a mistake of law and
so abused its discretion in not allowing F.L. to intervene as a limited-
purpose party. Further, she has no other plain, speedy, and adequate
avenue for relief. And because of the significance of the legal issue
and the potential severe consequences of not allowing F.L. to be
heard as a limited-purpose party, we exercise our discretion to grant
relief. We accordingly reverse the court of appeals‘ decision on F.L.‘s
motion to intervene and remand to allow her to participate as a
limited-purpose party to assert her rights in her confidential therapy
records.
Background
¶6 In September 2016, the State charged Mr. Chadwick with four
counts of sexual abuse of a child, a second-degree felony. F.L. is the
alleged victim of these crimes. During the underlying criminal
proceedings, Mr. Chadwick filed a motion asking the district court to
conduct an in camera review of F.L.‘s therapy and counseling
records. Before the court ruled on the motion, the State stipulated
that Mr. Chadwick was entitled to the in camera review under Utah
law, and the parties submitted a stipulated order to that effect. The
district court signed the order, which directed that the therapy
records be released directly to the district court for in camera review.
The order also stated that after the court reviewed the records, it
would ―disclose only those portions that contain a factual
description of alleged abuse by Mr. Chadwick and circumstances
surrounding those events, any report of those events by the
counselor to law enforcement, and any methods used to refresh or
enhance the memory of the alleged victim regarding those events.‖
The order further provided that any information not provided to Mr.
Chadwick would be sealed.
¶7 The district court conducted the in camera review in
accordance with the stipulated order. It then issued several orders
quoting excerpts from the records, but it did not release the records
themselves. The case eventually went to trial, and the jury convicted
Mr. Chadwick on one of the four counts of sexual abuse of a child.
F.L. was not represented by legal counsel during Mr. Chadwick‘s
criminal proceedings.
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F.L. v. COURT OF APPEALS
Opinion of the Court
¶8 Mr. Chadwick appealed his conviction to the court of appeals
and secured an order to transmit the sealed therapy records to that
court. Then, on its own motion, the court of appeals unsealed and
designated the records as private, which gave Mr. Chadwick‘s
counsel access to them. Mr. Chadwick then filed an opening brief
and argued that the district court‘s in camera review was
inadequate. In making his arguments, Mr. Chadwick quoted
extensively from the previously sealed documents.
¶9 The State responded to Mr. Chadwick‘s brief by filing a
motion to reseal F.L.‘s therapy records and strike the portions of Mr.
Chadwick‘s brief citing those records. The court of appeals denied
the State‘s motion.
¶10 F.L. then retained legal counsel and filed a motion similar to
the State‘s, asking the court of appeals to reseal her therapy records
and strike all portions of Mr. Chadwick‘s brief referencing those
records. She also asked the court to publish an opinion on her
motion. The court granted F.L.‘s motion in part, resealing the records
and ordering Mr. Chadwick to file a revised brief omitting all
references to F.L.‘s confidential records. But it denied F.L.‘s request
for a published opinion on the motion.
¶11 As ordered, Mr. Chadwick submitted a revised brief that
redacted all references to F.L.‘s therapy records, but he made two
arguments regarding access to those records. First, he asked the
court of appeals to reconsider its sealing order and designate the
records as private, arguing the order violated his right to appeal, his
right to due process, and his right to fundamental fairness. Second,
and in the alternative, he asked the court to conduct its own in
camera review of the records with an ―advocate‘s eye.‖
¶12 F.L. responded by filing a motion to intervene as a limited-
purpose party to protect the confidentiality of her therapy records,
specifically stating that allowing her to file an amicus brief would
not allow her to sufficiently protect her interests. The State
supported F.L.‘s motion. Mr. Chadwick opposed the motion by
arguing F.L. did not have a right to intervene but could instead file
an amicus brief.
¶13 The court of appeals, rather than denying F.L.‘s motion to
intervene, construed the motion as a request for leave to file an
amicus curiae brief pursuant to rule 25 of the Utah Rules of
Appellate Procedure. It then granted the construed motion and
allowed F.L. thirty days to file an amicus brief.
