                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-4235
                                     ___________

Ronald A. Krentz,                            *
                                             *
              Appellant,                     *
                                             *
       v.                                    *
                                             *
Robertson Fire Protection District;          *
Stephen E. Kirwan, individually and in *         Appeal from the United States
his official capacity as Director and        *   District Court for the
President of the Robertson Fire              *   Eastern District of Missouri
Protection District; Robert S. Zoellner, *
Individually and in his official capacity as *   [PUBLISHED]
Director and Secretary of the Robertson *
Fire Protection District; Vince Grillo,      *
Individually and in his official capacity as *
Member and Treasurer of the Robertson *
Fire Protection District,                    *
                                             *
              Appellees.                     *

                                     ___________

                              Submitted: June 15, 2000

                                    Filed: October 6, 2000
                                     ___________

Before WOLLMAN, Chief Judge, BEAM and BYE, Circuit Judges.
                             ___________

BYE, Circuit Judge.
       Ronald Krentz was fired as chief of the Robertson Fire Protection District (the
District) roughly ten months into a seven-year contract. Krentz filed suit against the
District, its three governing board members, and their attorney alleging violations of his
federal constitutional rights, breach of contract, and several Missouri law claims. In
an omnibus order disposing of all of Krentz’s claims, the district court1 dismissed some
claims, and granted summary judgment in favor of the defendants on others. We
affirm.

                            FACTUAL BACKGROUND

       The District is managed by a board consisting of three elected members. These
members decide personnel matters, make policy for the District, and resolve the range
of issues that require managerial oversight.

       Krentz became chief of the District in 1987. Almost a decade later, on January
4, 1997, the District signed Krentz to a new seven-year contract. Although the board
apparently found Krentz’s performance satisfactory during his first decade as chief, the
Board became increasingly disenchanted with Krentz’s performance during the first
half of 1997.

       In June 1997, the board informed Krentz at an executive session that the District
suffered from a severe morale problem. The board asked Krentz to present a plan to
remedy the firefighters’ lack of morale. Krentz never responded. At roughly the same
time, the board began to question whether Krentz and other officials used District
cellular phones to place personal calls.




      1
        The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.

                                           -2-
       On September 23, 1997, virtually all of the District’s firefighters presented the
board with a signed petition expressing a lack of confidence in Krentz. The petition
asked for Krentz’s removal. At least one employee specifically complained that Krentz
had passed him over for promotion improperly. Finally, on September 29, 1997, the
board placed Krentz on paid leave based upon the allegation that Krentz had offered
jobs to two firefighters without board approval.

       Krentz attributed the board’s changing attitude toward him to its new
membership. In the spring of 1997, Robert Zoellner was elected to the board. During
the election, Zoellner’s campaign had received the support of a firefighter’s union.
Perhaps because of his union affiliation, Zoellner disliked the fact that several fire
officials in the district — including Krentz — received long-term employment
contracts. Krentz felt that Zoellner unfairly targeted him because of his long-term
contract with the District.

       On November 6, 1997, following an investigation, the board sent Krentz a letter
detailing his substandard performance in the preceding months. In that letter, the board
announced its decision to terminate Krentz’s employment. The board offered Krentz
an opportunity to present arguments and evidence in his defense at a special board
meeting scheduled for November 16. The letter demanded that Krentz return District
property in his possession by November 20 — unless the board changed its mind about
his termination.

       Krentz attended the November 16 special board meeting with his attorney.
Krentz’s attorney advised the board, in a hand-delivered letter, that he objected to the
procedures employed by the board. The letter did not dispute the substantive
allegations levied against Krentz and his management regime. Krentz stated that he
wanted to hear the board members’ view of the situation, but the board’s attorney,
Stuart Berkowitz, insisted on speaking for the board at the meeting. Krentz’s attorney
attempted to explain Krentz’s side of the story, but the board demanded to hear from

                                          -3-
Krentz personally. Because Krentz refused to address the board or answer questions,
he and his attorney left the meeting.2 The District removed Krentz from its payroll on
November 20, 1997.

