author: Justice White Justice Blackmun, Justice Brennan, Justice Marshall,

text:
    MORRIS, SUPERINTENDENT, SOUTHERN OHIO CORRECTIONAL FACILITY v. MATHEWS
    No. 84-1636.
    Argued November 4, 1985
    Decided February 26, 1986

      White, J., delivered the opinion of the Court, in which Burger, C. J., and Rehnquist, Stevens, and O’Connor, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, in which Powell, J., joined, post, p. 248. Brennan, J., post, p. 257, and Marshall, J., post, p. 258, filed dissenting opinions.

      Richard David Drake, Assistant Attorney General of Ohio, argued the cause for petitioner. With him on the brief was Anthony J. Celebrezze, Jr., Attorney General.

      Michael George Dane argued the cause for respondent. With him on the brief was Edward F. Marek.

   Justice White

delivered the opinion of the Court.

The question presented in this case is whether a state appellate court provided an adequate remedy for a violation of the Double Jeopardy Clause of the Fifth Amendment, by modifying a jeopardy-barred conviction to that of a lesser included offense that is not jeopardy barred.

I

On February 17,1978, respondent James Michael Mathews and Steven Daugherty robbed the Alexandria Bank in Alexandria, Ohio. After an automobile chase, the police finally surrounded the two men when they stopped at a farmhouse. Soon thereafter, the police heard shots fired inside the house, and respondent then emerged from the home and surrendered to police. When the officers entered the house, they found Daugherty dead, shot once in the head and once in the chest. The police also found the money stolen from the bank hidden in the pantry.

Once in custody, respondent gave a series of statements to law enforcement officials. In his first statement, given one hour after his surrender, respondent claimed that Daugherty and another man had forced him to aid in the bank robbery by threatening to kill both respondent and his girlfriend. Respondent denied shooting Daugherty. In the second statement, given the same day, respondent again denied shooting Daugherty, but admitted that no other man was involved with the robbery, and that he and Daugherty alone had planned and performed the crime.

Two days later, respondent gave a third statement to police in which he again confessed to robbing the bank. Respondent also related that after he and Daugherty arrived at the farmhouse, he had run back out to their van to retrieve the stolen money, and on his way back inside, he “heard a muffled shot from inside the house.” App. 4. Upon investigation, respondent discovered that Daugherty had shot himself in the head. Respondent claimed that Daugherty was still conscious, and called to him by name. Ibid.

The County Coroner initially ruled Daugherty’s death to be a suicide. The Coroner made this determination, however, before receiving the results of an autopsy performed by a forensic pathologist. This report indicated that Daugherty had received two wounds from the same shotgun. The initial shot had been fired while Daugherty was standing, and entered the left side of his face. This shot fractured Daugherty’s skull, and the mere force of the blast would have rendered him immediately unconscious. This wound was not fatal. The second shot was fired while Daugherty was lying on his back, and was fired directly into his heart from extremely close range. This shot was instantaneously fatal. As a result of this evidence, the Coroner issued a supplemental death certificate, listing “multiple gun shot wounds” as the cause of death. Record 295.

Based on the Coroner’s first opinion that Daugherty took his own life, the State did not charge respondent with Daugherty’s death. Instead, he was indicted under Ohio Rev. Code Ann. §2911.01 (Supp. 1984) on aggravated robbery charges. Respondent pleaded guilty on May 17 and was sentenced to a term of incarceration of from 7 to 25 years.

Two days after entering his guilty plea, respondent made the first of two statements in which he admitted having shot Daugherty. Respondent maintained that Daugherty initially had shot himself in the head, and that he was still alive when respondent discovered him after returning to the farmhouse with the stolen money. Acting on the theory that, if Daugherty were dead, respondent could claim that he was kidnaped and had not voluntarily robbed the bank, respondent “put [the gun] an inch or two from [Daugherty’s] chest and pulled the trigger.” App. 6. Respondent’s second statement, given one week later, reiterated these same points. Id., at 8-16.

■On June 1, 1978, the State charged respondent with the aggravated murder of Steven Daugherty. Ohio Rev. Code §2903.01 (1982) defines aggravated murder, in part, as “purposely causing] the death of another . . . while fleeing immediately after committing . . . aggravated robbery.” The aggravated robbery referred to in the indictment was the armed robbery of the Alexandria Bank to which respondent had previously pleaded guilty. The state trial court denied respondent’s pretrial motion to dismiss the aggravated murder indictment as violative of the Double Jeopardy Clause of the Fifth Amendment.

At the conclusion of the evidence, the trial judge instructed the jury as to the elements of the offense of aggravated murder. The judge also instructed the jury on the lesser included offense of murder as follows:

“If you find that the State proved beyond a reasonable doubt all of the essential elements of aggravated murder, your verdict must be guilty of that crime and in that event you will not consider any lesser offense.
“But if you find that the State failed to prove the killing was done while the defendant was committing or fleeing immediately after committing aggravated robbery, but that the killing was nonetheless purposely done, you will proceed with your deliberations and decide whether the State has proved beyond a reasonable doubt the elements of the lesser crime or murder.
“The crime of murder is distinguished from aggravated murder by the State’s failure to prove that the killing was done while the defendant was committing or fleeing immediately after committing the crime of aggravated robbery.” App. 21.

The jury found respondent guilty of aggravated murder, and the court sentenced him to a term of life imprisonment.

Respondent appealed his conviction, claiming that his trial for aggravated murder following his conviction for aggravated robbery violated the Double Jeopardy Clause. The Ohio Court of Appeals, Fifth Judicial District, affirmed his conviction, State v. Mathews, CA No. 2578 (Licking County, Aug. 9, 1979), and the Ohio Supreme Court declined to grant discretionary review. State v. Mathews, No. 79-1342 (Dec. 7, 1979). This Court granted respondent’s petition for writ of certiorari, vacated the Court of Appeals’ judgment, and remanded the case for further consideration in light of Illinois v. Vitale, 447 U. S. 410 (1980). Mathews v. Ohio, 448 U. S. 904 (1980).

On remand, the Court of Appeals found that the Double Jeopardy Clause, as construed by this Court in Vitale, barred respondent’s conviction for aggravated murder. State v. Mathews, No. 2578 (Licking County, Nov. 7, 1980). The court noted, however, that § 2903.01 defines aggravated murder as purposely causing the death of another while committing certain felonies, and that §2903.02 defines murder simply as purposely causing the death of another. App. to Pet. for Cert. A-26. In respondent’s trial, therefore, “if all the facts relating to the aggravated robbery of which he was convicted are excluded from consideration of the court and jury, the defendant was still charged with and convicted of murder in that he did purposely cause the death of Steven Daugherty on the date charged.” Ibid. Accordingly, the Court of Appeals modified the conviction of aggravated murder to murder and reduced respondent’s sentence to an indefinite term of from 15 years to life. Id., at A-27. Once again, the Ohio Supreme Court denied respondent’s motion to appeal, and this Court denied his subsequent petition for certiorari review. Mathews v. Ohio, 451 U. S. 975 (1981).

Respondent then sought a writ of habeas corpus in federal court. Applying the reasoning of the Ohio Court of Appeals, the District Court denied respondent’s petition. Mathews v. Marshall, No. C-1-81-834 (WD Ohio, Apr. 19, 1983).

A divided panel of the Court of Appeals for the Sixth Circuit reversed. Mathews v. Marshall, 754 F. 2d 158 (1985). Although refusing to hold that in a case like this a new trial on the nonbarred charge is always necessary, the court held that “a conviction obtained in violation of the double jeopardy clause cannot be modified if the defendant can show that there was a ‘reasonable possibility that he was prejudiced’ by the double jeopardy violation,” and that “‘an exceedingly small showing . . . would suffice.’” Id., at 162, quoting Graham v. Smith, 602 F. 2d 1078, 1083 (CA2 1979). Apparently agreeing with respondent’s assertion that “evidence was admitted in his trial for aggravated murder that would not have been admissible in a trial for murder,” and stating that the jury “may have [been] prejudiced” by that evidence, the court concluded that respondent had established a sufficient possibility of prejudice to warrant a new trial on the murder charge. Mathews v. Marshall, supra, at 162.