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¶14 F.L. then filed a petition for certiorari with this court, asking
us to overrule the court of appeals‘ decision on her motion to
intervene. She also asked that we construe her request as a petition
for extraordinary relief in the event we found that we did not have
jurisdiction to accept her petition for certiorari. Relying on State v.
Epling,1 we declined to accept F.L.‘s petition after determining that
―[c]ertiorari review may be sought only from a final decision of the
Court of Appeals.‖ We also declined to construe the petition as a
request for extraordinary relief because F.L. failed to frame the
petition in terms of the criteria specified in rule 19 of the Utah Rules
of Appellate Procedure, but we granted F.L. leave file a separate
petition for extraordinary relief.
¶15 F.L. accepted our invitation to file a separate petition for
extraordinary relief and, in conjunction with that filing, also
submitted a motion asking us to reconsider our refusal to accept her
petition for certiorari. We deferred ruling on the motion for
reconsideration and instead invited the parties to brief the issue. We
have jurisdiction to hear this case under Utah Code section 78A-3-
102(2).
Standard of Review
¶16 F.L. argues that although she has brought a petition for
extraordinary relief, she is entitled to have us hear her petition for
certiorari or, in the alternative, to have us review her extraordinary
writ under the standard of review applicable to a conventional
appeal. For reasons explained further below, we do not accept F.L‘s
certiorari petition, and we decline to deviate from the standard of
review applicable to petitions for extraordinary relief.
¶17 Rule 65B(d) of the Utah Rules of Civil Procedure provides
the standard of review for extraordinary relief when the petitioner
alleges a wrongful use of judicial authority. It states that ―[w]here no
other plain, speedy and adequate remedy is available,‖ ―relief may
be granted . . . where an inferior court . . . has exceeded its
jurisdiction or abused its discretion.‖2 The rule further provides that
when ―the challenged proceedings are judicial in nature, the court‘s
review shall not extend further than to determine whether the
respondent has regularly pursued its authority.‖3 ―A court
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1 2010 UT 53, ¶ 3, 240 P.3d 788.
2 UTAH R. CIV. P. 65B(a), (d)(2)(A).
3 Id. 65B(d)(4).
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F.L. v. COURT OF APPEALS
Opinion of the Court
wrongfully uses its judicial authority when it abuses its discretion,‖4
and ―a mistake of law may constitute an abuse of discretion.‖5
―However, even where a mistake of law or abuse of discretion is
found, this court nonetheless retains discretion whether to grant the
relief requested.‖6
Analysis
¶18 F.L. makes two overarching arguments in her petition for
extraordinary relief, one procedural and one substantive. On the
procedural issue, she argues we should have accepted her petition
for certiorari or, in the alternative, that we should apply the standard
of review for a conventional appeal to her petition for extraordinary
relief. And on the substantive issue, she argues the court of appeals
erred in construing her motion to intervene as a motion for leave to
file an amicus brief and that the error is significant enough to justify
extraordinary relief.
¶19 We disagree with F.L.‘s procedural arguments but agree
that she is entitled to extraordinary relief. F.L. has not convinced us
that she is entitled to be heard through a petition for certiorari rather
than a petition for extraordinary relief, nor has she convinced us that
we should apply the conventional standard of review to her request
for an extraordinary writ. But we conclude that the court of appeals
made a mistake of law and abused its discretion in not allowing F.L.
to intervene as a limited-purpose party to protect the confidentiality
of her mental health records. We accordingly exercise our discretion
to grant relief and instruct the court of appeals to allow F.L. to
intervene in Mr. Chadwick‘s appeal as a limited-purpose party.
I. The Standard of Review for Extraordinary Relief Applies
¶20 After we denied F.L.‘s petition for certiorari, she filed a
motion asking that we reconsider our decision. We deferred ruling
on the motion and instructed the parties to brief the issue. With full
briefing now before us, we hold that we do not have jurisdiction to
hear F.L.‘s petition for certiorari and that the usual standard of
review for extraordinary relief applies. Our caselaw and rules of
appellate procedure make clear that a person may only petition for
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4 Snow, Christensen & Martineau v. Lindberg, 2013 UT 15, ¶ 21, 299
P.3d 1058.
