State v. Klinakis

Citation206 Ga.App. 318,425 S.E.2d 665
Decision Date29 October 1992
Docket NumberNo. A92A1030,A92A1030
PartiesThe STATE v. KLINAKIS.
CourtUnited States Court of Appeals (Georgia)

Keith C. Martin, Sol., Kimberly C. Carr, Jackie N. Stanton, Asst. Solicitors, for appellant.

Lynne Y. Borsuk, R. Stephen Roberts, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

The State appeals the order of the trial court granting the motion to dismiss of appellee, Anthony Stanley Klinakis, Sr.

Appellee was charged by accusation of use of fighting words (OCGA § 16-11-39) and simple assault (OCGA § 16-5-20). Appellee filed a plea in abatement as to the OCGA § 16-11-39 charge and demurred to the charge of simple assault.

The incident giving rise to these offenses arose between representatives from different unions during an election confrontation in a Northwest Airlines hangar. Two days later, the alleged victim filed a written complaint with the National Mediation Board asserting that Northwest Airlines (NWA) supervisors were in the area but did nothing to investigate; and, accordingly, NWA "is running interference for the I.A.M. [the competitor union]" and NWA "has not maintained a neutral position before or after [the victim's union] filed for an election on NWA." Held:

1. The State asserts the trial court erred in finding that state court jurisdiction over the above offenses "was preempted by the jurisdiction of the National Labor Board." See generally 45 U.S.C. § 151 et seq. (Railway Labor Act). Appellee pertinently contended that the National Mediation Board had exclusive jurisdiction over representative disputes, and that this was such a dispute. On appeal, appellee asserts that contrary to the State's enumeration of error, the trial court did not rule that subject matter jurisdiction was preempted by the exclusive jurisdiction of the National Mediation Board, but rather held such jurisdiction was preempted because the language as averred in the accusation did not, as a matter of law, constitute "fighting words" in violation of OCGA § 16-11-39(1).

(a) The order of the trial court does not express the basis for granting appellee's motion and plea in abatement as to Count 1, use of fighting words, but it does acknowledge the plea in abatement alleged, inter alia, lack of subject matter jurisdiction, lack of primary jurisdiction, and qualified privilege. The hearing transcript reveals the trial court concluded that because the State's accusation averred only words and heated discussion, rather than crimes of actual violence, such as battery, shooting, or killing, the state court lacked subject matter jurisdiction. The trial court did not hold that the words averred did not violate OCGA § 16-11-39 as a matter of law. Thus, we are satisfied that the trial court in essence concluded the State's interest in prosecuting criminal conduct based on the utterance of "ugly words" was not sufficient to preclude federal preemption. Thereafter, the trial judge granted appellee's motion to dismiss and plea in abatement as to "use of fighting words," and further ruled that the charge of simple assault was moot.

(b) Of major significance is that the use of "fighting words" does not constitute protected speech under the First and Fourteenth Amendments to the United States Constitution or under Art, I, Sec. I, Par. V of the Georgia Constitution. Fighting words constitute one of those narrow speech areas not constitutionally protected. In Bose Corp. v. Consumers Union, etc., 466 U.S. 485, 504-505, 104 S.Ct. 1949, 80 L.Ed.2d 502, it was held: "In each of [the unprotected] areas, the limits of the unprotected category, as well as the unprotected character of particular communications, have been determined by the judicial evaluation of special facts that have been deemed to have constitutional significance. In such cases, the [Supreme Court of the United States] has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited.... The principle of viewpoint neutrality that underlies the First Amendment ... imposes a special responsibility on judges whenever it is claimed that a particular communication is unprotected." Thus, the Supreme Court in Bose, in determining whether certain remarks constituted constitutionally unprotected fighting words, "exercised independent judgment on the question whether particular remarks 'were so inherently inflammatory as to come within that small class of "fighting words" which are "likely to provoke the average person to retaliation, and thereby cause a breach of the peace." ' " Id. at 505, 104 S.Ct. at 1962. Thus, it is beyond controversy that a state may enact a statute making criminal the utterance of "fighting words," provided it does so in a constitutional manner, that is, the criminal statute must be facially constitutional and must be applied constitutionally to a particular offender. Lamar v. Banks, 684 F.2d 714 (11th Cir.) (Ga.Code Ann. § 26-2610(a), currently OCGA § 16-11-39, can withstand constitutional attack only if, as authoritatively construed by our courts, it is not susceptible of application to speech protected by the First and Fourteenth Amendments); compare Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (holding Ga.Code Ann. § 26-6303 unconstitutional on its face; statute was not narrowed to limit application thereof to fighting words).

