MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	164	
Docket:	   And-18-50	
Argued:	   October	24,	2018	
Decided:	  December	18,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                              JOHN	DOE	
                                  	
                                 v.	
                                  	
               DEPARTMENT	OF	HEALTH	AND	HUMAN	SERVICES	
	
	
GORMAN,	J.	

      [¶1]	 	 In	 April	 of	 2017,	 the	 Department	 of	 Health	 and	 Human	 Services	

denied	 John	 Doe’s	 request	 for	 a	 review	 of	 the	 Department’s	 2003	

substantiation	 of	 him	 for	 sexual	 abuse	 of	 a	 minor.	 	 Doe	 now	 appeals	 from	 a	

judgment	 entered	 by	 the	 Superior	 Court	 (Androscoggin	 County,	

MG	Kennedy,	J.)	that	affirmed	the	Department’s	decision	to	deny	Doe’s	request.		

Doe	 challenges	 the	 Department’s	 denial	 as,	 inter	 alia,	 a	 violation	 of	 his	

procedural	due	process	rights.		Given	the	unique	timing	of	the	substantiation	

at	 issue	 here,	 we	 vacate	 the	 judgment	 of	 the	 Superior	 Court	 and	 remand	 for	

further	proceedings.	
2	

                                        I.		BACKGROUND	

         [¶2]		The	parties	do	not	dispute	the	following	facts.	

         [¶3]	 	 On	 October	 1,	 2003,	 the	 Department	 mailed	 a	 letter	 to	 Doe	

informing	 him	 that	 he	 had	 been	 substantiated	 for	 sexual	 abuse	 of	 a	 minor.1		

The	letter	explained	the	basis	for	the	Department’s	substantiation	finding	and	

stated	 that	 Doe	 had	 the	 right	 “to	 request	 a	 review	 of	 the	 assessment	

record	.	.	.	in	writing	within	thirty	[]	calendar	days.”		Doe	acknowledges	that	he	

did	 not	 write	 the	 Department	 within	 thirty	 days	 after	 October	 1,	 2003,	 to	

request	a	review	of	his	substantiation.			

         [¶4]	 	 When	 the	 Department	 substantiated	 Doe	 in	 October	 of	 2003,	 a	

“paper	 review”—established	 by	 a	 2000	 Department	 policy	 (the	 2000	

policy)—was	 the	 only	 appeal	 process	 available	 to	 an	 individual	 wishing	 to	

challenge	 a	 substantiation	 finding;	 there	 was	 no	 opportunity	 for	 any	 sort	 of	

hearing.	 	 See	 Me.	 Dep’t	 Health	 &	 Human	 Servs.,	 Review	 of	 Substantiation	

Decisions	 of	 Child	 Abuse	 and	 Neglect,	 Child	 &	 Fam.	 Servs.	 Manual	 (2000)	

[hereinafter	2000	Policy].		The	2000	policy	purportedly	applied	to	“all	official	

findings	 of	 child	 abuse	 or	 neglect	 [that	 were]	 substantiated	 on	 or	 after	


     1		The	 Department	used	the	term	“indicated”	in	its	2003	letter,	but	both	parties	agree	that	the	

use	 of	 that	 term	 in	 2003	 is	 synonymous—for	 the	 purposes	 of	 an	 appeal—with	 the	 present-day	
meaning	of	“substantiated.”			
                                                                                                           3	

February	 1,	 2000,”	 and	 it	 set	 forth	 the	 process	 by	 which	 the	 Department	

attempted	to	comply	with	the	Federal	Child	Abuse	Prevention	and	Treatment	

Act	 (CAPTA).2	 	 Id.	 	 As	 the	 Department	 conceded	 at	 oral	 argument,	 it	 did	 not	

adopt	 the	 2000	 policy	 pursuant	 to	 the	 Maine	 Administrative	 Procedure	 Act	

(APA).		5	M.R.S.	§§	8001-11008	(2017);	22	M.R.S.	§	42(1)	(2017).			