5 State v. Barrett, 2005 UT 88, ¶ 26, 127 P.3d 682.
6 Cox v. Laycock, 2015 UT 20, ¶ 17, 345 P.3d 689.
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certiorari after the court of appeals issues a final decision, and no
such final decision has been issued in Mr. Chadwick‘s appeal. And
though F.L. cites other authority in support of her argument that we
should accept her petition for certiorari, none of that authority
mandates that she be heard through a petition for certiorari rather
than a petition for extraordinary relief. F.L. has also failed to
convince us to apply a conventional standard of review to her
petition for extraordinary relief, as the cases she relies upon deal not
with the standard of review for an extraordinary petition, but with
the kind of standing that is required before a person can obtain
extraordinary relief in the first place.
A. Review Through a Petition for Certiorari Is Not Available
¶21 In initially denying F.L.‘s petition for certiorari, we stated
we could not accept the petition because it challenged ―an
intermediate decision of the Court of Appeals‖ and held that
―[c]ertiorari review may be sought only from a final decision of the
Court of Appeals.‖ This decision is correct under the Utah Rules of
Appellate Procedure and our caselaw, and F.L. has failed to convince
us otherwise.
¶22 Utah Rule of Appellate Procedure 45(a) states that ―the
review of a judgment, an order, and a decree (herein referred to as
‗decisions‘) of the Court of Appeals shall be initiated by filing in the
Utah Supreme Court a petition for a writ of certiorari to the Utah
Court of Appeals.‖ By its terms, this rule does not make any
distinction between intermediate and final decisions. But rule 48 of
the Utah Rules of Appellate procedure, which separately governs the
timing of a petition for certiorari, provides that a petition ―must be
filed with the Supreme Court clerk within 30 days after the Court of
Appeals‘ final decision is issued.‖7 And in State v. Epling, we
determined that the phrase ―final decision‖ foreclosed the possibility
of certiorari review of an intermediate decision of the court of
appeals because any other interpretation ―would have the effect of
rendering the word ‗final‘ superfluous.‖8 Though we determined
that a petition for certiorari was not available to challenge an
intermediate order of the court of appeals, we held that ―we may
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7 UTAH R. APP. P. 48(a) (emphasis added).
8 2010 UT 53, ¶ 3, 240 P.3d 788.
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F.L. v. COURT OF APPEALS
Opinion of the Court
retain the option to address such an intermediate order by petition
for extraordinary writ.‖9
¶23 In this case, because the court of appeals has not issued a
final decision on Mr. Chadwick‘s appeal, its intermediate order on
F.L.‘s motion to intervene is not available for immediate certiorari
review. F.L. challenges this conclusion by arguing that the court of
appeals has, ―for all practical purposes,‖ issued a final decision on
whether she will be a party below. But issuing a decision on the
discrete issue of intervention is not the same as issuing a final
decision on appeal.10 The word ―final‖ is defined as ―not requiring
any further judicial action by the court that rendered judgment to
determine the matter litigated; concluded.‖11 And the phrase ―final
decision‖ is defined as ―[a] court‘s last action that settles the rights of
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9 Id. ¶ 4.
10 F.L. also points to our decision in State v. Lopez to support her
argument that we should accept her certiorari petition. In Lopez, we
stated that ―[o]ur cases have recognized a direct appeal of right from
the entry of at least one form of non-final order—an order denying a
motion to intervene.‖ State v. Lopez, 2020 UT 61, ¶ 26 n.12, 474 P.3d
949 (citing Brigham Young Univ. v. Tremco Consultants, Inc., 2007 UT
17, ¶ 17, 156 P.3d 782; Com. Block Realty Co. v. U.S. Fid. & Guar. Co., 28
P.2d 1081, 1082 (Utah 1934)). F.L. then argues that, because Lopez
(and the cases on which it relied) recognize a right to an immediate
appeal from an order denying intervention, it was ―most unusual‖
for us to not accept her petition for certiorari review.