                            PROCEDURAL HISTORY

      Krentz filed suit in district court on July 24, 1998. He named five defendants:

      (1)    Robertson Fire Protection District;
      (2)    Stephen Kirwan, both individually and in his official capacity as a
             District board member;
      (3)    Zoellner, both individually and in his official capacity as a District
             board member;
      (4)    Vince Grillo, both individually and in his official capacity as a
             District board member; and
      (5)    Berkowitz, both individually and in his official capacity as the
             District’s attorney.

      Krentz stated five separate sets of claims:

      (1)    Violations of his due process and equal protection rights under the
             Fourteenth Amendment committed by Kirwan, Zoellner, Grillo and
             Berkowitz;
      (2)    Violations of his free speech, due process and equal protection
             rights under the First and Fourteenth Amendments committed by
             the District;
      (3)    Breach of contract committed by the District;
      (4)    Tortious interference with a contractual relationship committed by
             Zoellner and Berkowitz (a state-law claim); and
      (5)    Intentional infliction of emotional distress against Kirwan, Zoellner
             and Berkowitz (a state-law claim).


      2
        No transcript or record was made of the November 16 board meeting, but the
parties’ accounts of the board meeting are generally consistent.

                                          -4-
      Shortly after Krentz filed suit, the defendants filed a motion to dismiss the
claims. The district court did not immediately resolve the motion. After engaging in
discovery, the parties filed cross-motions for summary judgment. On August 25, 1999,
the court disposed of all of Krentz’s claims (some by dismissal, others by summary
judgment) and entered judgment against him.

      Almost two weeks later, on September 7, 1999, Krentz filed a motion to alter or
amend the judgment (in effect, a motion for reconsideration) under Fed. R. Civ. P.
59(e). The district court denied Krentz’s Rule 59(e) motion in an order filed October
18, 1999.

      Krentz timely appealed discrete portions of the claims raised in his first three
counts — certain procedural due process issues and the state-law breach of contract
claim. Krentz does not challenge the district court’s rulings on two of his state-law
claims (claims (4) and (5)). Krentz also leaves unchallenged many of the federal
claims, including the equal protection claims and the free speech claim.

                                   DISCUSSION

A.    Procedural Due Process Claims

      1.     Post-Deprivation Procedural Safeguards

       Krentz argues that the district court erred in granting the defendants summary
judgment on his procedural due process claims. We review de novo a district court’s
grant of summary judgment by applying the same standard as the district court. See
Treanor v. MCI Telecomm. Corp., 200 F.3d 570, 573 (8th Cir. 2000). Summary
judgment is appropriate when the evidence — viewed in the light most favorable to the
nonmoving party — demonstrates that there are no disputed issues of material fact and


                                         -5-
the moving party is entitled to judgment as a matter of law. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).

        The Due Process Clause of the 14th Amendment provides that, "[n]o State shall
. . . deprive any person of life, liberty, or property, without due process of law." U.S.
Const. amend. XIV, § 1. Procedural due process claims require a two-step analysis.
Initially, a plaintiff must demonstrate that the state deprived him of some “life, liberty,
or property” interest. If successful, the plaintiff must then establish that the state
deprived him of that interest without sufficient “process.”

       Krentz can establish a property interest in his job as fire chief because his
contract with the District anticipated a term of seven years.3 When a state deprives a
public employee of a contractually-created property right to continued employment,
that deprivation “must be preceded by notice and opportunity for hearing appropriate
to the nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950)). Loudermill divides procedural due process claims into three stages. Initially,
an employee receives notice that he will be terminated, and he is given an opportunity
to respond: that is “pretermination process.” Then, the employer actually fires the
employee. Finally, in the third stage, an employee has an opportunity to receive some
measure of post-termination process, usually a hearing with heightened procedural
safeguards. Loudermill instructs us that extensive post-termination proceedings may
cure inadequate pretermination proceedings. See Loudermill, 470 U.S. at 546-48.