We granted certiorari, 471 U. S. 1134 (1985), and now reverse.

II

As an initial matter, we note several issues that are not in dispute. First, the State concedes that under our cases the prosecution of respondent for aggravated murder violated the Double Jeopardy Clause. Similarly, respondent concedes that the Clause would not prevent the State from trying him for murder. Next, all of the courts that have reviewed this case have agreed that, in finding respondent guilty of aggravated murder, the jury necessarily found that he “purposely cause[d] the death of another,” which is the definition of murder under Ohio Rev. Code Ann. §2903.02 (1982). See n. 4, supra. Finally, this is not a “harmless error” case: allowing respondent to be tried for aggravated murder was error, and it was not in any sense harmless. With these considerations aside, the only issue before us is whether reducing respondent’s conviction for aggravated murder to a conviction for murder is an adequate remedy for the double jeopardy violation.

Respondent argues that, because the trial for aggravated murder should never have occurred, the Double Jeopardy Clause bars the State from taking advantage of the jeopardy-barred conviction by converting it into a conviction for the lesser crime of murder. He submits that a new trial must be granted whether or not there is a showing of prejudice.

Respondent relies heavily on Price v. Georgia, 398 U. S. 323 (1970), but his reliance is misplaced. Price was tried for murder and convicted of the lesser included offense of manslaughter. After that conviction was reversed on appeal, there was another trial for murder and another conviction of the lesser crime of manslaughter. We held that the second conviction could not stand because Price had been impliedly acquitted of murder at the first trial and could not be tried again on that charge. Id., at 329. Nor could we “determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence.” Id., at 331.

This holding in Price did not impose an automatic retrial rule whenever a defendant is tried for a jeopardy-barred crime and is convicted of a lesser included offense. Rather, the Court relied on the likelihood that the conviction for manslaughter had been influenced by the trial on the murder charge — that the charge of the greater offense for which the jury was unwilling to convict also made the jury less willing to consider the defendant’s innocence on the lesser charge. That basis for finding or presuming prejudice is not present here. The jury did not acquit Mathews of the greater offense of aggravated murder, but found him guilty of that charge and, a fortiori, of the lesser offense of murder as well.

Benton v. Maryland, 395 U. S. 784 (1969), also strongly indicates that to prevail here, Mathews must show that trying him on the jeopardy-barred charge tainted his conviction for the lesser included offense. Benton was tried for both larceny and burglary. The jury acquitted him on the larceny count, but found him guilty of burglary. His conviction was later set aside because the jury had been improperly sworn. Benton again was tried for both burglary and larceny, and the second jury found him guilty of both offenses. The Maryland Court of Appeals held there had been no double jeopardy violation, but we disagreed, ruling that the Double Jeopardy Clause required setting aside the larceny conviction and sentence. Id., at 796-797.

Benton urged that his burglary conviction must also fall because certain evidence admitted at his second trial would not have been admitted had he been tried for burglary alone. This evidence, he claimed, prejudiced the jury and influenced their decision to convict him of burglary. We rejected that argument, saying both that “[i]t [was] not obvious on the face of the record that the burglary conviction was affected by the double jeopardy violation,” and that we should not make this kind of evidentiary determination “unaided by prior consideration by the state courts.” Id., at 798 (footnote omitted). We thus vacated the judgment of the Maryland court, and remanded for further proceedings.

Neither Benton nor Price suggests that a conviction for an unbarred offense is inherently tainted if tried with a jeopardy-barred charge. Instead, both cases suggest that a new trial is required only when the defendant shows a reliable inference of prejudice. We perceive no basis for departing from this approach here; for except that murder was a lesser offense included in the aggravated murder charge rather than a separate charge, there is no difference between this case and Benton for double jeopardy purposes.

Accordingly, we hold that when a jeopardy-barred conviction is reduced to a conviction for a lesser included offense which is not jeopardy barred, the burden shifts to the defendant to demonstrate a reasonable probability that he would not have been convicted of the nonjeopardy-barred offense absent the presence of the jeopardy-barred offense. In this situation, we believe that a “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Cf. Strickland v. Washington, 466 U. S. 668, 695 (1984). After all, one of the purposes of the Double Jeopardy Clause is to prevent multiple prosecutions and to protect an individual from suffering the embarrassment, anxiety, and expense of another trial for the same offense, Green v. United States, 355 U. S. 184, 187-188 (1957). In cases like this, therefore, where it is clear that the jury necessarily found that the defendant’s conduct satisfies the elements of the lesser included offense, it would be incongruous always to order yet another trial as a means of curing a violation of the Double Jeopardy Clause.

The Court of Appeals thus was correct in rejecting respondent’s per se submission, but it was nevertheless too ready to find that he had made the necessary showing of prejudice. First, the court’s “reasonable possibility” standard, which could be satisfied by “an exceedingly small showing,” was not sufficiently demanding. To prevail in a case like this, the defendant must show that, but for the improper inclusion of the jeopardy-barred charge, the result of the proceeding probably would have been different.

Second, the Court of Appeals appeared to agree with respondent that certain evidence admitted at his trial would not have been admitted in a separate trial for murder, but it did not expressly say so, nor did it refer to any Ohio authorities. Mathews v. Marshall, 754 F. 2d, at 162. The State submits that under Ohio law, conduct of a defendant tending to show either “his motive or intent,” or his “scheme, plan or system,” is admissible, “notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.” Ohio Rev. Code Ann. §2945.59 (1982). See generally State v. Moorehead, 24 Ohio St. 2d 166, 169, 265 N. E. 2d 551, 553 (1970). We normally accept a court of appeals’ view of state law, but if this case turns on the admissibility of the challenged evidence in a separate trial for murder, the issue deserves a more thorough consideration by the lower court.

Finally, the court’s observation that the admission of questionable evidence “may have prejudiced the jury” falls far short of a considered conclusion that if the evidence at issue was not before the jury in a separate trial for murder, there is a reasonable probability that respondent would not have been convicted.

Because the Court of Appeals’ legal and factual basis for ordering the writ of habeas corpus to issue was seriously flawed, its judgment is reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.

It is so ordered.

Justice Blackmun,

with whom Justice Powell joins, concurring in the judgment.

To remedy the jeopardy-barred prosecution and conviction of respondent James Michael Mathews for aggravated murder, the Ohio appellate court modified the conviction to one for the lesser included offense of murder, which was not jeopardy barred. The United States Court of Appeals for the Sixth Circuit held this remedy constitutionally insufficient because there was a “reasonable possibility” that the presence of the aggravated-murder charge prejudiced respondent’s defense against the charge of murder. I think the Court of Appeals applied the right standard but reached the wrong result. Accordingly, I concur in today’s judgment but do not join the Court’s opinion.

H-

Respondent concedes that after he pleaded guilty to armed robbery Ohio could have tried him for murder without violating the Double Jeopardy Clause. Disagreeing with the Court of Appeals, however, he contends that the presence of the jeopardy-barred charge of aggravated murder in his subsequent trial automatically rendered unconstitutional any conviction resulting from that trial. The Court correctly points out that this position cannot be reconciled with the terms of the judgment in Benton v. Maryland, 395 U. S. 784 (1969). See ante, at 246. Moreover, respondent’s primary argument for his position is unconvincing. He asserts that modifying his conviction from aggravated murder down to simple murder cannot possibly cure the violation, because the trial itself constituted the violation. The Double Jeopardy Clause, however, did not prohibit Ohio from holding a trial, only from seeking a conviction for aggravated murder. (It also barred the State from obtaining a conviction for aggravated murder, but the violation of that prohibition was remedied by the Ohio appellate court’s modification of the judgment.) The error, then, was not that the trial was held, but that it was improperly broad. The prosecution did something it was not allowed to do: it tried respondent for aggravated murder in addition to simple murder. It is true that the prosecutorial conduct at issue is prohibited not simply for its potential effect on the trial’s outcome, but also for the ordeal through which it put the defendant. As a consequence, it is also true that reducing respondent’s sentence does not make him “whole” for the violation: it does not compensate him, for example, for any mental anguish inflicted upon him by the prosecution for the aggravated offense. See Price v. Georgia, 398 U. S. 323, 331, and n. 10 (1970). But it hardly follows from these considerations that the appropriate remedy must always be to set aside the entire conviction and have yet another trial, particularly since one of the purposes of the Double Jeopardy Clause is to promote finality by avoiding multiple trials for the same offense.