F.L.‘s reliance on these cases is unavailing. This is so because they
do not discuss the issue in this case: whether there is a right to an
immediate appeal from the court of appeals‘ denial of a motion to
intervene. Instead, our caselaw—as it currently stands—only
recognizes a right to a direct appeal from a district court’s denial of a
motion to intervene. Our caselaw and procedural rules do not
explicitly contemplate avenues for appellate review of the court of
appeals‘ denial of a motion to intervene, and in circumstances where
no other avenues for review are available, a petition for
extraordinary writ is the proper procedural mechanism for obtaining
relief. See UTAH R. CIV. P. 65B(a) (stating that extraordinary relief is
only available when ―no other plain, speedy and adequate remedy‖
exists).
11 Final, BLACK‘S LAW DICTIONARY (11th ed. 2019).
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the parties and disposes of all issues in controversy.‖12 The court of
appeals clearly must take further judicial action on Mr. Chadwick‘s
appeal before the matter is concluded, and its decision on F.L.‘s
motion to intervene cannot be described as a last action settling the
rights of the parties. So we decline to construe the court of appeals‘
intermediate decision on F.L.‘s motion to intervene as a ―final order‖
that may qualify for certiorari review.
¶24 F.L. also argues that her constitutional right to be treated
with ―fairness, respect, and dignity‖ under the Utah Constitution
gives us jurisdiction, independent from the Utah Rules of Appellate
Procedure, to accept her petition for certiorari.13 But she devotes
scant briefing to this argument, stating only that her right to fairness
entitles her to obtain immediate appellate review through a certiorari
petition. This argument, without more, fails to persuade us that
requiring F.L. to file a petition for extraordinary relief, rather than a
petition for certiorari, would be unfair.
¶25 F.L.‘s final argument in support of her position that we
should accept her certiorari petition is that Utah Code sections 78A-
3-102(3) and 77-38-11(2)(b) provide a basis, independent of the Utah
Rules of Appellate Procedure, for us to hear her arguments on
certiorari review. But those statues do not mandate that we accept
F.L.‘s petition for certiorari. Utah Code section 78A-3-102(3) provides
a general list of matters over which we have appellate jurisdiction
but does not mention the procedural mechanism through which we
can exercise that jurisdiction. Those procedural mechanisms are
found in the Utah Rules of Appellate Procedure. And Utah Code
section 77-38-11(2)(b) states that rulings on a crime victim‘s motion
―may be appealed under the rules governing appellate actions,‖ i.e.,
the Utah Rules of Appellate Procedure. So the statutes F.L. cites are
tied to our appellate rules, and as explained above, those rules
mandate that we hear F.L.‘s claims through a petition for
extraordinary relief rather than a petition for certiorari review.
¶26 In sum, because we are reviewing an intermediate decision
of the court of appeals, we do not have jurisdiction to accept F.L.‘s
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12 Final Decision, BLACK‘S LAW DICTIONARY (11th ed. 2019)
(referring to Final Judgment, BLACK‘S LAW DICTIONARY (11th ed.
2019)).
13 See UTAH CONST. art. I, § 28(1)(a).
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F.L. v. COURT OF APPEALS
Opinion of the Court
certiorari petition. And none of F.L.‘s arguments change this
conclusion.
B. Conventional Standards of Review Do Not Apply to Extraordinary
Writs
¶27 F.L. argues that if we decline to accept her petition for
certiorari, we should nevertheless treat her petition for extraordinary
relief as a ―substitute for a conventional appeal‖ and apply a less
deferential standard of review. In making this argument, F.L. relies
on our decision in Society of Professional Journalists, Utah Chapter v.
Bullock,14 which she claims established that when a petitioner seeking
extraordinary relief meets the test for appellate standing, the
standard of review for a conventional appeal applies. F.L.‘s
argument misconstrues our caselaw, and we accordingly reject it.