      We have interpreted Loudermill to require only limited pretermination process,
especially if post-termination proceedings are available and extensive.



      3
       The District protests to the contrary. The District contends that the contract’s
seven-year term violated Missouri law, and was therefore void. We disagree.

                                           -6-
      The indispensable requirements of a pretermination hearing are notice of
      the charges, an explanation of the employer’s evidence, and an
      opportunity for the employee to present his side of the story. The hearing
      does not have to precede the termination decision, but only must precede
      the termination of benefits. It does not have to be a formal hearing;
      informal meetings with supervisors are sufficient. The Loudermill Court
      emphasized that as long as there are adequate post-termination hearings
      available, the pre-termination hearing need not be extensive.

Schleck v. Ramsey County, 939 F.2d 638, 641-42 (8th Cir. 1991) (internal punctuation
and quotations altered and omitted) (internal citations omitted).

       In sum, although a public employee should receive a hearing, that hearing “need
not be elaborate.” Loudermill, 470 U.S. at 544. “[T]he tenured public employee is
entitled to oral or written notice of the charges against him, an explanation of the
employer’s evidence, and an opportunity to present his side of the story.” Id. at 546.

        Krentz’s pretermination process was twofold. First, the board notified Krentz
of its decision to terminate him by letter of November 6. That letter informed Krentz
of the nature of the charges against him. The letter also announced a special meeting
at which Krentz would be offered an opportunity to respond to the board’s decision.
Second, the meeting itself offered Krentz an opportunity to present his side of the
story.4 See id. at 546.




      4
       Krentz argues that the November 16 meeting was actually post-termination
process, because he had been fired by the terms of the November 6 letter. We
disagree. For purposes of a procedural due process claim, an employee’s termination
becomes effective once the employer ceases to provide benefits. See Schleck, 939
F.2d at 641. Because the District continued to provide benefits to Krentz until
November 20, Krentz was not terminated on November 6.

                                         -7-
       The board provided Krentz constitutionally adequate pretermination process —
though barely so. The board apparently refused to answer Krentz’s questions (or those
of his attorney) on the advice of its counsel. The board neglected to record or
transcribe the hearing. Further, the board peevishly insisted that Krentz’s attorney
could not participate in the hearing.5 Nevertheless, Krentz received notice of the
charges against him. And he could have remained at the November 16 hearing to
address the concerns enunciated in the November 6 letter. Ultimately, our conclusion
that Krentz received adequate pretermination process depends heavily upon the fact
that robust post-termination proceedings may cure superficial pretermination
proceedings. See id. at 547 n.12 (“the existence of post-termination procedures is
relevant to the necessary scope of pretermination procedures”).

       We turn now to the question of post-termination process. Missouri law
demonstrates the availability and adequacy of post-termination proceedings. See id.
at 545 (“Under state law, respondents were later entitled to a full administrative hearing
and judicial review.”).

       The district court determined that fire districts, creatures of state law, are
“agencies” for purposes of the Missouri Administrative Procedure Act (MAPA), Mo.
Rev. Stat. §§ 536.010 - .150.6 We agree. An “‘agency’ means any administrative
officer or body existing under the constitution or by law and authorized by law or the
constitution to make rules or to adjudicate contested cases.” Id. § 536.010(1). A


      5
       Although our cases do not establish that the board had an obligation to listen to
Krentz’s attorney in place of Krentz himself, cf. Riggins v. Board of Regents, 790 F.2d
707, 712 (8th Cir. 1986), the board’s failure to conduct a hearing in which all sides
could meaningfully participate detracts from its contention that its conduct satisfied the
Due Process Clause.
      6
        The parties have not directed us to any Missouri cases that analyze whether fire
districts are MAPA agencies. Our research efforts have likewise ended empty-handed.

                                           -8-
“contested case” is a “proceeding before an agency in which legal rights, duties or
privileges of specific parties are required by law to be determined after hearing.”
Wheeler v. Board of Police Comm’rs of Kansas City, 918 S.W.2d 800, 804 n.2 (Mo.
Ct. App. 1996) (punctuation omitted).