        [¶5]	 	 In	 November	 of	 2003—a	 month	 after	 Doe	 received	 his	

substantiation	         letter—the	        Department	          adopted	        formal	       rules	     for	

substantiation	 appeals	 (the	 2003	 rules)	 pursuant	 to	 the	 APA’s	 emergency	

rulemaking	 provision.3	 	 See	 5	 M.R.S.	 §	 8054	 (2017);	 22	 M.R.S.	 §	 42(1);	

18	C.M.R.	10	148	201	§	XI	(effective	Nov.	1,	2003).		The	2003	rules	created	the	

opportunity	 for	 a	 person	 whose	 substantiation	 was	 upheld	 after	 a	 paper	

review	 to	 request	 an	 administrative	 hearing	 in	 order	 to	 challenge	 the	

Department’s	 substantiation	 finding.4	 	 18	 C.M.R.	 10	 148	 201	 §§	IV(E),	 V(B)	


   2		Originally	enacted	in	1974,	CAPTA	is	the	flagship	piece	of	federal	legislation	addressing	child	

abuse	and	neglect.		See	generally	Child	Abuse	Prevention	and	Treatment	Act,	Pub.	L.	No.	93-247,	88	
Stat.	4	(codified	as	amended	primarily	in	scattered	sections	of	42	U.S.C.A.).		The	Act	requires	that	a	
state	provide	substantiated	individuals	the	opportunity	to	appeal	their	substantiations.		Me.	Dep’t	
Health	&	Human	Servs.,	Review	of	Substantiation	Decisions	of	Child	Abuse	and	Neglect,	Child	&	Fam.	
Servs.	Manual	(2000).			
   3		In	2004,	the	Department	promulgated,	unchanged,	the	2003	rules	pursuant	to	standard	APA	

rulemaking	 procedures.	 	 See	 5	 M.R.S.	 §§	 8052,	 8053,	 8056	 (2017);	 22	 M.R.S.	 §	 42(1);	 18	 C.M.R.	
10	148	201	§§	I-XI	(effective	Feb.	3,	2004).			
   4		These	changes	to	the	Department’s	rules	were	spurred	by	the	threat	of	litigation	in	the	early	

2000s	 from	 several	 advocacy	 groups	 that	were	 concerned	 that	the	 Department	 was	infringing	 on	
individuals’	 due	 process	 rights.	 	 See	 Me.	 Dep’t	 Health	 &	 Human	 Servs.,	 Emergency	 Rules	 for	 the	
Appeal	Procedures	for	Individuals	Substantiated	as	Perpetrators	of	Abuse	or	Neglect	of	Children,	Basis	
4	

(effective	 Nov.	 1,	 2003).	 	 Despite	 the	 promulgation	 of	 the	 formal	 rules	 in	

November	of	2003,	the	Department’s	2000	policy	was	still	in	effect	when	Doe	

received	his	substantiation	letter	and	thus	it	is	that	policy—and	not	the	2003	

rules—that	apply	here.		See	18	C.M.R.	10	148	201	§	XI	(effective	Nov.	1,	2003).			

         [¶6]		One	day	after	the	Department	mailed	Doe	his	substantiation	letter,	

a	Sagadahoc	County	grand	jury	handed	down	an	indictment	charging	him	with	

eight	 counts	 of	 gross	 sexual	 assault	 (Class	 A),5	 and	 eight	 counts	 of	 unlawful	

sexual	 contact	 (Class	 C).6	 	 In	 January	 of	 2004,	 a	 jury	 convicted	 Doe	 on	 all	

sixteen	 counts;	 we	 upheld	 the	 conviction	 but,	 after	 Doe’s	 successful	

post-conviction	 review	 and	 a	 subsequent	 retrial	 in	 2009,	 a	 second	 jury	

acquitted	Doe	of	all	counts.			




Statement	 (2003)	 (“Several	 legal	 advocacy	 groups	 have	 threatened	 to	 sue	 the	 Department	 for	 its	
failure	to	provide	hearings	for	persons	who	have	been	substantiated	for	abuse	or	neglect.	.	.	.		The	
attached	 rules	 reflect	 an	 agreement	 between	 the	 Department	 and	 the	 groups,	 thus	 avoiding	 a	
lawsuit.”).			
     5		Of	those	eight,	six	counts	were	based	on	17-A	M.R.S.A.	§	253(1)(B)	(Supp.	2000),	and	two	were	