Accordingly, the Court of Appeals held that respondent was entitled to a new trial on the murder charge only if he demonstrated a “‘reasonable possibility that he was prejudiced’” by the violation. Mathews v. Marshall, 754 F. 2d 158, 162 (CA6 1985), quoting Graham v. Smith, 602 F. 2d 1078, 1083 (CA2), cert. denied, 444 U. S. 995 (1979). The majority here now rejects that standard and holds that a defendant must demonstrate “a reliable inference of prejudice.” Ante, at 246. This means, the majority explains, that respondent must show that without the error “there is a reasonable probability” that he would not have been convicted of murder. Ibid, (emphasis added). In yet a third formulation of its standard, the Court announces: “To prevail in a case like this, the defendant must show that, but for the improper inclusion of the jeopardy-barred charge, the result of the proceeding probably would have been different.” Ante, at 247. To the extent that these standards differ from the “reasonable possibility” test applied by the Court of Appeals, they are, in my view, unprecedented and inappropriate.

I — I I — I

The Court starts out on the wrong foot by asserting that “this is not a ‘harmless error’ case.” Ante, at 244-245. Fundamentally, this is a “harmless error” case. Ohio concedes that it violated the Double Jeopardy Clause. To say that the remedy imposed by the state courts was constitutionally adequate is simply to say that the State’s acknowledged transgression may be deemed harmless with respect to respondent’s conviction for the lesser included offense. In Chapman v. California, 386 U. S. 18 (1967), this Court rejected the argument that no constitutional violation can ever be harmless. Some constitutional rights, of course, are “so basic to a fair trial” that their denial automatically requires reversal, id., at 23, but I agree with the Court that this category does not include double jeopardy violations of the sort involved here when the ultimate conviction is not for a jeopardy-barred offense. Under Chapman, therefore, respondent’s conviction for simple murder may be sustained if the State shows “beyond a reasonable doubt” that its error did not contribute to the conviction. Id., at 24; see also, e. g., United States v. Hasting, 461 U. S. 499, 511 (1983). As was noted in Chapman, the “harmless . . . beyond a reasonable doubt” standard is essentially the same as a requirement of reversal whenever there is a “reasonable possibility” that the error contributed to the conviction. 386 U. S., at 23-24.

The “reasonable possibility” standard originated in Fahy v. Connecticut, 375 U. S. 85 (1963), where it was applied to the improper introduction of illegally seized evidence. Less than two years prior to this Court’s decision in Chapman, the Court of Appeals for the Second Circuit persuasively demonstrated that the Fahy standard was equally applicable to situations of the kind involved here, i. e., jeopardy-barred prosecutions that ultimately result in convictions on lesser included charges that are not barred. See United States ex rel. Hetenyi v. Wilkins, 348 F. 2d 844 (1965), cert. denied sub nom. Mancusi v. Hetenyi, 383 U. S. 913 (1966). Hetenyi was charged by the State with first-degree murder but convicted only of second-degree murder, a lesser included offense. After his conviction was overturned on appeal, he again was prosecuted for first-degree murder, and ultimately convicted once more only of second-degree murder. Writing for the Court of Appeals, then-judge Marshall noted that the Constitution forbade the reprosecution of Hetenyi for an offense of which he had been impliedly acquitted in the first trial, but that the State constitutionally could have prosecuted Hetenyi again for second-degree murder. Nonetheless, the Court of Appeals invalidated Hetenyi’s reconviction for the lesser offense, because there was a “reasonable possibility that he was prejudiced” by the fact that he was charged with first-degree murder. 348 F. 2d, at 864 (emphasis in original). “For example,” Judge Marshall explained, “it is entirely possible that without the inclusion of the first degree murder charge, the jury, reflecting a not unfamiliar desire to compromise might have returned a guilty verdict on the first degree manslaughter charge,” a lesser included offense of second-degree murder. Id., at 866. The court refused to apply a more lenient test for harmless error, noting:

“The ends of justice would not be served by requiring a factual determination that the accused was actually prejudiced ... by being prosecuted for and charged with first degree murder, nor would the ends of justice be served by insisting upon a quantitative measurement of that prejudice. The energies and resources consumed by such inquiry would be staggering and the attainable level of certainty most unsatisfactory.” Id., at 864.

This Court relied on Hetenyi in Price v. Georgia, 398 U. S. 323 (1970), a case with similar facts. Price was tried for murder and found guilty of manslaughter. His conviction was overturned on appeal, he was retried for murder, and he again was found guilty of manslaughter. This Court held that the reprosecution for murder was barred on double jeopardy grounds, and rejected the State’s argument that the error was rendered harmless by the fact that the second jury convicted Price only of the unbarred offense. Citing Hetenyi, the Court noted that “we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence.” 398 U. S., at 331. The Court did not explicitly employ the “reasonable possibility” standard, but it observed: “The Double Jeopardy Clause ... is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequence of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly.” Ibid. The Court certainly gave no indication that it would consider the error harmless unless Price could show that “but for the improper inclusion of the jeopardy-barred charge, the result of the proceeding probably would have been different.” See ante, at 247.

The Court today offers virtually no explanation for departing from Chapman and Fahy in favor of a more lenient approach. It cites no support at all for the “reliable inference” and “probably would have been different” formulations of the new test it announces. In support of the “reasonable probability” formulation, the Court refers to Strickland v. Washington, 466 U. S. 668 (1984), which used the same words but did not concern the adequacy of a proffered remedy for an acknowledged constitutional violation. The question in Strickland was whether there had been a constitutional violation in the first place. Id., at 691-692. We held that a professionally unreasonable mistake by defense counsel constitutes ineffective assistance of counsel under the Sixth Amendment only if in retrospect there is a “reasonable probability” that the mistake altered the verdict — that is, “a probability sufficient to undermine confidence in the outcome.” Id., at 694; cf. United States v. Bagley, 473 U. S. 667 (1985) (prosecutor’s failure to disclose evidence favorable to the accused violates due process where there is a “reasonable probability” that disclosure would have affected the outcome). In this case, however, it is common ground that respondent’s rights under the Double Jeopardy Clause were violated when Ohio tried him for aggravated murder. The question is not whether Ohio has also violated the Sixth Amendment or the Due Process Clause. The question is whether the State has sufficiently contained the damage from its acknowledged violation of the Double Jeopardy Clause, or whether that transgression taints even the conviction for simple murder. At issue is the extent to which the law will tolerate a conviction that may have been obtained through abridgment of a defendant’s constitutional rights. Once it is established that the State has violated the Constitution in the course of a prosecution, the proceedings lose whatever presumption of regularity they formerly enjoyed, and the State properly bears a heavy burden in arguing that the result should nonetheless be treated as valid.

By ruling, despite Chapman, that a defendant in a case such as this must show more than a reasonable possibility of prejudice to invalidate the conviction, the Court makes double jeopardy violations more readily excusable than any other kind of constitutional error. For me, that makes little sense. Violations of the Double Jeopardy Clause are no less serious than violations of other constitutional protections. Their excusability should be judged by the same standard. The Court offers no real explanation for the special leniency it announces today, and there is none.

I — I I — I

The proper question in this case is thus whether Ohio has shown beyond a reasonable doubt that the aggravated-murder charge did not contribute to respondent’s conviction for simple murder. Under Chapman and Fahy this means that the State must convincingly disprove any reasonable possibility that the greater charge prejudiced respondent’s defense against the lesser. With most errors, the prejudice to be feared is so obvious that there is no need for the defendant to spell it out. When illegally obtained evidence is introduced, or when the prosecutor makes forbidden remarks, it is understood that the danger is that the illegal evidence or the remarks will influence the jury. In this case, however, there is no obvious way in which the defendant could have been prejudiced. The conviction for the jeopardy-barred offense was reduced to one for an unbarred, lesser included offense. There is no possibility of a compromise verdict, as in Hetenyi or Price, because here the jury convicted for the greater offense charged. Nor is there any reason to believe that evidence, regarding the robbery, admitted to prove the aggravating factor in respondent’s trial, would not have been admitted in a trial for simple murder. Like the Federal Rules of Evidence, Ohio’s evidence code allows the introduction of evidence of other crimes to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Ohio Rule Evid. 404(B); see also Fed. Rule Evid. 404(b). The murder in this case was committed while in flight from the bank robbery. The State’s theory is that respondent murdered his accomplice in order to silence him so that respondent could escape prosecution for the robbery and, he hoped, return later to pick up the stolen money he had hidden. There consequently is no apparent reason why evidence of the robbery would not have been admissible to show motive and opportunity for the murder.