       The Missouri Supreme Court has suggested that state entities with the power to
hire and fire employees effectively engage in the resolution of contested cases. See
Byrd v. Board of Curators, 863 S.W.2d 873, 875 (Mo. 1993). Accordingly, such
entities are “agencies.” We agree with the district court that because the Robertson
Fire Protection District had the power to hire and fire employees — indeed, Krentz’s
termination is but one example of its power — the District was an “agency” for MAPA
purposes. Cf. Green v. St. Louis Hous. Auth., 911 F.2d 65, 72 (8th Cir. 1990)
(“Because we do not find that the district court’s ruling on this [MAPA] question is
fundamentally deficient in analysis, without a reasonable basis, or contrary to reported
state-court opinion, we affirm”).

      Because the District is a MAPA agency, Krentz could have instituted a
“contested case” proceeding under the MAPA after his termination became effective
on November 20.7 See Mo. Rev. Stat. § 536.063; 20 MISSOURI PRACTICE § 9.02 (West
1995) (“[M]any contested cases are initiated other than by an agency . . . . For
example, a public employee may challenge his dismissal.”) (citing Bland v. City of
Trenton, 618 S.W.2d 438, 439-40 (Mo. Ct. App. 1981)). But Krentz declined to
pursue the available MAPA post-termination remedy.



      7
        The MAPA’s “contested case” provisions contemplate extensive proceedings.
See Mo. Rev. Stat. § 536.070. A party to a contested case may call and examine
witnesses under oath, introduce documents and exhibits, file supporting affidavits, and
object to the introduction of evidence. See id. § 536.070(1)-(3), (5)-(12). The agency
must record all proceedings and make transcripts available upon request. See id. §
536.070(4).

                                          -9-
       Further, the MAPA’s contested case provisions, explained in footnote 7, comport
with post-termination requirements imposed by the Due Process Clause. See
Loudermill, 470 U.S. at 546 (“Our holding rests in part on the provisions in Ohio law
for a full post-termination hearing.”) (emphasis added). The extensive procedural
protections provided in Mo. Rev. Stat. § 536.070 suffice to protect the constitutional
interests of aggrieved employees in post-termination proceedings. A MAPA contested
case is tantamount to a “full post-termination hearing.” Id.

       Our cases explain that an employee waives a procedural due process claim by
refusing to participate in post-termination administrative or grievance procedures made
available by the state. See Riggins v. Board of Regents of the Univ. of Neb., 790 F.2d
707, 711 (8th Cir. 1986); Bohn v. County of Dakota, 772 F.2d 1433, 1441 (8th Cir.
1985). In both Riggins and Bohn, the respective plaintiffs were found to have waived
their due process claims because they were aware of the available administrative
procedures, yet they did not pursue relief thereunder. See Riggins, 790 F.2d at 709-10;
Bohn, 772 F.2d at 1441. Krentz’s case is analogous. Krentz could have sought a
contested case hearing under the MAPA, but he did not.

       Krentz’s contention that he was unaware that the MAPA’s provisions applied
to personnel actions taken by fire districts is unavailing. His contention rests upon a
legal (rather than factual) misunderstanding. And in Missouri, “[p]ersons are
conclusively presumed to know the law.” Missouri Highway & Transp. Comm’n v.
Myers, 785 S.W.2d 70, 75 (Mo. 1990); In re Estate of Pittman, 16 S.W.3d 639, 642
(Mo. Ct. App. 2000). Krentz “could have . . . ascertained” the applicability of the
MAPA’s contested case provisions “from a reading of the statutes and pertinent cases.”
Myers, 785 S.W.2d at 75.




                                         -10-
      2.     Decisionmaker’s Bias

        Krentz also raises the specter of bias in the District board’s decision. The right
to a fair and impartial decisionmaker forms an essential part of the protection afforded
by the Due Process Clause. But Krentz must overcome a “presumption of honesty and
integrity in policymakers with decision making power,” and show that the District
board’s decision to terminate him was “infected with bias.” Hortonville Joint Sch.
Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 497 (1976).