¶28 In Society of Professional Journalists, a journalist society
petitioned for extraordinary relief after a district court denied public
access to a criminal defendant‘s pretrial competency proceedings.15
The society had appeared and made arguments to the district court
before requesting extraordinary relief.16 Before we addressed the
merits of the petition, we noted the case contained a ―wrinkle‖ in
that the petition was ―not an original proceeding because it [was] not
a controversy that [was] brought before the courts for the first
time.‖17 We stated there was ―nothing illegitimate about one using a
writ to obtain review of a lower court ruling,‖ but we also noted that
using an extraordinary writ to obtain review ―raises a concern that
no party be advantaged insofar as standing is concerned by reason of
having petitioned this Court for a writ rather than having proceeded
by way of an appeal.‖18 To resolve this concern and ensure the
―normal preconditions‖ for obtaining appellate review were
satisfied, we held that a party bringing an extraordinary writ had to
―demonstrate appellate standing‖ to be entitled to petition for
extraordinary relief.‖19
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14 743 P.2d 1166 (Utah 1987).
15 Id. at 1168.
16 Id. at 1169–70.
17 Id. at 1170–71.
18 Id. at 1171.
19 Id. at 1171–72.
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¶29 As this case summary makes clear, Society of Professional
Journalists does not, as F.L. argues, deal with the standard of review
applicable to petitions for extraordinary relief. Instead, it deals with
the kind of standing that is required before a party can obtain
extraordinary relief in the first place. As we noted in a later case,
Society of Professional Journalists addressed two concerns. First, it
addressed the concern that ―the extraordinary writ process [could]
be abused as a tool for circumventing a traditional appeal.‖20 And
second, it addressed the concern that ―a party who did not have
standing to appear in the district court could potentially use an
extraordinary writ to gain appellate-like review of the district court‘s
rulings.‖21 These two concerns have nothing to do with the standard
of review. We accordingly reject F.L.‘s argument and apply the
deferential standard of review applicable to petitions for
extraordinary relief.22
II. The Court of Appeals Abused Its Discretion
¶30 Though we reject F.L.‘s procedural arguments, we
nevertheless agree with her contention that the court of appeals
wrongly denied her request to intervene as a limited-purpose party.
Our caselaw and rules of evidence make clear that F.L. has the right
to proactively assert her privacy interests in her privileged mental
health records. Amicus status does not allow F.L. to adequately
claim her privilege, and the court of appeals made a mistake of law
in concluding otherwise. Because of the importance of the interests at
stake, and in order to provide clarity in this area of the law, we
exercise our discretion to grant F.L.‘s request for extraordinary relief.
¶31 As we noted above, a person petitioning for extraordinary
relief is required to make several showings. The petitioner must
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20 Krejci v. City of Saratoga Springs, 2013 UT 74, ¶ 13, 322 P.3d 662.
21 Id.22 Though we determine that the typical standard of review for
extraordinary relief applies in this case, we are concerned that the
deference inherent in that standard may not sufficiently protect the
rights of those seeking to intervene as limited-purpose parties in an
appeal where access to their privileged information is at stake. We
accordingly refer the issue to our appellate rules committee and
instruct it to consider whether our rules should be amended to give
privilege holders other avenues of appellate review for denials of a
motion to intervene in an appeal.
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demonstrate there is ―no other plain, speedy and adequate remedy‖
available and that relief is authorized by Utah Rule of Civil
Procedure 65B.23 But even if a petitioner makes these showings, ―this
court nonetheless retains discretion whether to grant the relief
requested.‖24
¶32 We hold that F.L. is entitled to extraordinary relief. A
petition for extraordinary relief is the only way for her to obtain a
speedy and adequate remedy, and extraordinary relief is authorized
because the court of appeals made a mistake of law in not allowing
her to intervene for the limited purpose of asserting her privilege in
her confidential therapy records. And because the error went to a
significant legal issue and has potentially severe consequences for
F.L., we exercise our discretion to grant relief.