based	on	17-A	M.R.S.A.	§	253(1)(B)	(Supp.	2002).		Although	there	have	been	several	amendments	
to	17-A	M.R.S.A.	§	253	since	Doe’s	indictment,	the	amendments	do	not	affect	this	matter.		See,	e.g.,	
P.L.	2017,	ch.	300,	§§	1-3	(effective	Nov.	1,	2017)	(codified	at	17-A	M.R.S.	§	253(1)(B)	(2017)).	
   6		Of	those	eight,	six	counts	were	based	on	17-A	M.R.S.A.	§	255(1)(C)	(Supp.	2000),	and	two	were	

based	 on	17-A	 M.R.S.A.	 §	255-A(1)(E)	(Supp.	 2002).	 	 Although	 17-A	M.R.S.A.	 §255(1)(C)	 has	 been	
repealed	and	replaced,	see	P.L.	2001,	ch.	383,	§§	 22-23	(effective	Jan.	31,	2003),	and	17-A	M.R.S.A.	
§	255-A(1)(E)	 has	 been	 amended	several	 times,	see,	 e.g.,	 P.L.	 2015,	 ch.	 509,	 §	 2	 (effective	 July	 29,	
2016)	(codified	at	17-A	M.R.S.	§	255-A(1)(E)	(2017)),	these	changes	do	not	affect	this	matter.	
                                                                                                    5	

        [¶7]		In	2008,	while	Doe’s	criminal	case	was	unfolding,	the	Department	

promulgated	 yet	 another	 version	 of	 the	 substantiation-appeal	 rules.7	 	 See	 18	

C.M.R.	 10	 148	 201	 §§	 I-XIV	 (effective	 Oct.	 1,	 2008).	 	 The	 2008	 rules	 created	

procedures	 by	 which	 an	 individual	 could	 retroactively	 request	 an	

administrative	 hearing	 to	 review	 his	 substantiation,	 but	 only	 if	 (1)	 he	 had	

been	substantiated	before	November	of	2003	and	(2)	he	had	timely	requested	

a	paper	review.		See	18	C.M.R.	10	148	201	§	XIV	(effective	Oct.	1,	2008).		There	

is	 no	 indication	 in	 the	 record	 that	 the	 Department	 notified	 any	 of	 the	

individuals	 substantiated	 before	 November	 of	 2003	 of	 the	 opportunity	 for	 a	

hearing.	

        [¶8]		In	January	of	2017,	the	Department	notified	Doe	that,	based	on	his	

2003	 substantiation,	 his	 presence	 in	 a	 home	 where	 children	 were	 residing	

could	 lead	 to	 the	 removal	 of	 those	 children.	 	 On	 February	23,	2017,	 Doe	

requested	a	hearing	to	review	his	2003	substantiation,	and	on	April	21,	2017,	

the	Department	denied,	as	untimely,	Doe’s	request:	

        Mr.	[Doe]’s	request	has	been	denied	due	to	his	failure	to	request	a	
        review	in	a	timely	manner	following	his	receipt	of	his	notice	that	
        the	 Department	 had	 made	 a	 finding	 against	 him.	 	 It	 is	 clearly	
        stated	 in	 Mr.	 [Doe]’s	 letter	 that	 if	 he	 wished	 to	 request	 a	 review,	
        he	needed	to	make	that	request	in	writing	within	thirty	calendar	

   7	
    	 In	 2008,	 the	 Department	 again	 complied	 with	 standard	 APA	 rulemaking	 procedures.	 	 See	
5	M.R.S.	§§	8052,	8053,	8056;	22	M.R.S.	§	42(1).			
6	

      days	of	the	date	 he	received	the	 notice.	 	Mr.	 [Doe]	signed	for	the	
      notice	on	October	4,	2003.	
      	
      [¶9]	 	 Doe	 asked	 the	 Department	 to	 reconsider	 its	 denial.	 	 The	

Department	 refused,	 prompting	 Doe	 to	 petition	 the	 Superior	 Court	

(Androscoggin	 County)	 for	 a	 review	 of	 the	 Department’s	 denial	 pursuant	 to	

Rule	80C	of	the	Maine	Rules	of	Civil	Procedure.		See	M.R.	Civ.	P.	80C;	5	M.R.S.	

§	11002	(2017).		The	Superior	Court	affirmed	the	Department’s	decision.		Doe	

timely	appealed.		See	5	M.R.S.	§	11008(1)	(2017);	14	M.R.S.	1851	(2017);	M.R.	