       Instead of demonstrating pervasive bias, Krentz raises mere accusations about
a single board member’s views about labor unions. Krentz succeeds in showing that
one of the board members may have harbored pro-union sentiment, an approach
apparently in conflict with Krentz’s own views. But this showing falls far short of
raising a factual dispute necessary to defeat summary judgment.

      3.     Conclusion

        We hold that the MAPA’s contested case provisions offered Krentz a
constitutionally adequate post-termination opportunity to be heard. In addition, Krentz
failed to establish that the board was biased against him. Accordingly, the district court
properly granted the defendants’ motion for summary judgment as to Krentz’s
procedural due process claims.

B.    Breach of Contract

       The district court dismissed Krentz’s breach of contract claim for failure to state
a claim upon which relief could be granted. See Fed. R. Civ. P. 12(b)(6). The court
concluded, as a matter of law, that Krentz’s claim was barred because he neglected to
exhaust his MAPA remedies. We review de novo a district court’s grant of a motion
to dismiss for failure to state a claim under Rule 12(b)(6). See Gordon v. Hansen, 168

                                          -11-
F.3d 1109, 1113 (8th Cir. 1999). “A complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.” Parnes v. Gateway 2000,
Inc., 122 F.3d 539, 545-46 (8th Cir. 1997) (quoting Fusco v. Xerox Corp., 676 F.2d
332, 334 (8th Cir. 1982)). “A complaint must be viewed in the light most favorable to
the plaintiff and should not be dismissed merely because the court doubts that a plaintiff
will be able to prove all of the necessary factual allegations. Thus, as a practical
matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case
in which a plaintiff includes allegations that show on the face of the complaint that there
is some insuperable bar to relief.” Parnes, 122 F.3d at 546.

      As we explained above, fire districts are MAPA agencies. If a MAPA agency
employee is terminated, that employee must exhaust his administrative remedies under
the MAPA before commencing suit in court. See Council House Redev. Corp. v. Hill,
920 S.W.2d 890, 892 (Mo. 1996). In this case, however, Krentz did not exhaust his
administrative remedies. Indeed, Krentz never brought an administrative claim, and the
time has passed in which he could have filed such a claim.

      Even if, as Krentz argues, the District neglected to give him the process he was
due under the MAPA, Krentz’s sole remedy lay within the procedural confines of the
MAPA itself. See Byrd, 863 S.W.2d at 876 (citing Franklin v. Harris, 762 S.W.2d 847,
849 (Mo. Ct. App. 1989)). Having failed to pursue a MAPA claim in timely fashion,
Krentz is foreclosed from litigating the matter in federal court. The district court
properly dismissed Krentz’s breach of contract claim.

      We affirm.




                                           -12-
BEAM, Circuit Judge, dissenting.

       I respectfully suggest that under controlling law, Krentz did not waive his
constitutional right to procedural due process. I also suggest that had Krentz been
afforded the Missouri Administrative Procedures Act (MAPA) (Mo. Stat. Ann. §
536.063) "contested case" hearing now required by the court, his constitutional rights
would still have been violated. Accordingly, I dissent.

       A short analysis of this dispute and the court's resolution is in order. From
Krentz's allegations, it appears that until a more recent run-in with the firefighter's
union, he had had no problems for many years in the performance of the duties of his
tenured position. With union help, Zoellner was elected to the three-person board of
the Robertson Fire Protection District (District), and from there things went down hill
for Krentz. After repeated complaints from union officials and Zoellner, Krentz was
given notice of his termination. At the District board's request, he attended the
November 16, 1997, meeting at which the District chose to speak only through its
lawyer but specifically prohibited Krentz from speaking through his retained counsel.
Krentz excused himself from this one-sided encounter and filed suit in district court,
alleging, for purposes of this dissent, a violation of his constitutional right to procedural
due process. The district court determined for the first time that in Missouri, a local fire
protection district is an "agency" as defined by MAPA and the court in this appeal now
rules that Krentz's failure to exhaust administrative procedures under MAPA
constituted a waiver of constitutional rights. With this determination, I disagree.