A. Extraordinary Relief Is the Only Plain, Speedy, and Adequate Remedy
¶33 Due to the nature of the issues and the procedural posture
of this case, F.L. has no other plain, speedy, and adequate remedy
apart from extraordinary relief. We have already concluded that she
is not entitled to certiorari review of the court of appeals‘ order
denying her motion to intervene. And certiorari review after a final
decision on Mr. Chadwick‘s appeal would not provide F.L. with an
adequate remedy. This is so because after the court of appeals issues
a final decision on Mr. Chadwick‘s appeal, F.L. would have already
lost the opportunity to participate as a limited-purpose party. In
addition, if F.L. were required to wait until after a final decision to
appeal the denial of her motion to intervene, her confidential records
may have already been released to Mr. Chadwick without her being
able to assert her privacy interests. As we have previously noted in
the extraordinary writ context, compelling a party ―to turn over
what is alleged to constitute privileged information has the potential
to result in irreparable injury,‖25 and ―appellate courts cannot always
unring the bell once the information has been released.‖26
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23 UTAH R. CIV. P. 65B(a).
24 Cox v. Laycock, 2015 UT 20, ¶ 17, 345 P.3d 689.
25Snow, Christensen & Martineau v. Lindberg, 2013 UT 15, ¶ 25, 299
P.3d 1058.
26 United States v. Sciarra, 851 F.2d 621, 636 (3d Cir. 1988) (internal
quotation marks omitted) (citing Maness v. Meyers, 419 U.S. 449, 460–
61 (1975)).
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¶34 Mr. Chadwick suggests F.L. could have pursued an
interlocutory appeal from the order denying limited-purpose
intervention. But rule 5 of the Utah Rules of Appellate Procedure,
which governs appeals of interlocutory orders, only contemplates
interlocutory appeals of trial court orders, not appellate court
orders.27 An interlocutory appeal is therefore unavailable to F.L., and
as we noted above, review after a final decision could potentially
provide her with no adequate relief. We accordingly determine that
a petition for extraordinary relief is the only avenue for F.L. to obtain
a plain, speedy, and adequate remedy.
B. The Court of Appeals Made a Mistake of Law and Abused Its Discretion
¶35 We also conclude that relief is authorized by rule 65B in
these circumstances. Specifically, relief is authorized under rule
65B(d)(2), which states that relief may be granted ―where an inferior
court . . . abused its discretion.‖ And in the extraordinary relief
context, ―a mistake of law may constitute an abuse of discretion.‖28
We hold that the court of appeals made a mistake of law in not
allowing F.L. to intervene as a limited-purpose party because, under
the reasoning of State v. Brown29 and as provided in Utah Rule of
Evidence 506, she is entitled to limited-party status to claim her
privilege in her therapy records.
¶36 In State v. Brown, a crime victim sought to intervene in a
defendant‘s criminal proceedings to assert a claim of restitution.30
The district court rejected the victim‘s claim, and the victim appealed
to this court.31 We noted that although ―a victim is not entitled to
participate at all stages of the [criminal] proceedings or for all
purposes,‖ ―that does not eliminate the possibility that a victim may
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27 See UTAH R. APP. P. 5 (―The petition must be filed within 21
days after the trial court’s order is entered . . . .‖); (―The petitioner
must serve the petition on the opposing party and notice of the filing
of the petition on the trial court.‖); (―The petition must contain . . . a
demonstration that the issue was preserved in the trial court.) (―The
petitioner must attach a copy of the trial court’s order from which an
appeal is sought . . . .‖) (emphases added).
28 State v. Barrett, 2005 UT 88, ¶ 26, 127 P.3d 682.
29 2014 UT 48, 342 P.3d 239.