Given all this, respondent is obligated to spell out with some specificity how the trial might have gone better for him had the State charged only simple murder. He has not done so; instead, he has simply speculated that all sorts of things might have been different. That is not enough to prevent this Court from “declaring] a belief that [the error] was harmless beyond a reasonable doubt.” Chapman, 386 U. S., at 24. If it were, the remand in Benton v. Maryland, 395 U. S. 784 (1969), would have been inappropriate: the Court there simply would have vacated the burglary conviction, because there was no telling what would have happened had the defendant not been forced to defend himself against the larceny charge. Perhaps different trial tactics would have been tried; perhaps defense counsel would have prepared more fully on the burglary charge. Indéed, if abstract speculations of this sort sufficed to create a “reasonable doubt” that an error was harmless, it is difficult to see how any constitutional error ever would qualify.

I therefore concur in the Court’s judgment, although I see no justification for departing from the traditional and established standards for deciding questions of this kind.

Justice Brennan,

dissenting.

Both the charge for aggravated robbery, to which respondent pleaded guilty, and the subsequent charge for aggravated murder arose from the same criminal transaction or episode. In those circumstances, Ohio’s prosecution for aggravated murder, and the Ohio Court of Appeals’ subsequent reduction of that conviction to simple murder, in my view, violated the prohibition of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), that no person shall be subject for the same offense to be twice put in jeopardy. I adhere to my view that the Double Jeopardy Clause requires that except in extremely limited circumstances not present here, “all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction” be prosecuted in one proceeding. Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (Brennan, J., concurring). See, e. g., Brooks v. Oklahoma, 456 U. S. 999 (1982) (Brennan, J., dissenting); Snell v. United States, 450 U. S. 957 (1981) (Brennan, J., dissenting); Werneth v. Idaho, 449 U. S. 1129 (1981) (Brennan, J., dissenting); Thompson v. Oklahoma, 429 U. S. 1053 (1977) (Brennan, J., dissenting). Accordingly, I would affirm the judgment below reversing the District Court, with directions to the Court of Appeals to remand the case to the District Court with instructions to issue the writ.

However, even on the view that a second prosecution is permissible under the circumstances of this case, I would agree with Justice Blackmun for the reasons stated in his opinion concurring in the judgment, ante, p. 248, that respondent is entitled to a new trial if he could demonstrate a “reasonable possibility” that he was prejudiced. Ante, at 255-256. I also agree with Justice Marshall, post, at 259, that the Court of Appeals’ finding that this standard has been met should be sustained.

Justice Marshall,

dissenting.

For substantially the reasons stated in Parts I and II of Justice Blackmun’s thoughtful concurrence, I believe that the Court of Appeals was correct to conclude that respondent was entitled to a new trial if he could demonstrate a “ ‘reasonable possibility that he was prejudiced’” by the double jeopardy violation, Mathews v. Marshall, 754 F. 2d 158, 162 (CA6 1985) (quoting Graham v. Smith, 602 F. 2d 1078, 1083 (CA2 1979)). This standard is consistent with the approach this Court has uniformly taken when constitutional violations do not require automatic reversal, see ante, at 250-253, and is justified by the difficulties that a defendant wishing to show even the probability of actual prejudice must face.

“There [can] never be any certainty as to whether the jury was actually influenced by the unconstitutionally broad scope of the reprosecution or whether the accused’s defense strategy was impaired by this scope of the charge, even if there were a most sensitive examination of the entire trial record and a more suspect and controversial inquest of the jurors still alive and available.” United States ex rel. Hetenyi v. Wilkins, 348 F. 2d 844, 864 (CA2 1965), cert. denied sub nom. Mancusi v. Hetenyi, 383 U. S. 913 (1966).

The mere absence of any danger in a particular case that the bringing of a jeopardy-barred charge resulted in a compromise verdict, see, e. g., Price v. Georgia, 398 U. S. 323 (1970); Hetenyi, supra, is no reason for adopting a different standard for determining whether a defendant is entitled to a new trial. By impermissibly expanding the scope of the prosecution, the double jeopardy violation may have exposed defendant to serious dangers of another sort.

One of the dangers faced by respondent here was that evidence that would not have been admitted (indeed, might not have even been offered) had he been tried for simple murder came in because the prosecution had brought the jeopardy-barred charge of aggravated murder. The Court of Appeals reversed respondent’s conviction because it found that such otherwise inadmissible evidence had been admitted and “may have prejudiced the jury with regard to its findings as to intent and to the act itself.” 754 F. 2d, at 162. Unlike Justice Blackmun, I see no reason why the Court of Appeals should be required to reconsider its conclusion that respondent was so prejudiced. On such a question of state evidentiary law, “the federal judges who deal regularly with questions of state law in their respective districts and circuits are in a better position than we to determine how local courts would dispose of comparable issues,” Butner v. United States, 440 U. S. 48, 58 (1979). And, in the absence of any indication that the Court of Appeals gave anything less than its full attention to the question whether certain evidence that in fact came in would have been inadmissible in a simple murder trial, I believe that the majority’s decision to remand the case for a “more thorough consideration by the lower court” of this issue, ante, at 248, is disingenuous at best.

       Ohio Rev. Code Ann. § 2911.01 (Supp. 1984) states:
      “(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following:
      “(1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control;
      “(2) Inflict, or attempt to inflict serious physical harm on another.
      “(B) Whoever violates this section is guilty of aggravated robbery, an aggravated felony of the first degree.”
      Respondent was also indicted for theft of the van used in the robbery and for burglary.

       Respondent's handwritten statement, in pertinent part, reads as follows:
      “At that time I ask steve were the money was and he said it was still out in the van. I tould him to cover me I was going out in the van to get the money. He said to me right before I went out to be careful and then I went out to the van, and when I was out there getting ready to come back in I heard a muffled shot and I ran in and yelled for steve. I then heard something like a moning up stairs. I then ran up stairs and seen steve laying there on the floor. He had shot himself somewere in the head and was bleeding pretty bad. He then seen me and said mike, mike, in a moning, and I said oh fuck, he still had the gun in his hand and was trying to load it up but failed and droped it And he then said to me mike mike in a moning voice please shot me. ... I knew he was in a lot of pain and I couldn’t really shot him even though he was in pretty bad shape. But I really didn’t want to, but then I said to myself real quick that if he was dead I could say that I was kidnapped. And they couldn’t prove that I robbed the bank. So I took 1 shell that was laying in steve hand and put it in the gun and I then I put it about an inch or two from his chest and pulled the trigger. I really don’t know much after that but the gun was dropped on the floor not to far from steve body. I then run down stairs and looked for a place to hid the money.” App. 5-6.

       Ohio Rev. Code Ann. §2903.01 (1982) provides, in pertinent part, as follows:
      “(B) No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or escape.
      “(C) Whoever violates this section is guilty of aggravated murder, and shall be punished as provided in section 2929.02 of the Revised Code.”

       Ohio Rev. Code. Ann. § 2903.02 (1982) provides as follows:
      “(A) No person shall purposely cause the death of another.
      “(B) Whoever violates this section is guilty of murder, and shall be punished as provided in section 2929.02 of the Revised Code.”

       The Ohio Court of Appeals relied, in part, on Ohio Rule of Criminal Procedure 31, which states:
      “(C) Conviction of lesser offense. The defendant may be found not guilty of the offense charged but guilty of an attempt to commit it if such an attempt is an offense at law. When the indictment, information, or complaint charges an offense, including degrees, or if lesser offenses are included within the offense charged, the defendant may be found not guilty of the offense charged but guilty of an inferior degree thereof, or of a lesser included offense.”
      The court also cited Ohio Rule of Criminal Procedure 33(A)(4):
      “(4) That the verdict is not sustained by sufficient evidence or is contrary to law. If the evidence shows the defendant is not guilty of the degree of crime for which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict or finding accordingly, without granting or ordering a new trial, and shall pass sentence on such verdict or finding as modified.”