       I do, however, agree with several interim conclusions reached by the court. I
agree that Krentz had a property interest in his seven-year contract of employment with
the District and that absent a valid waiver, such interest could not be erased through job
termination without his being accorded procedural due process under the Fourteenth
Amendment. I further agree that his termination occurred on November 20, 1997,
when his benefits were discontinued and that the inelaborate hearing the District

                                            -13-
afforded Krentz on November 16, 1997, met the pre-termination hearing requirements
established by Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). At
that point, however, I respectfully part company with the court.

       The Supreme Court's holding that a pre-termination hearing need not be
elaborate rested, in substantial part, on the fact that Loudermill received a full post-
termination hearing. See Loudermill, 470 U.S. at 546-47. In this 42 U.S.C. § 1983
claim concerning a vested property interest, it is clear that Krentz did not receive a
constitutionally adequate post-termination hearing, and I do not understand the court
to seriously contest this conclusion. However, the court states that Krentz was
responsible for this problem because he walked out of his November 16 meeting with
the District's board and did not thereafter institute a "contested case," as permitted by
MAPA. See Mo. Stat. Ann. §§ 536.010(2) & 536.063(1). I disagree. It was the
District that violated Krentz's procedural due process rights by not providing the "full
post-termination hearing" required by Loudermill and other Supreme Court and Eighth
Circuit precedent. For starters, a tenured employee is simply not required to exhaust
state administrative remedies before bringing a federal action to vindicate constitutional
rights. See Patsy v. Florida Bd. of Regents, 457 U.S. 496, 516 (1982).

       At its core, procedural due process requires "the opportunity to be heard 'at a
meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319,
333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). In a termination
setting, we have stated that a meaningful opportunity to be heard requires:

      1)      clear and actual notice of the reasons for termination in sufficient
             detail to enable him or her to present evidence relating to them;
      2)     notice of both the names of those who have made allegations
             against the [employee] and the specific nature and factual basis for
             the charges;
      3)     a reasonable time and opportunity to present testimony in his or her
             own defense; and

                                          -14-
      4)     a hearing before an impartial board or tribunal.

Riggins v. Board of Regents, 790 F.2d 707, 712 (8th Cir. 1986).

      The court does not dispute these requirements. Instead, it says that procedures
under the "contested case" provisions of MAPA provide Fourteenth Amendment due
process and that Krentz had the duty to seek out and use these particular state remedies
to avoid a waiver of his constitutional rights. This is wrong for several reasons.

       Prior to the district court's holding, Krentz had no hint that MAPA was
applicable to his particular dispute nor did he have a reasonable opportunity to present
a defense because a local fire protection district had never before been found to be an
"agency" within the purview of MAPA. Also, under MAPA, and the facts of this
action, there is no provision for a hearing before an impartial board or tribunal as
required by Riggins. Indeed, this newly minted MAPA agency, acting through its
board, the post-hearing decision-maker under MAPA, had already decided to terminate
Krentz well before the pre-termination Loudermill hearing. How the court can
conclude that under these circumstances, MAPA procedure passes constitutional
muster as the provider of a fair and impartial decision-maker is difficult to understand.

       Of much greater concern to me is the court's conclusion that Krentz waived his
constitutional rights by not unilaterally insisting upon an unconstitutional MAPA
procedure. The court says,

      Because the District is a MAPA agency, Krentz could have instituted a
      "contested case" proceeding under the MAPA after his termination
      became effective on November 20. See Mo. Rev. Stat. § 536.063; 20
      MISSOURI PRACTICE § 9.02 (West 1995) ("[M]any contested cases are
      initiated other than by an agency . . . . For example, a public employee
      may challenge his dismissal.") (citing Bland v. City of Trenton, 618



                                          -15-
      S.W.2d 438, 439-40 (Mo. Ct. App. 1981)). But Krentz declined to
      pursue the available MAPA post-termination remedy.