App.	P.	2B(c)(1).			

                                   II.		DISCUSSION	

      [¶10]	 	 Doe	 challenges	 the	 Department’s	 denial	 of	 his	 request	 for	 a	

hearing	 to	 review	 his	 2003	 substantiation.	 	 Specifically,	 Doe	 asserts	 that	 the	

Department’s	 2000	 policy	 is	 judicially	 unenforceable	 and	 that	 the	

Department’s	refusal	to	review	his	substantiation	violated	his	procedural	and	

substantive	due	process	rights,	as	well	as	his	equal	protection	rights.			

      [¶11]	 	 Generally,	 “[w]hen	 the	 Superior	 Court	 acts	 in	 an	 intermediate	

appellate	capacity	pursuant	to	M.R.	Civ.	P.	80C,	we	review	the	administrative	

agency’s	decision	directly	for	errors	of	law,	abuse	of	discretion,	or	findings	not	

supported	 by	 substantial	 evidence	 in	 the	 record.”	 	 Manirakiza	 v.	 Dep’t	 of	

Health	 &	 Human	 Servs.,	 2018	 ME	 10,	 ¶	 7,	 177	 A.3d	 1264	 (quotation	 marks	
                                                                                        7	

omitted).		Questions	of	law	are	subject	to	de	novo	review.		York	Hosp.	v.	Dep’t	

of	Health	&	Human	Servs.,	2008	ME	165,	¶	32,	959	A.2d	67.		The	party	seeking	

to	 overturn	 the	 agency’s	 decision	 bears	 the	 burden	 of	 persuasion	 on	 appeal.		

Somerset	Cty.	v.	Dep’t	of	Corr.,	2016	ME	33,	¶	14,	133	A.3d	1006.			

A.	   The	Department’s	2000	Policy		

      [¶12]	 	 Doe	 first	 argues	 that	 the	 Department’s	 2000	 policy	 is	 not	

judicially	 enforceable	 because	 it	 was	 not	 promulgated	 according	 to	 the	 APA,	

and	therefore	Doe’s	failure	to	request	a	paper	review	in	2003	cannot	be	used	

by	 the	 Department	 to	 bar	 his	 2017	 request	 for	 a	 review.	 	 The	 APA	 provides	

that	 an	 agency	 rule	 “is	 not	 judicially	 enforceable	 unless	 it	 is	 adopted	 in	 a	

manner	 consistent	 with	 [the	 APA].”	 	 5	 M.R.S.	 §	 8002(9)	 (2017).	 	 There	 are	

certain	procedures	that	an	agency	must	follow	when	promulgating	rules,	such	

as,	inter	alia,	providing	public	notice	and	submitting	the	proposed	rules	to	the	

Attorney	General	for	 approval.		See	5	M.R.S.	§§	8052,	 8053,	8056.		 There	 are	

also	 APA	 requirements	 for	 emergency	 rulemaking.	 	 See	 5	 M.R.S.	 §	 8054.		

“Rules	adopted	in	a	manner	other	than	that	prescribed	by	[the	APA]	are	void	

and	of	no	legal	effect	.	.	.	.”		5	M.R.S.	§	8057(1)	(2017).	

      [¶13]	 	 The	 Department’s	 letter	 notifying	 Doe	 that	 he	 had	 been	

substantiated	 stated	 that	 Doe	 had	 “thirty	 calendar	 days”	 to	 appeal	 the	
8	

substantiation	 finding,	 but	 no	 such	 thirty-day	 appeal	 period	 is	 found	 in	 the	

Department’s	 2000	 policy—the	 2000	 policy	 referenced	 an	 appeal	 period	 of	

only	ten	days.		See	2000	Policy	(explaining	that	the	Department	must	include	

the	following	statement	in	all	letters	to	substantiated	individuals:	“[y]ou	must	

request	 this	 review	 in	 writing	 with	 [sic]	 TEN	 days	 of	 receiving	 this	 notice”).		