The constitution of this state provides that "[p]rotection to person and property is the paramount duty of government and shall be impartial and complete." Ga. Const. of 1983, Art. I, Sec. I, Par. II. In partial fulfillment of this duty, our legislature has enacted certain criminal statutes, including OCGA § 16-11-39 (fighting words) and OCGA § 16-5-20 (simple assault). These statutes, each in a different manner and for a different legislative purpose, either prohibit certain limited classes of constitutionally unprotected words or conduct directly relating to some form of an immediate threat of violence. Although these statutes make the prohibited words or conduct only misdemeanor offenses, one clear legislative purpose underlying these laws is to curtail such criminal activity before it escalates into or causes immediate acts of actual violence. The United States Supreme Court has noted that, even under the National Labor Relations Act (NLRA), "state jurisdiction to enforce its laws prohibiting violence, ... is not pre-empted," observing that this type of violation does not involve federally protected conduct. Sears, etc., Co. v. Carpenters, 436 U.S. 180, 204, 98 S.Ct. 1745, 1761, 56 L.Ed.2d 209. In Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151, a NLRA case, after observing that the issue was not whether the strikers' conduct and language were likely to cause physical violence and declining to hold that the abusive language was federally protected, the court observed that "the state court was within its discretionary power in enjoining future acts of violence, intimidation, and threats of violence, by the strikers and the union." (Emphasis supplied.) Id. at 139, 78 S.Ct. at 211. Further, in Hudgens v. Local 315, etc., AFL-CIO, 133 Ga.App. 329, 335, 210 S.E.2d 821 (dictum), which involved the NLRA, this court concluded "the state retains the power to prosecute and punish for violations of its criminal statutes." Compare Sheet Metal, etc., Assn. v. Carter, 133 Ga.App. 872, 212 S.E.2d 645 holding that, notwithstanding the NLRA, the State has jurisdiction over the malicious tort action of conspiracy, inter alia, to deprive employment and means of livelihood. Thus, it would appear that even under situations involving the jurisdiction of the NLRA this state has retained concurrent jurisdiction to enforce those criminal statutes directly relating to the prevention of or incitement of immediate violence or to the prevention of the threat of immediate violence or violent injury. This is so, though actual violence is not required as an essential element of these particular criminal offenses or whether the offenses have been designated by the legislature as felony or misdemeanor.

We find no viable reason not to apply this rule to questions of preemption under the Railway Labor Act. See generally, United States Constitution, Tenth Amendment. At least one circuit has concluded that in suits involving the question of preemption under the Railway Labor Act, the area of state criminal law remains "a matter of primary state responsibility." Air Line Pilots, etc., Inter. v. UAL Corp., 874 F.2d 439, 447(4) (7th Cir.) Furthermore, in the area of enforcement of state criminal laws, "the presumption is against federal preemption" (id.) and, thus, favors an active exercise of criminal jurisdiction by the state. "The state interest in preventing 'conduct [and fighting words] marked by violence and imminent threats to public order' is compelling." Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 386, 89 S.Ct. 1109, 22 L.Ed.2d 344.

Appellant asserts that this case is distinguishable from San Diego, etc., Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, a preemption case involving the NLRA. We note that as this case involves the Railway Labor Act, the NLRA has no direct application. Railroad Trainmen v. Jacksonville Terminal Co., supra 394 U.S. at 377, 89 S.Ct. at 1114. However, assuming that a preemption question is presented to which Garmon could apply (id. at 383, n. 19, 89 S.Ct. at 1118, n. 19), we find the facts of this case fall within one of the exceptions therein recognized. In Garmon, supra 359 U.S. at 243-244, 79 S.Ct. at 778-779, it was held: "When the exercise of state power over a particular area of activity threatened...

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  • Hughes v. State
    • United States
    • Court of Appeal of Florida (US)
    • July 12, 2006
    ...the presumption against preemption. Id.; Air Line Pilots Ass'n, Int'l v. UAL Corp., 874 F.2d 439 (7th Cir.1989); State v. Klinakis, 206 Ga.App. 318, 425 S.E.2d 665, 669 (1992). Hughes argues that his prosecution is expressly preempted by 14 C.F.R. 121 App. I, § XI, which provides, in part, ......
  • Cloyd v. State
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    • Court of Appeal of Florida (US)
    • July 12, 2006
    ...the presumption against preemption. Id.; Air Line Pilots Ass'n, Int'l v. UAL Corp., 874 F.2d 439 (7th Cir.1989); State v. Klinakis, 206 Ga.App. 318, 425 S.E.2d 665, 669 (1992). Cloyd argues that his prosecution is expressly preempted by 14 C.F.R. 121 App. I, § XI, which provides, in part, t......
  • Knowles v. State
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    • United States Court of Appeals (Georgia)
    • February 21, 2017
    ...Profanity, 5 A.L.R.4th 956, § 3.9 Tucker, 233 Ga.App. at 316 (2), 504 S.E.2d 250 (punctuation omitted); accord State v. Klinakis, 206 Ga.App. 318, 319 (1) (b), 425 S.E.2d 665 (1992) ; see N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886, 927 (III), 102 S.Ct. 3409, 73 L.Ed.2d 1215 (198......
  • Menefee v. State
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    • Court of Appeal of Florida (US)
    • April 25, 2008
    ...state criminal-control activity. Id.; Air Line Pilots Ass'n, Int'l v. UAL Corp., 874 F.2d 439 (7th Cir.1989); State v. Klinakis, 206 Ga. App. 318, 425 S.E.2d 665, 669 (1992). As Mr. Menefee frankly acknowledges, neither the Federal Communications Act, nor the regulations implementing that l......
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1 books & journal articles
  • THE STRUCTURE OF CRIMINAL FEDERALISM.
    • United States
    • Notre Dame Law Review Vol. 98 No. 3, March 2023
    • March 1, 2023
    ...App. Div. 1993) (affirming the defendant's conviction for larceny from a federally insured bank). (359) See, e.g., State v. Klinakis, 425 S.E.2d 665, 668-70 (Ga. Ct. App. 1992) (permitting the state to prosecute the defendant for an assault that occurred during a labor dispute). (360) See, ......

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