Ante at 9 (footnote omitted).

       The court relies upon two of our cases to support this unusual requirement,
Riggins, 790 F.2d at 711 and Bohn v. County of Dakota, 772 F.2d 1433, 1441 (8th Cir.
1985). Both are clearly inapposite. The court states, "In both Riggins and Bohn, the
respective plaintiffs were found to have waived their due process claims because they
were aware of the available administrative procedures, yet they did not pursue relief
thereunder. See Riggins, 790 F.2d at 709-10; Bohn, 772 F.2d at 1441." (Emphasis
added.) The emphasized language highlights the court's error. In Riggins, for instance,
the University had a formal grievance procedure, which Riggins had used before, and
she testified that she was aware of it. See Riggins, 790 F.2d at 709. Krentz contends
that he was unaware that MAPA's provisions applied to personnel actions taken by fire
districts. The court's response is,

      in Missouri, "[p]ersons are conclusively presumed to know the law."
      Missouri Highway & Transp. Comm'n v. Myers, 785 S.W.2d 70, 75 (Mo.
      1990); In re Estate of Pittman, 16 S.W.3d 639, 643 (Mo. Ct. App. 2000).
      Krentz "could have . . . ascertained" the applicability of the MAPA's
      contested case provisions "from a reading of the statutes and pertinent
      cases." Myers, 785 S.W.2d at 75.

Ante at 10.

       There is a twofold problem with this answer. Waiver of a constitutional right is
exclusively a question of federal law, Brookhart v. Janis, 384 U.S. 1, 4 (1966). This
court has acknowledged this principle. "[W]aiver becomes a federal question about
which the federal courts are obligated to make their own independent determination."
Williams v. Brewer, 509 F.2d 227, 232 (8th Cir. 1974). And, under federal law, a

                                         -16-
waiver of a constitutionally guaranteed right must be "an intentional relinquishment or
abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464
(1938).

        The court concedes that prior to this case no court, state or federal, had ever held
that fire districts were "agencies" for purposes of MAPA. See ante at 8. However, the
court now establishes precedent that a tenured employee must have the necessary legal
skills or hire and pay counsel with the necessary legal skills to research state law to find
any potentially applicable administrative procedures or risk waiver of a constitutional
right. This flies in the face of established precedent.

       I concede that the Supreme Court has, to date, been reluctant to spell out the
difference, if any, in waiver concepts as they may apply in the civil or criminal context.
However, it has strongly implied, without specifically deciding, that waiver
requirements are the same in either instance. In D.H. Overmyer Co. v. Frick Co., 405
U.S. 174, 185 (1972), the Court assumed without deciding that the same standards
apply in both contexts. In Fuentes v. Shevin, 407 U.S. 67, 95 (1972), the Court again
avoided holding that the standards are the same in civil and criminal cases, but said, "a
waiver of constitutional rights in any context must, at the very least, be clear." Id.
(emphasis in original). In Ohio Bell Telephone Co. v. Public Utilities Commission, the
Court in a civil case said, "we do not presume acquiescence in the loss of fundamental
rights." 301 U.S. 292, 307 (1937). Seven circuits (Second, Third, Fourth, Fifth, Sixth,
Ninth and Eleventh) have either held or strongly stated that the standard for judging
waiver should be the same in both civil and criminal cases.8

       8
        See Lake James Community Volunteer Fire Dep't Inc. v. Burke County, 149
F.3d 277, 280 (4th Cir. 1998) (stating that a contractual waiver of a constitutional right
must be knowing and voluntary); Gete v. INS, 121 F.3d 1285, 1293 (9th Cir. 1997)
(stating that principles governing waiver of constitutional rights apply equally in
criminal and civil context); W.B. v. Matula, 67 F.3d 484, 497 (3d Cir. 1995) (same);
United States v. Local 1804-1, 44 F.3d 1091, 1098 (2d Cir. 1995) (same); K.M.C. Co.