Even	if	the	letter	had	correctly	quoted	the	appeal	period	in	the	2000	policy—

ten	 days—that	 appeal	 period	 would	 be	 unenforceable	 because	 the	 2000	

policy	 was	 not	 promulgated	 pursuant	 to	 the	 APA.	 	 See	 5	 M.R.S.	 §	 8057(1);	

22	M.R.S.	 §	 42(1).	 	 The	 thirty-day	 appeal	 period	 mentioned	 in	 the	 letter	 is	

unenforceable	 because	 the	 2003	 rules	 had	 not	 yet	 gone	 into	 effect.	 	 See	 18	

C.M.R.	10	148	201	§	XI	(effective	Nov.	1,	2003).		Because	there	is	no	judicially	

enforceable	 appeal	 period	 that	 relates	 to	 Doe’s	 2003	 substantiation,	 Doe’s	

failure	to	request	a	paper	review	in	2003	cannot	act	as	a	bar	to	his	request	for	

a	 review	 in	 2017.	 	 The	 Department’s	 refusal	 to	 review	 Doe’s	 2003	

substantiation	 because	 he	 failed	 to	 “request	 a	 review	 in	 a	 timely	 manner”	 is	

thus	misguided.		See	5	M.R.S.	§	8057(1).	

B.	   Procedural	Due	Process	

      [¶14]		Doe	also	argues	that	the	Department’s	refusal	to	review	his	2003	

substantiation	 violates	 his	 procedural	 due	 process	 rights	 pursuant	 to	 the	
                                                                                           9	

United	 States	 and	 Maine	 Constitutions.	 	 See	 U.S.	 Const.	 amend.	 XIV,	 §	 1;	 Me.	

Const.	 art.	 I,	 §	 6-A.	 	 Specifically,	 Doe	 asserts	 that	 he	 was	 never	 provided	 an	

opportunity	 for	 a	 hearing	 before	 an	 impartial	 factfinder	 and	 that	 the	

Department’s	 2003	 letter	 did	 not	 provide	 him	 with	 notice	 of	 the	 collateral	

consequences	of	his	substantiation.			

       [¶15]		“No	person	shall	be	deprived	of	life,	liberty	or	property	 without	

due	process	of	law.”		Me.	Const.	art.	I,	§	6-A;	see	also	U.S.	Const.	amend.	XIV,	§	1	

(“[N]or	shall	any	State	deprive	any	person	of	life,	liberty,	or	property,	without	

due	process	of	law.”).		In	general,	the	fundamental	requirement	of	due	process	

is	 that	 a	 party	 must	 be	 given	 notice	 and	 an	 opportunity	 to	 be	 heard.		

Kirkpatrick	 v.	 City	 of	 Bangor,	 1999	 ME	 73,	 ¶	 15,	 728	 A.2d	 1268;	 Martin	 v.	

Unemployment	 Ins.	 Comm’n,	 1998	 ME	 271,	 ¶	 15,	 723	 A.2d	 412.	 	 “The	 notice	

and	opportunity	for	a	hearing	must	be	granted	at	a	meaningful	time	and	in	a	

meaningful	 manner.”	 	 Kirkpatrick,	 1999	 ME	 73,	 ¶	 15,	 728	 A.2d	 1268	

(quotation	marks	omitted).	

       [¶16]	 	 Following	 precedent	 from	 the	 United	 States	 Supreme	 Court,	 we	

examine	 questions	 of	 procedural	 due	 process	 in	 two	 steps.	 	 See	 Ky.	 Dep’t	 of	

Corr.	 v.	 Thompson,	 490	 U.S.	 454,	 460	 (1989);	 Sparks	 v.	 Sparks,	 2013	 ME	 41,	

¶	28,	 65	 A.3d	 1223.	 	 “[W]e	 must	 first	 determine	 whether	 the	 governmental	
10	

action	 has	 resulted	 in	 a	 deprivation	 of	 life,	 liberty,	 or	 property.	 	 If	 a	

deprivation	has	occurred,	we	are	next	required	to	determine	what	process	is	

due	 the	 individual	 under	 the	 Fourteenth	 Amendment.”	 	 Sparks,	 2013	 ME	 41,	

¶	28,	 65	 A.3d	 1223	 (quotation	 marks	 omitted)	 (citations	 omitted);	 see	 also	

Thompson,	490	U.S.	at	460.	

       [¶17]	 	 The	 Supreme	 Court	 has	 developed,	 and	 we	 have	 embraced,	 a	

balancing	 test	 that	 augments	 the	 second	 step	 of	 the	 due	 process	 analysis.		