       The dissenting judge was of the view that, even in a separate trial on the murder charges, the rules of evidence would allow the State “to prove the surrounding circumstances, including the facts surrounding the just-completed bank robbery.” 754 F. 2d at 162 (Brown, J., dissenting).

       Ohio Rev. Code Ann. §2945.59 (1982) provides as follows:
      “In any criminal case in which the defendant’s motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.”
      Similarly, Ohio Rule of Evidence 404(b) states:
      “(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

       Hetenyi was actually tried three times, each time for first-degree murder. In the second trial he was convicted of that offense, but the second conviction, like the first, was reversed on appeal on grounds other than double jeopardy. The third trial resulted in a conviction for second-degree murder.

       Since Price, three Courts of Appeals have reviewed whether a double jeopardy violation was adequately remedied by modifying the jeopardy-barred conviction to one for a lesser included offense that was not jeopardy-barred; like the Court of Appeals for the Sixth Circuit in this case, each of the other two courts has followed Hetenyi. In Graham v. Smith, 602 F. 2d 1078 (CA2), cert. denied, 444 U. S. 995 (1979), the court addressed a situation similar to the one involved here. Graham’s conviction for second-degree murder had been reduced on appeal to manslaughter. The modified conviction was then set aside on federal habeas, and the State successfully retried Graham for second-degree murder. Recognizing the double jeopardy violation, a state appellate court reduced the new conviction to manslaughter. This remedy was judged insufficient by the Court of Appeals because Graham’s testimony at the second trial resulted in the introduction of extremely damaging impeachment evidence, and he claimed that he might not have testified had the State charged only manslaughter. The Court of Appeals found this claim doubtful but sufficiently plausible to create a “‘reasonable possibility that [Graham] was prejudiced.’” 602 F. 2d, at 1083, quoting Hetenyi, 348 F. 2d, at 864.
      The Court of Appeals for the Fifth Circuit took a similar approach in Tapp v. Lucas, 658 F. 2d 383 (1981), cert. denied, 456 U. S. 972 (1982), which also involved facts resembling those here. Tapp was prosecuted for murder and convicted of manslaughter. The conviction was set aside, and he was retried for murder, this time with success. To remedy the double jeopardy violation, the State Supreme Court reduced the second conviction to manslaughter. Citing Graham v. Smith, the Court of Appeals upheld this remedy as “a common sense solution to the problem of avoiding yet another trial.” 658 F. 2d, at 386. The court distinguished Price on the ground that “the possibility of prejudicial jury compromise is simply absent from this case.” Ibid, (emphasis added).

       As in Strickland, the Court today defines a “reasonable probability” as “a probability sufficient to undermine confidence in the outcome.” Ante, at 247; Strickland, 466 U. S., at 694. In Strickland, however, we specifically refused to require a showing “that counsel’s deficient conduct more

        likely than not altered the outcome in the ease.” Id., at 693 (emphasis added). The Court’s reliance on some of the language of Strickland therefore renders particularly puzzling its wholly unprecedented demand one paragraph later that the respondent here demonstrate that without the jeopardy-barred charge “the result of the proceeding probably would have been different.” Ante, at 247.


source: Caselaw Access Project

author: Justice Marshall Justice Powell, Justice Brennan,

license: Public Domain

text:
    FISHER et al. v. CITY OF BERKELEY, CALIFORNIA, et al.
    No. 84-1538.
    Argued November 12, 1985
    Decided February 26, 1986
    Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Rehnquist, Stevens, and O’Connor, JJ., joined. Powell, J., filed an opinion concurring in the judgment, post, p. 270. Brennan, J., filed a dissenting opinion, post, p. 274.

      Jon D. Smock argued the cause for appellants. On the briefs were James R. Parrinello, John E. Mueller, and Peter J. Donnici.

      Laurence H. Tribe argued the cause for appellees. With him on the brief were Kathleen M. Sullivan, Myron Moskovitz, and Manuela Albuquerque

      Briefs of amici curiae urging reversal were filed for the California Housing Council, Inc., by Carla A. Hills and William C. Kelly, Jr.; for the Mid-America Legal Foundation by John M. Cannon, Susan W. Wanat, and Ann Plunkett Sheldon; for the Pacific Legal Foundation et al. by Ronald A. Zumbrun and Robert K. Best; and for the Washington Legal Foundation by Daniel J. Popeo and Paul D. Kamenar.

      Briefs of amici curiae urging affirmance were filed for the State of New Jersey Department of the Public Advocate by Richard E. Shapiro; and for the United States Conference of Mayors et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, Stephen Chappie, and Cynthia M. Pols.

      Briefs of amici curiae were filed for the City and County of San Francisco by George P. Agnost and Burk E. Delventhal; for the City of Santa Monica et al. by Robert M. Myers, Stephen S. Stark, Karl M. Manheim, Raymond E. Ott, and K. D. Lyders; for the Berkeley Property Owners’ Association by Thomas A. Seaton; for the California Apartment Association by Jon D. Smock, Wilbur H. Haines III, and Jeffrey J. Gale; for the Coalition for Competition in Apartment Rentals by E. Barrett Prettyman, Jr., and Elwood S. Kendrick; and for the National Apartment Association et al. by Jon D. Smock.

   Justice Marshall

delivered the opinion of the Court.

The question presented here is whether a rent control ordinance enacted by a municipality pursuant to popular initiative is unconstitutional because pre-empted by the Sherman Act.

I

In June 1980, the electorate of the city of Berkeley, California, enacted an initiative entitled “Ordinance 5261-N. S., Rent Stabilization and Eviction for Good Cause Ordinance” (hereafter Ordinance). Section 3 of the Ordinance stated the measure’s purposes:

“The purposes of this Ordinance are to regulate residential rent increases in the City of Berkeley and to protect tenants from unwarranted rent increases and arbitrary, discriminatory, or retaliatory evictions, in order to help maintain the diversity of the Berkeley community and to ensure compliance with legal obligations relating to the rental of housing. This legislation is designed to address the City of Berkeley’s housing crisis, preserve the public peace, health and safety, and advance the housing policies of the City with regard to low and fixed income persons, minorities, students, handicapped, and the aged.” App. to Juris. Statement A-111.

To accomplish these goals, the Ordinance places strict rent controls on all real property that “is being rented or is available for rent for residential use in whole or in part,” §5, id., at A-113. Excepted are government-owned units, transient units, cooperatives, hospitals, certain small owner-occupied buildings, and all newly constructed buildings. For the remaining units, numbering approximately 23,000, 37 Cal. 3d 644, 678, 693 P. 2d 261, 288 (1984), the Ordinance establishes a base rent ceiling reflecting the rents in effect at the end of May 1980. A landlord may raise his rents from these levels only pursuant to an annual general adjustment of rent ceilings by a Rent Stabilization Board of appointed commissioners or after he is successful in petitioning the Board for an individual adjustment. A landlord who fails to register with the Board units covered by the Ordinance or who fails to adhere to the maximum allowable rent set under the Ordinance may be fined by the Board, sued by his tenants, or have rent legally withheld from him. If his violations are willful, he may face criminal penalties.

Shortly after the passage of the initiative, appellants, a group of landlords owning rental property in Berkeley, brought this suit in California Superior Court, claiming, inter alia, that the Ordinance violates their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and seeking declaratory and injunctive relief. The Superior Court upheld the Ordinance on its face, but was reversed by the Court of Appeal. While that appeal was pending, however, this Court’s decision in Community Communications Co. v. Boulder, 455 U. S. 40 (1982), led certain amici to raise the question whether the Ordinance was unconstitutional because pre-empted by the federal antitrust laws. When the California Supreme Court heard the appeal from the Court of Appeal’s decision, it therefore chose to consider plaintiffs’ pre-emption claim along with their Fourteenth Amendment challenge.