                                           -17-
       In any event, I see no reasoned basis for a different standard. And, returning to
Johnson v. Zerbst, the Court notes that the "courts indulge every reasonable
presumption against waiver of a fundamental constitutional right" and they will not
"presume acquiescence in the loss of fundamental rights." 304 U.S. at 464. The Court
further states that a person cannot waive a constitutional right through ignorance or
negligence. See id. at 465-68.

       In the face of this precedent, to require Krentz to be knowledgeable about
whatever administrative remedy may be lurking among state statutes or suffer a waiver
of constitutional proportions is serious enough. But to charge him with predicting
where the law might go with regard to whether or not a local fire district is an agency
within the purview of MAPA borders on the excessive both as a matter of policy and
as a matter of law. Indeed, in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), the
Supreme Court ruled to the contrary. Curtis was a libel case filed by a public figure,
but not a public official, that had been tried prior to the Supreme Court's decision in
New York Times v. Sullivan, but had not been appealed until after the Sullivan
decision.9 Curtis Publishing first asserted a First Amendment based defense–relying
on the Sullivan decision–in a motion for a new trial. The motion was denied, and the
Fifth Circuit Court subsequently held that Curtis Publishing had waived any First
Amendment based defenses by failing to assert them at trial. The Fifth Circuit found
that Curtis Publishing should have seen "'the handwriting on the wall'" and known that


v. Irving Trust Co., 757 F.2d 752, 756 (6th Cir. 1985) (same); Mosley v. St. Louis
S.W. Ry., 634 F.2d 942, 946 n.5 (5th Cir. 1981) (Mosley also serves as precedent for
the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
1981)). A search of the circuits yielded no case that held there was a different standard
in the civil context.
       9
         In New York Times Co. v. Sullivan, the Supreme Court for the first time
explicitly stated that because of First Amendment considerations a court cannot award
libel/slander damages to a public official, for a falsehood related to his official conduct,
without proof of actual malice. 376 U.S. 254 (1964).

                                           -18-
the Supreme Court would possibly craft a rule providing Curtis Publishing with this
additional defense. Curtis Publishing, 388 U.S. at 143 (quoting Curtis Publ'g Co. v.
Butts, 351 F.2d 702, 734 (5th Cir. 1965)).

       The Supreme Court, by an eight to one margin, held that Curtis Publishing had
not waived its constitutional defense on these facts.10 Although there had previously
been indications in dissenting opinions, and in extra-judicial statements made by a
justice, that a First Amendment rule limiting libel actions brought by public officials
might be crafted, it was not unreasonable for a defendant to assert only state-based
defenses in a trial prior to the Sullivan decision. See id. at 144. Under these
circumstances, Curtis Publishing could not have waived a "known right" before it was
aware of the decision in Sullivan. Id. at 145.

       The Supreme Court indicated a person does not knowingly waive a constitutional
right by failing to predict how the law might develop. Applied to Krentz, waiver should
not be found upon his failure to predict the District subsequently would be held to be
an "agency" subject to MAPA provisions.

       I believe the court's opinion fundamentally changes the legal landscape in this
circuit with regard to waiver of constitutional rights. In doing so, it establishes
exceedingly unfair precedent, especially for tenured employees who do not
independently understand the need for or cannot afford a lawyer to search state statutes
for potentially applicable administrative procedures no matter now obscure.


      10
         The opinion of the court was a plurality opinion joined by four justices. Two
other justices, who had dissented from the final result of the case (which found that no
waiver had been made but that the libel judgment should stand against Curtis
Publishing), explicitly joined in the opinion relating to waiver. And two justices who
dissented from the result indicated that they also believed the constitutional defense had
not been waived because they would have ruled in favor of Curtis Publishing. Curtis
Publ'g, 388 U.S. at 133, 170, 172 n.1.

                                          -19-
The summary judgment should be reversed and Krentz's constitutional claim should be
remanded for trial.

      Accordingly, I dissent.

      A true copy.

            Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                       -20-