Mathews	 v.	 Eldridge,	 424	 U.S.	 319,	 334-35	 (1976);	 Balian	 v.	 Bd.	 of	 Licensure	

in	Med.,	 1999	 ME	 8,	 ¶	 10,	 722	 A.2d	 364.	 	 That	 test	 requires	 us	 to	 consider	

three	 distinct	 factors	 to	 determine	 “whether	 the	 administrative	 procedures	

provided	 []	 are	 constitutionally	 sufficient”	 to	 protect	 an	 individual’s	 due	

process	rights:		

       First,	 the	 private	 interest	 that	 will	 be	 affected	 by	 the	 official	
       action;	 second,	 the	 risk	 of	 an	 erroneous	 deprivation	 of	 such	
       interest	 through	 the	 procedures	 used,	 and	 the	 probable	 value,	 if	
       any,	of	additional	or	substitute	procedural	safeguards;	and	finally,	
       the	Government’s	interest,	including	the	function	involved	and	the	
       fiscal	and	administrative	burdens	that	the	additional	or	substitute	
       procedural	requirement	would	entail.	
	
Mathews,	424	U.S.	at	334-35;	see	also	Balian,	1999	ME	8,	¶	10,	722	A.2d	364.	

       [¶18]		Here,	under	the	first	step	of	the	procedural	due	process	analysis,	

Doe’s	 liberty	 interest	 is	 at	 stake.	 	 As	 we	 held	 in	 Kane	 v.	 Commissioner	 of	 the	
                                                                                                             11	

Department	of	Health	&	Human	Services,	“serious	consequences	[]	flow	from	a	

substantiation	 finding.	.	.	.	 	 The	 stigma	 of	 being	 listed	 as	 ‘substantiated’	 for	

child	abuse	combined	with	the	adverse	professional	and	social	consequences	

of	 being	 listed	 in	 the	 database	 implicates	 a	 fundamental	 liberty	 interest.”		

2008	ME	185,	¶¶	22-23,	960	A.2d	1196.			

        [¶19]		Next,	we	must	determine	whether	the	administrative	procedures	

available	 to	 Doe	 adequately	 protect	 his	 due	 process	 rights.	 	 See	 Sparks,	

2013	ME	 41,	 ¶	 28,	 65	 A.3d	 1223.	 	 The	 Department’s	 2003	 letter	 to	 Doe	 did	

several	 things:	 (1)	 it	 informed	 him	 that	 he	 had	 been	 substantiated;	 (2)	 it	

explained	why	he	had	been	substantiated—i.e.,	what	evidence	the	Department		

reviewed	in	making	its	substantiation	determination;	(3)	it	stated	that	he	had	

the	right	to	request	a	review	of	the	substantiation	determination;	(4)	it	stated	

that	he	had	thirty	calendar	days	to	request	such	a	review;	and	(5)	it	informed	

him	how	to	request	a	review.		The	letter,	however,	lacked	two	crucial	pieces	of	

information.	 	 First,	 it	 failed	 to	 provide	 Doe	 with	 any	 notice	 of	 the	

consequences	of	a	substantiation	finding.8		Second,	the	letter—which	reflected	

the	 Department’s	 then-existing	 policy—did	 not	 permit	 the	 opportunity	 for	 a	

   8		 The	 Department’s	 formal	 rules	 mandate	 that	 a	 substantiation	 letter	 contain	 notice	 of	 the	
collateral	 consequences	 of	 a	 substantiation	 finding.	 	 See	 18	 C.M.R.	 10	 148	 201	 §	 IV(B)	 (effective	
Nov.	1,	 2003);	 18	 C.M.R.	 10	 148	 201	 §	 VII(B)	 (effective	 Oct.	 1,	 2008);	 18	 C.M.R.	 10	 148	 201-5	
§	VII(B)	(2017).			
12	

hearing	 if	 the	 Department	 upheld	 its	 substantiation	 finding	 after	 a	 paper	

review.			