Although fully briefed on the question whether the Berkeley Ordinance constitutes state action exempt from antitrust scrutiny under the standard established in Boulder, supra, the California Supreme Court noted that consideration of this issue would become necessary only were there to be “ Truly a conflict between the Sherman Act and the challenged regulatory scheme,”’ 37 Cal. 3d, at 660, 693 P. 2d, at 275 (quoting First American Title Co. v. South Dakota Land Title Assn., 714 F. 2d 1439, 1452 (CA8 1983), cert. denied, 464 U. S. 1042 (1984)). Such a conflict would exist, the Supreme Court concluded, only if the Ordinance on its face mandated conduct prohibited by either § 1 or § 2 of the Sherman Act. See Rice v. Norman Williams Co., 458 U. S. 654, 661 (1982). After reviewing the two “traditional standards” that have consistently been used to determine whether conduct violates § 1 of the Sherman Act — the per se rules and the rule of reason, see National Society of Professional Engineers v. United States, 435 U. S. 679, 692 (1978)—the court concluded that both standards, with their exclusive focus on competition and concern for the selfish motives of private actors, failed to give due deference to a municipality’s legitimate interest in promoting public health, safety, and welfare. 37 Cal. 3d, at 667-673, 693 P. 2d, at 280-285. The Supreme Court therefore found both standards inappropriate and proceeded to apply a standard of its own devising, based upon this Court’s Commerce Clause cases. Applying this test, the court found no conflict between the Ordinance and either § 1 or § 2 of the Sherman Act.

We noted probable jurisdiction limited to the antitrust pre-emption question, 471 U. S. 1124 (1985), and now affirm, although on grounds different from those relied on by the California Supreme Court. While that court was correct in noting that consideration of state action is not necessary unless an actual conflict with the antitrust laws is established, we find traditional antitrust analysis adequate to resolve the issue presented here.

II

We begin by noting that appellants make no claim under either § 4 or § 16 of the Clayton Act, 15 U. S. C. §§ 15 and 26, that the process by which the Rent Stabilization Ordinance was passed renders the Ordinance the product of an illegal “contract, combination ... , or conspiracy.” Appellants instead claim that, regardless of the manner of its enactment, the regulatory scheme established by the Ordinance, on its face, conflicts with the Sherman Act and therefore is preempted.

Recognizing that the function of government may often be to tamper with free markets, correcting their failures and aiding their victims, this Court noted in Rice v. Norman Williams Co., supra, that a “state statute is not pre-empted by the federal antitrust laws simply because the state scheme may have an anticompetitive effect,” id., at 659. See Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 133 (1978). We have therefore held that a state statute should be struck down on pre-emption grounds “only if it mandates or authorizes conduct that necessarily constitutes a violation of the antitrust laws in all cases, or if it places irresistible pressure on a private party to violate the antitrust laws in order to comply with the statute.” 458 U. S., at 661.

While Rice involved a state statute rather than a municipal ordinance, the rule it established does not distinguish between the two. As in other pre-emption cases, the analysis is the same for the acts of both levels of government. See, e. g., White v. Massachusetts Council of Construction Employers, Inc., 460 U. S. 204 (1983). Only where legislation is found to conflict “irreconcilably” with the antitrust laws, Rice, supra, at 659, does the level of government responsible for its enactment become important. Legislation that would otherwise be pre-empted under Rice may nonetheless survive if it is found to be state action immune from antitrust scrutiny under Parker v. Brown, 317 U. S. 341 (1943). The ultimate source of that immunity can be only the State, not its subdivisions. See Community Communications Co. v. Boulder, supra, at 50-51; Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 412-413 (1978) (opinion of Brennan, J.).

A

Appellants argue that Berkeley’s Ordinance is pre-empted under Rice because it imposes rent ceilings across the entire rental market for residential units. Such a regime, they contend, clearly falls within the per se rule against price fixing, a rule that has been one of the settled points of antitrust enforcement since the earliest days of the Sherman Act, see Arizona v. Maricopa County Medical Society, 457 U. S. 332, 344-348 (1982); United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 218 (1940). That the prices set here are ceilings rather than floors and that the public interest has been invoked to justify this stabilization should not, appellants argue, save Berkeley’s regulatory scheme from condemnation under the per se rule.

Certainly there is this much truth to appellants’ argument: Had the owners of residential rental property in Berkeley voluntarily banded together to stabilize rents in the city, their activities would not be saved from antitrust attack by claims that they had set reasonable prices out of solicitude for the welfare of their tenants. See National Society of Professional Engineers v. United States, supra, at 695; United States v. Trans-Missouri Freight Assn., 166 U. S. 290 (1897). Moreover, it cannot be denied that Berkeley’s Ordinance will affect the residential housing rental market in much the same way as would the philanthropic activities of this hypothetical trade association. What distinguishes the operation of Berkeley’s Ordinance from the activities of a benevolent landlords’ cartel is not that the Ordinance will necessarily have a different economic effect, but that the rent ceilings imposed by the Ordinance and maintained by the Rent Stabilization Board have been unilaterally imposed by government upon landlords to the exclusion of private control.

The distinction between unilateral and concerted action is critical here. Adhering to the language of § 1, this Court has always limited the reach of that provision to “unreasonable restraints of trade effected by a 'contract, combination . . . , or conspiracy’ between separate entities.” Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 768 (1984) (emphasis in original). We have therefore deemed it “of considerable importance” that independent activity by a single entity be distinguished from a concerted effort by more than one entity to fix prices or otherwise restrain trade, Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752, 763 (1984). Even where a single firm’s restraints directly affect prices and have the same economic effect as concerted action might have, there can be no liability under § 1 in the absence of agreement. Id., at 760-761; United States v. Parke, Davis & Co., 362 U. S. 29, 44 (1960). Thus, if the Berkeley Ordinance stabilizes rents without this element of concerted action, the program it establishes cannot run afoul of § 1.

Recognizing this concerted-action requirement, appellants argue that the Ordinance “forms a combination between [the city of Berkeley and its officials], on the one hand, and the property owners on the other. It also creates a horizontal combination among the landlords.” Reply Brief for Appellants 10, n. 7. In so arguing, appellants misconstrue the concerted-action requirement of §1. A restraint imposed unilaterally by government does not become concerted action within the meaning of the statute simply because it has a coercive effect upon parties who must obey the law. The ordinary relationship between the government and those who must obey its regulatory commands whether they wish to or not is not enough to establish a conspiracy. Similarly, the mere fact that all competing property owners must comply with the same provisions of the Ordinance is not enough to establish a conspiracy among landlords. Under Berkeley’s Ordinance, control over the maximum rent levels of every affected residential unit has been unilaterally removed from the owners of those properties and given to the Rent Stabilization Board. While the Board may choose to respond to an individual landlord’s petition for a special adjustment of a particular rent ceiling, it may decide not to. There is no meeting of the minds here. See American Tobacco Co. v. United States, 328 U. S. 781, 810 (1946), quoted in Monsanto, supra, at 764. The owners of residential property in Berkeley have no more freedom to resist the city’s rent controls than they do to violate any other local ordinance enforced by substantial sanctions.

B

Not all restraints imposed upon private actors by government units necessarily constitute unilateral action outside the purview of § 1. Certain restraints may be characterized as “hybrid,” in that nonmarket mechanisms merely enforce private marketing decisions. See Rice v. Norman Williams Co., 458 U. S., at 665 (Stevens, J., concurring in judgment). Where private actors are thus granted “a degree of private regulatory power,” id., at 666, n. 1, the regulatory scheme may be attacked under § 1. Indeed, this Court has twice found such hybrid restraints to violate the Sherman Act. See Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384 (1951); California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980).

In Schwegmann, a Louisiana statute authorized a distributor to enforce agreements fixing minimum retail prices not only against parties to such contracts, but also against retailers who sold the distributor’s products without having agreed to the price restrictions. After finding that the statute went far beyond the now-repealed Miller-Tydings Act, which offered a limited antitrust exemption to certain “ ‘contracts or agreements prescribing minimum prices for the resale’” of specified commodities, the Court held that two liquor distributors had violated § 1 when they attempted to hold a retailer to the price-fixing terms of a contract it had refused to sign. In so holding, the Court noted that “when a state compels retailers to follow a parallel price policy, it demands private conduct which the Sherman Act forbids.” 341 U.S, at 389. However, under the Louisiana statute, both the selection of minimum price levels and the exclusive power to enforce those levels were left to the discretion of distributors. While the petitioner-retailer in that case may have been legally required to adhere to the levels so selected, the involvement of his suppliers in setting those prices made it impossible to characterize the regulation as unilateral action by the State of Louisiana.