30 Id. ¶ 1.
31 Id. ¶¶ 1–2.
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Opinion of the Court
qualify as a limited-purpose party—with standing to assert a claim
for restitution.‖32 We looked to the statutes governing restitution,
which stated that crime victims have a right to ―seek restitution or
reparations.‖33 Determining that the statutory term ―‗seek‘‖
―connotes a proactive right to ‗go in search of,‘ or to ‗try to acquire or
gain,‘‖ we held that ―the anticipated mode of seeking restitution is . . .
by a direct filing by the victim.‖34 Based on our conclusion that the
relevant statutes provided victims a right to proactively seek
restitution, we determined victims ―possess the status of a limited-
purpose party with the right to file a request for restitution‖ in
criminal proceedings.35
¶37 The reasoning of State v. Brown can be distilled into this
general rule: if the law gives crime victims the ability to proactively
assert a right or seek a remedy, then they may enforce those specific
rights as limited-purpose parties in criminal proceedings. So as
applied to this case, the question is whether the law gives F.L. the
right to proactively assert her privacy interests in her privileged
mental health records. We conclude that Utah Rule of Evidence 506
gives her such a right.36
_____________________________________________________________
32 Id. ¶ 16.
33 Id. ¶ 18 (citing UTAH CODE § 77-37-3(1)(e)).
34 Id.
35 Id. ¶ 20.
36 F.L. and Mr. Chadwick spend much of their briefing arguing
over whether F.L. should be allowed to intervene through Utah Rule
of Civil Procedure 24, which F.L. argues should apply to these
criminal proceedings under Utah Rule of Civil Procedure 81(e). The
State argues F.L. does not need to satisfy the requirements of rule 24
to become a limited-purpose party under Brown, an assertion F.L.
ultimately agrees with in her reply brief. Because we are concerned
with the broad consequences of applying rule 24 to allow
intervention in criminal proceedings, we adopt the narrower option
proposed by the State. Rule 24 allows a person to become ―a full-
fledged party to the proceeding in every respect,” In re Adoption of
C.C., 2021 UT 20, ¶ 27, 491 P.3d 859, with the right to ―protect [her]
interests as a fully participating party.‖ Supernova Media, Inc. v. Pia
Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, ¶ 53, 297 P.3d 599.
But we have held that ―[t]he traditional parties to a criminal
(continued . . .)
14
Cite as: 2022 UT 32Opinion of the Court
¶38 Utah Rule of Evidence 506(b) states that a ―patient has a
privilege . . . to refuse to disclose and to prevent any other person
from disclosing information that is communicated in confidence to a
. . . mental health therapist for the purpose of diagnosing or treating
the patient.‖ And subsection (c) of the rule, which is titled ―Who
May Claim the Privilege,‖ provides that ―[t]he privilege may be
claimed by the patient.‖37 Similar to the phrase ―seek restitution‖ in
Brown, the phrase ―claim the privilege‖ connotes a proactive right.
For instance, one dictionary defines the verb ―claim‖ as ―to take as
the rightful owner‖ or ―to assert to be rightfully one‘s own.‖38 And
the legal definition of ―claim‖ includes ―[t]he assertion of an existing
right.‖39 These facets of ―claim‖ are proactive and indicative of a
legal ability to formally assert a claim of privilege in legal
proceedings where that privilege is in jeopardy.
¶39 Because F.L. has a legal right under rule 506 to claim a
privilege in her therapy records, then under the reasoning of Brown,
she also ―possess[es] the status of a limited-purpose party with the
right to‖ assert that privilege and directly oppose Mr. Chadwick‘s
attempts to gain access to her records on appeal.40 In concluding
otherwise, the court of appeals made a mistake of law.
¶40 The fact that the court of appeals allowed F.L. to file an
amicus brief does not change the outcome. ―[I]t is a well-settled rule
that an amicus brief cannot extend or enlarge the issues on appeal,
and that we will only consider[ ] those portions of the amicus brief
that bear on the issues pursued by the parties to th[e] appeal.‖41 In
proceeding are the prosecution and the defense, and . . . a victim is
not entitled to participate at all stages of the proceedings or for all
purposes.‖ Brown, 2014 UT 48, ¶ 16. We therefore choose the
narrower option and resolve this case based on Brown and Utah Rule
of Evidence 506 rather than rule 24.
37 UTAH R. EVID. 506(c) (emphasis added).
38Claim, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/claim (last visited Apr. 2, 2022).