      [¶20]		Reviewing	the	Department’s	process	as	it	applies	to	Doe	pursuant	

to	 the	 three	 Mathews	 factors,	 it	 is	 clear	 that	 the	 Department	 did	 not	 have	

adequate	 predeprivation	 procedures	 with	 regard	 to	 Doe.	 	 See	 Mathews,	

424	U.S.	at	335;	Balian,	1999	ME	8,	¶	10,	722	A.2d	364.		First,	the	stigma	and	

the	 adverse	 professional	 and	 social	 consequences	 of	 being	 listed	 in	 the	

database	 implicate	 a	 fundamental	 liberty	 interest.	 	 See	 Kane,	 2008	 ME	 185,	

¶	23,	960	A.2d	1196.		

      [¶21]	 	 Second,	 under	 the	 2000	 policy,	 individuals	 substantiated	 by	 the	

Department	 were	 at	 a	 high	 risk	 of	 an	 erroneous	 deprivation	 of	 their	 liberty	

interests.	 	 See	 Mathews,	 424	 U.S.	 at	 335;	 Balian,	 1999	 ME	 8,	 ¶	 10,	

722	A.2d	364.		 The	 nature	of	this	risk	is	demonstrated	by	the	effect	hearings	

had	 on	 substantiation	 decisions.	 	 Within	 the	 first	 two	 years	 after	 the	

Department	implemented	a	hearing	procedure	for	substantiation	appeals,	the	

Department	reported	that	over	half	of	the	substantiation	decisions	that	were	

appealed	 by	 a	 hearing	 were	 overturned.	 	 See	 Littlefield	 v.	 Walsh,	

CUMSC-CV-03-056	(Me.	Super.	Ct.,	Cum.	Cty.,	Feb.	4,	2005)	(“DHS,	by	its	own	

admission,	 points	 up	 a	 substantial	 risk	 of	 erroneous	 deprivation	 when	 it	
                                                                                    13	

concedes	 that	 over	 half	 of	 the	 substantiation	 decisions	 appealed	 under	 the	

new	procedures	are	overturned.”).		The	fact	that	so	many	hearings	resulted	in	

reversals	suggests	that	there	was	not	only	probable	value,	but	actual	value,	in	

adding	 procedural	 safeguards—such	 as	 hearings—to	 the	 appeal	 process.		

See	Mathews,	424	U.S.	at	335;	Balian,	1999	ME	8,	¶	10,	722	A.2d	364.		Further,	

and	 most	 importantly,	 a	 hearing	 is	 a	 fundamental	 pillar	 of	 due	 process.		

See	Kirkpatrick,	1999	ME	73,	¶	15,	728	A.2d	1268.			

      [¶22]	 	 Finally,	 under	 the	 third	 Mathews	 factor,	 the	 State	 has	 a	

substantial	 interest	 in	 maintaining	 an	 accurate	 list	 of	 perpetrators	 of	 child	

abuse;	the	“cost”	associated	with	ensuring	the	accuracy	of	that	list	is	relatively	

small.		See	Mathews,	424	U.S.	 at	335;	Balian,	1999	ME	8,	¶	 10,	722	A.2d	364.		

Because	 the	 Department	 already	 has	 in	 place	 procedures	 to	 conduct	 an	

administrative	appellate	review,	see	18	C.M.R.	10	148	201-6	§§	VIII-XI	(2017),	

making	that	process	available	to	Doe	would	create	only	a	slight	administrative	

burden.		Thus,	all	three	Mathews	factors,	as	applied	to	this	case,	weigh	in	favor	

of	 Doe	 and	 against	 the	 Department.	 	 See	 Mathews,	 424	 U.S.	 at	 335;	 Balian,	

1999	ME	8,	¶	10,	722	A.2d	364.			

      [¶23]		The	Department	argues	that	its	2008	rules	are	adequate	and	that	

they	 should	 apply	 to	 Doe.	 	 As	 mentioned	 earlier,	 the	 2008	 rules	 created	 a	
14	

process	 by	 which	 some	 individuals	 substantiated	 before	 November	 2003	

could	 request	 administrative	 hearings.	 	 See	 18	 C.M.R.	 10	 148	 201	

§§	XIV(B)(1)-(3)	 (effective	 Oct.	 1,	 2008).	 	 The	 Department	 asserts	 that	 these	

rules	 are	 “unambiguous”	 and	 that	 “[s]ubsection	 [four]	 describes	 exactly	

Mr.	Doe’s	case.”		See	18	C.M.R.	10	148	201	§	XIV(B)(4)	(effective	Oct.	1,	2008)	

(“If	 the	 substantiated	 person	 received	 a	 notice	 of	 the	 substantiation	

determination	 when	 it	 was	 made	 (or	 shortly	 thereafter),	 was	 notified	 of	 the	

opportunity	to	request	a	review	of	the	substantiation,	but	failed	to	request	a	

review,	 then	 the	 substantiated	 person	 is	 not	 entitled	 to	 any	 further	 review	

pursuant	to	these	rules.”).			