The trade restraint condemned in Midcal entailed a similar degree of free participation by private economic actors. That case presented an antitrust challenge to California’s requirement that all wine producers, wholesalers, and rectifiers file fair trade contracts or price schedules with the State. If a wine producer did not set prices, wholesalers had to post a resale price schedule for that producer’s brands. No state-licensed wine merchant could sell wine to a retailer at other than those prices. 445 U. S., at 99. The Court found: “California’s system for wine pricing plainly constitutes resale price maintainance in violation of the Sherman Act.... The wine producer holds the power to prevent price competition by dictating the prices charged by wholesalers.” Id., at 103. Here again, the mere existence of legal compulsion did not turn California’s scheme into unilateral action by the State. The Court noted: “The State has no direct control over wine prices, and it does not review the reasonableness of the prices set by wine dealers.” Id., at 100.

The hybrid restraints condemned in Schwegmann and Midcal were thus quite different from the pure regulatory scheme imposed by Berkeley’s Ordinance. While the Ordinance does give tenants — certainly a group of interested private parties — some power to trigger the enforcement of its provisions, it places complete control over maximum rent levels exclusively in the hands of the Rent Stabilization Board. Not just the controls themselves but also the rent ceilings they mandate have been unilaterally imposed on the landlords by the city.

C

There may be cases in which what appears to be a state- or municipality-administered price stabilization scheme is really a private price-fixing conspiracy, concealed under a “gauzy cloak of state involvement,” Midcal, supra, at 106. This might occur even where prices are ostensibly under the absolute control of government officials. However, we have been given no indication that such corruption has tainted the rent controls imposed by Berkeley’s Ordinance. Adopted by popular initiative, the Ordinance can hardly be viewed as a cloak for any conspiracy among landlords or between the landlords and the municipality. Berkeley’s landlords have simply been deprived of the power freely to raise their rents. That is why they are here. And that is why their role in the stabilization program does not alter the restraint’s unilateral nature.

Ill

Because under settled principles of antitrust law, the rent controls established by Berkeley’s Ordinance lack the element of concerted action needed before they can be characterized as a per se violation of § 1 of the Sherman Act, we cannot say that the Ordinance is facially inconsistent with the federal antitrust laws. See Rice v. Norman Williams Co., supra, at 661. We therefore need not address whether, even if the controls were to mandate § 1 violations, they would be exempt under the state-action doctrine from antitrust scrutiny. See Hallie v. Eau Claire, 471 U. S. 34 (1985).

The judgment of the California Supreme Court is

Affirmed.

Justice Powell,

concurring in the judgment.

The Court today reaches out to decide a difficult preemption question when a straightforward and well-settled ground for decision is available. In my view, Berkeley’s Ordinance plainly falls within the “state action” exemption of Parker v. Brown, 317 U. S. 341 (1943), and its progeny. I therefore concur in the judgment, but on grounds different from those discussed in the Court’s opinion.

When a municipal government engages in anticompetitive activity pursuant to a clearly articulated state policy to displace competition with regulation, the “state action” exemption removes the conduct from the coverage of the antitrust laws. Hallie v. Eau Claire, 471 U. S. 34, 38-39 (1985); Community Communications Co. v. Boulder, 455 U. S. 40, 54 (1982). In Hallie, we found such a policy embodied in a state statute that “delegated to [municipalities] the express authority to take action that foreseeably will result in anti-competitive effects.” 471 U. S., at 43. See also Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 415 (1978) (opinion of Brennan, J.) (“[A]n adequate state mandate for anticompetitive activities . . . exists when it is found ‘from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of’”) (citation omitted). Thus, the question in this case is whether California has expressly delegated to Berkeley regulatory power that foreseeably would lead to the anticompetitive effects challenged by appellants.

The history of Berkeley’s ordinance is illuminating. Prior to 1974, Article XI, §3, of the California Constitution required the state legislature to approve all changes in municipal charters. In 1972, in a citywide initiative, Berkeley’s citizens approved a charter amendment authorizing rent control. This charter amendment effectively froze rents at 1971 levels, subject to individual adjustments by a popularly elected rent control board. Birkenfeld v. City of Berkeley, 17 Cal. 3d 129, 138, 550 P. 2d 1001, 1008 (1976). The California Legislature ratified the charter amendment on August 2, 1972, and the rent control plan went into effect. 1972 Cal.Stat. 3370. A group of landlords challenged the rent control plan on a number of constitutional and statutory grounds. In the ensuing litigation, the California Supreme Court invalidated the plan on the ground that it lacked procedural safeguards necessary to protect landlords from confiscatory rent ceilings. Birkenfeld, supra, at 170-172, 550 P. 2d, at 1030-1032. In 1980, in another initiative, Berkeley’s citizens adopted the ordinance at issue in this case. This Ordinance provided the procedural protections that the 1972 charter provision lacked, and it subsequently survived constitutional challenge in state court. 37 Cal. 3d 644, 679-691, 693 P. 2d 261, 289-298 (1984).

The challenged Ordinance thus replaces a rent control plan that was expressly authorized by the state legislature. Under Hallie, a general grant of authority to regulate rents would have sufficed to exempt Berkeley’s Ordinance from the antitrust laws. 471 U. S., at 42. It follows that the legislature’s ratification of a particular rent control plan must also trigger the state-action exemption. See ibid.; Boulder, supra, at 55-56. The remaining issue is whether the authority granted in 1972 remains intact.

Appellants contend that it does not. First, appellants argue that the California Supreme Court’s decision in Birken- feld, invalidating the 1972 charter provision, effectively canceled the legislature’s ratification of that provision. Birkenfeld did not, however, decide that rent control was bad policy, or that it was inconsistent with state law. See Birkenfeld, supra, at 159-164, 550 P. 2d, at 1023-1026 (finding that enacting a rent control plan was a permissible exercise of the city’s police power); Note, 65 Calif. L. Rev. 304, 305 (1977) (“Birkenfeld offers California cities. . . the judicial equivalent of a rent control enabling act”). Rather, the decision stands only for the proposition that cities must couple rent control with procedures for adjusting rent ceilings to avoid fixing rents at confiscatory levels. 17 Cal. 3d, at 167-173, 550 P. 2d, at 1028-1033. Birkenfeld thus left Berkeley’s basic power to impose rent controls unaffected.

Second, appellants contend that since 1972 the state legislature has declared its neutrality respecting a city’s decision to control rents. See Boulder, supra, at 55 (clear articulation requirement is not satisfied “when the State’s position is one of mere neutrality respecting the municipal actions challenged as anticompetitive”). This argument rests on the passage in 1980 of a comprehensive planning and zoning law, one provision of which states:

“Nothing in this article shall be construed to be a grant of authority or a repeal of any authority which may exist of a local government to impose rent controls or restrictions on the sale of real property.” Cal. Govt. Code Ann. § 65589(b) (West 1983) (emphasis added).

By its express terms this statute leaves intact cities’ preexisting authority to adopt rent control provisions. For purposes of the clear articulation requirement, Berkeley’s preexisting authority is defined by the legislature’s ratification of the city’s 1972 charter amendment.

For these reasons, I would find that Berkeley’s Ordinance is exempt from the antitrust laws under our decisions in Hallie and Boulder. By ratifying Berkeley’s charter amendment, the state legislature expressly authorized Berkeley to control rents. The State has not since rescinded that authorization. That is all we need decide in this case.

I therefore concur in the judgment, and express no view on the merits of the pre-emption issue decided by the Court.

Justice Brennan,

dissenting.

Since Parker v. Brown, 317 U. S. 341 (1943), the Court has wrestled with the question of the degree to which federal antitrust laws prohibit state and local governments from imposing anticompetitive restraints on trade. Laws which impose such restraints have been held to be exempt from antitrust scrutiny if they constitute action of the State itself in its sovereign capacity, or state-authorized municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy. See Community Communications Co. v. Boulder, 455 U. S. 40, 52 (1982). Today, the Court holds that a municipality’s price-fixing scheme is not pre-empted by the federal antitrust laws whether or not the scheme is state-authorized, or furthers or implements a clearly articulated and affirmatively expressed state policy. Because today’s decision discards over 40 years of carefully considered precedent, I respectfully dissent.