39 Claim, BLACK‘S LAW DICTIONARY (11th ed. 2019).
40 See Brown, 2014 UT 48, ¶ 20.
41Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 25 n.55, 301
P.3d 984 (alterations in original) (citation omitted) (internal
quotation marks omitted).
15
F.L. v. COURT OF APPEALS
Opinion of the Court
addition, ―[r]elief beyond that which is sought by the parties cannot
be requested by amicus curiae,‖ and ―[c]onsistent with this rule,
motion practice by amici curiae is not permitted.‖42 Amicus
participation is insufficient to allow F.L. to ―claim‖ her privilege
under rule 506. With amicus status, F.L. can opine only on the issues
Mr. Chadwick and the State choose to raise on appeal—or, in F.L.‘s
words, amicus status allows her ―merely to kibitz from the sidelines
about what is happening to her records.‖ She also would be unable
to raise potentially significant issues on how her rights under the
Utah Constitution should inform appellate access to her records—
which she intends to do if we grant extraordinary relief. We
accordingly hold that the court of appeals made a mistake of law in
relegating F.L. to amicus status.
C. The Circumstances Justify Extraordinary Relief
¶41 As we noted above, demonstrating a ground for relief under
Utah Rule of Civil Procedure 65B only gets a petitioner ―a foot in the
door‖ in qualifying for extraordinary relief.43 Even when rule 65B
authorizes relief, we still retain ultimate discretion over whether
relief should be granted. In exercising our discretion, ―we may
consider a variety of factors such as the egregiousness of the alleged
error, the significance of the legal issue presented by the petition, the
severity of the consequences occasioned by the alleged error, and
additional factors.‖44
¶42 We choose to exercise our discretion and grant relief for
several reasons. The legal issue presented in this case—whether a
crime victim has limited-party status in a criminal appeal to prevent
disclosure of privileged information—is significant. We also find it
likely that the same issue could present itself in a future case where,
as here, a defendant seeks to challenge a district court‘s in camera
review of a victim‘s confidential therapy records. In addition, our
caselaw recognizes that crime victims have weighty interests in the
privacy of their therapy records.45 And the consequences of leaving
_____________________________________________________________
42 3B C.J.S. Amicus Curiae § 14 (2022).
43 Kamoe v. Ridge, 2021 UT 5, ¶ 10, 483 P.3d 720.
Lindberg, 2013 UT 15, ¶ 22 (citation omitted) (internal quotation
44
marks omitted).
45See State v. Cramer, 2002 UT 9, ¶ 22, 44 P.3d 690 (acknowledging
―a victim‘s privacy interests in privileged mental health records‖);
(continued . . .)
16
Cite as: 2022 UT 32Opinion of the Court
the error uncorrected are also potentially severe. If we chose not to
grant relief and leave the court of appeals‘ decision intact, it could
lead to F.L. being denied meaningful participation on the issue of
whether her confidential records should be reviewed by her alleged
abuser and/or the court of appeals. These potential consequences
would not be adequately corrected on review after a final decision.
We accordingly grant F.L.‘s request for extraordinary relief.
Conclusion
¶43 We hold that we do not have jurisdiction to hear F.L.‘s
petition for certiorari because the court of appeals‘ order on her
motion to intervene is an intermediate, non-final decision. We also
decline to apply conventional standards of review to F.L.‘s petition
for extraordinary relief. But we hold that the court of appeals made a
mistake of law in only allowing F.L. to file an amicus brief on the
issue of appellate access to her confidential therapy records, as
amicus status is insufficient to allow her to assert her rights. Because
of the importance of the legal issue and the potentially severe
consequences to F.L. of not being properly heard regarding access to
her confidential records, we exercise our discretion to grant
extraordinary relief. So we reverse the court of appeals‘ decision on
F.L.‘s motion to intervene and remand for her to participate in Mr.
Chadwick‘s appeal as a limited-purpose party.
State v. Blake, 2002 UT 113, ¶ 19, 63 P.3d 56 (noting that the difficult
test for obtaining in camera review of a crime victim‘s mental health
records ―is deliberate and prudent in light of the sensitivity of these
types of records‖).
17