        [¶24]	 	 Regardless	 of	 whether	 the	 rules	 are	 unambiguous	 or	 describe	

Doe’s	 case,	 they	 are	 unconstitutional	 as	 applied	 to	 Doe	 because	 they	 do	 not	

afford	him	due	process.		In	2003,	Doe	had	no	notice	of	the	consequences	of	his	

substantiation	 because	 the	 Department’s	 letter	 failed	 to	 include	 that	 notice.		

He	did	not	become	aware	of	these	consequences	until	2017,	at	which	time	he	

requested	 a	 hearing.	 	 The	 2008	 rules—retroactively	 affording	 some	

substantiated	 individuals	 an	 opportunity	 for	 a	 hearing—presuppose	 that	 the	

substantiated	individual	had	notice	of	the	consequences	facing	him.9		Because	


   9	 	 There	 would	 be	 no	 due	 process	 violation	 if	 the	 Department	 had,	 after	 changing	 its	 appeal	

process	in	2008,	mailed	a	letter	to	Doe	with:	(1)	notice	of	the	consequences	of	 his	substantiation;	
                                                                                                              15	

the	 Department	 failed	 to	 provide	 such	 notice	 to	 Doe,	 his	 procedural	 due	

process	 rights	 have	 been	 violated.	 	 See	 Kirkpatrick,	 1999	ME	73,	 ¶	 15,	 728	

A.2d	 1268	 (explaining	 that	 “notice	 and	 opportunity	 for	 a	 hearing	 must	 be	

granted	at	a	meaningful	time	and	in	a	meaningful	manner”	(emphasis	added)	

(quotation	marks	omitted)).	

        [¶25]	 	 In	 summary,	 the	 Department’s	 2000	 policy	 is	 judicially	

unenforceable,	the	letter	sent	to	Doe	by	the	Department	in	October	2003	was	

constitutionally	 flawed,	 and	 the	 2008	 rules	 do	 not	 apply	 to	 Doe.	 	 The	

Department’s	 denial	 of	 Doe’s	 request	 as	 untimely	 violates	 Doe’s	 procedural	

due	process	rights.10			

        The	entry	is:	

                          Judgment	 of	 the	 Superior	 Court	 vacated.		
                          Remanded	 with	 instructions	 to	 enter	 a	
                          judgment	 vacating	 the	 Department’s	 decision	
                          and	 remanding	 to	 the	 Department	 for	 further	
                          proceedings	 consistent	 with	 this	 opinion,	
                          starting	 with	 a	 paper	 review	 of	 Doe’s	
                          substantiation.	
	                                	


(2)	 an	 acknowledgment	 that	 there	 had	 been	 no	 process	 before	 November	 1,	 2003,	 available	 to	
appeal	a	paper	review;	and	(3)	notice	that	despite	his	“failure”	to	ask	for	a	paper	review	in	2003,	he	
now	 had	 a	 limited	 period	 of	 time	 to	 challenge	 his	 substantiation.	 	 Such	 a	 mailing	 would	 serve	 to	
notify	other	similarly	situated	individuals	of	the	consequences	of	a	substantiation	and	the	limited	
opportunity	for	administrative	appeals.	
    10		Because	we	conclude	that	Doe	is	entitled	to	a	review	of	his	substantiation	on	this	basis,	we	do	

not	consider	the	merits	of	Doe’s	other	contentions.	
16	

	     	      	      	    	     	
	
Joshua	 Klein-Golden,	 Esq.	 (orally),	 Clifford	 &	 Golden,	 PA,	 Lisbon	 Falls,	 for	
appellant	John	Doe	
	
Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen.	(orally),	
Office	of	the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	
Human	Services	


Androscoggin County Superior Court docket number AP-2017-5
FOR CLERK REFERENCE ONLY