I

A

Rent Stabilization Ordinance (hereafter Ordinance) effectively fixes prices for rental units in the city of Berkeley. In Rice v. Norman Williams Co., 458 U. S. 654, 661 (1982), we held that a state statute

“may be condemned under the antitrust laws only if it mandates or authorizes conduct that necessarily constitutes a violation of the antitrust laws in all cases, or if it places irresistible pressure on a private party to violate the antitrust laws in order to comply with the statute. Such condemnation will follow under § 1 of the Sherman Act when the conduct contemplated by the statute is in all cases a per se violation.”

In this case, by declaring maximum prices landlords may charge, Berkeley’s Ordinance irresistibly pressures landlords to fix prices for their rental units. Thus, the Ordinance “facially conflict[s] with the Sherman Act because it mandate[s] [price fixing], an activity that has long been regarded as a per se violation of the Sherman Act.” Id., at 659-660 (emphasis in original).

The Court recognizes that the Ordinance imposes anti-competitive restraints on trade, and that it has the same effect on the housing market as would a conspiracy by landlords to fix rental prices. Ante, at 266. Despite this, the Court holds that the Ordinance is not pre-empted by the Sherman Act because prices are fixed “unilaterally” by the city, rather than by “contract, combination, or conspiracy.” I do not read our decisions necessarily to require proof of such concerted action as a prerequisite to a finding of preemption. Certainly, nothing we said in Rice supports such a narrow view of pre-emption. Our other decisions have found statutes in conflict with the Sherman Act because they eliminated price competition in the relevant market.

In California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980), a wine wholesaler sought to enjoin enforcement of a California statute which effectively required it to sell wines at prices set by producers. The Court focused on the fact that the statute eliminated price competition, and held that the wine-pricing system constituted resale price maintenance in violation of the Sherman Act. The Midcal decision squarely controls the result here. Just as the statute challenged in Midcal compelled wine wholesalers to charge prices set by wine producers, Berkeley’s Ordinance compels landlords to charge prices set by the city. The city “holds the power to prevent price competition by dictating the prices charged” by landlords. Id., at 103. “[S]uch vertical control destroys horizontal competition as effectively as if [landlords] ‘formed a combination and endeavored to establish the same restrictions ... by agreement with each other.’” Ibid. (quoting Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373, 408 (1911)).

Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384 (1951), is also directly on point. In Schwegmann, a Louisiana statute authorized liquor distributors to enforce agreements fixing minimum retail prices on their products against retailers who had not agreed to the price restrictions. The Court held that the statutory scheme amounted to resale price maintenance, in violation of the Sherman Act. To paraphrase the Court in Schwegmann, “when [the city] compels [landlords] to follow a parallel price policy, it demands private conduct which the Sherman Act forbids.” Id., at 389. “[W]hen [landlords] are forced to abandon price competition, they are driven into a compact in violation of the spirit of the proviso which forbids ‘horizontal’ price fixing.” Ibid. (emphasis in original).

B

Even if I accepted the Court’s analysis of the antitrust preemption issue, I would find a functional “combination” in this case between the city of Berkeley and its officials, on the one hand, and the landlords on the other — a combination that operates to fix prices for rental units in Berkeley. To reach a contrary result, the Court simply states a conclusion — that “[a] restraint imposed unilaterally by government does not become concerted action within the meaning of the statute simply because it has a coercive effect upon parties who must obey the law.” Ante, at 267. The Court doesn’t explain why this is so — it simply baldly asserts that “[t]he ordinary relationship between the government and those who must obey its regulatory commands whether they wish to or not is not enough to establish a conspiracy.” Ibid. The best I can make of this is that the Court apparently would interpret the Sherman Act to forbid only privately arranged price-fixing schemes. See ante, at 267-269. That interpretation would be plainly misguided.

Section 1 of the Sherman Act declares illegal restraints of trade resulting from any “contract, combination ... , or conspiracy.” 15 U. S. C. § 1. Understandably, that wording has led the Court to draw a “basic distinction” between concerted and independent action, and to hold that “[independent action is not proscribed” by § 1. Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752, 761 (1984). However, until today we have not held, or indeed even suggested, that government-imposed restraints on economic actions cannot constitute concerted action. Rather, both Schwegmann and Midcal held that state statutes which “had a coercive effect upon parties who must obey the law” violated § l.

If the Ordinance allowed the individual landlords ultimately to set their own rental prices, I might understand the Court’s conclusion that any resulting price restraints did not necessarily result from collective action. Cf. Monsanto Co. v. Spray-Rite Service Corp., supra, at 761. However, because the Ordinance has the force of law, the city can compel landlords to do what the Sherman Act plainly forbids — to fix prices for rental units in Berkeley. Regardless of whether the landlords “agree” to the prices charged, the circumstances here clearly “exclude the possibility that the [city and the landlords] were acting independently.” 465 U. S., at 764. The Ordinance eliminates price competition more effectively than any private “agreement” ever could, and is therefore pre-empted by the Sherman Act. The Court’s contrary conclusion does not further, as it argues, but rather distorts “traditional antitrust analysis.” Ante, at 264.

II

Ultimately, the Court is holding that a municipality’s authority to protect the public welfare should not be constrained by the Sherman Act. That holding excludes a broad range of local government anticompetitive activities from the reach of the antitrust laws. This flies in the face of the fact that Congress has not enacted such a broad antitrust exemption for municipalities. See Community Communications Co. v. Boulder, 455 U. S. 40 (1982); Lafayette v. Louisiana Power & Light Co., 435 U. S. 389 (1978); cf. 15 U. S. C. § 35(a) (1982 ed., Supp. II) (immunizing local governments only from liability for damages for violations of the antitrust laws). “In light of the serious economic dislocation which could result if cities were free to place their own parochial interests above the Nation’s economic goals reflected in the antitrust laws, ... we [have been] especially unwilling to presume that Congress intended to exclude anticompetitive municipal action from their reach.” Lafayette, supra, at 412-413 (plurality opinion). “The Parker state-action exemption reflects Congress’ intention to embody in the Sherman Act the federalism principle that the States possess a significant measure of sovereignty under our Constitution. But this principle contains its own limitation: Ours is a ‘dual system of government,’ Parker, 317 U. S., at 351 (emphasis added), which has no place for sovereign cities.” Community Communications Co. v. Boulder, supra, at 53. Of course, our decisions do not foreclose municipalities from enacting anticompetitive measures in the public interest, but only require that such actions be state-authorized and be implemented pursuant to a clearly articulated and affirmatively expressed state policy to displace competition with regulation or monopoly service. See 455 U. S., at 52. Berkeley’s Ordinance plainly is not exempt from antitrust scrutiny under this standard.

Appellees suggest that three considerations support their argument that the Ordinance implements a clearly articulated and affirmatively expressed state policy authorizing municipalities to enact rent control measures: (1) the state legislature’s 1972 ratification of a city rent control charter amendment; (2) the California Supreme Court’s decision in Birkenfeld v. City of Berkeley, 17 Cal. 3d 129, 550 P. 2d 1001 (1976), which ultimately invalidated that amendment; and (3) the city’s state-law obligation to provide affordable housing. None of these considerations support appellees’ position.

First, in 1972, Berkeley adopted a rent control charter amendment, which was approved by concurrent resolution of both houses of the state legislature. There are serious doubts that this purely proforma approval would qualify the amendment for the Parker exemption. See Cantor v. Detroit Edison Co., 428 U. S. 579 (1976). In any event, that amendment was subsequently invalidated by the California Supreme Court, and the legislature’s actions respecting its passage afford no support for the claimed exemption of the current Ordinance from antitrust scrutiny.

Second, the Birkenfeld decision, while invalidating Berkeley’s rent control amendment, found state authority for such measures in constitutional provisions conferring upon cities the power to “make and enforce ... all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” 17 Cal. 3d, at 140, 550 P. 2d, at 1009-1010. But we have made clear that such general grants of authority do not constitute the required mandate to engage in conduct that necessarily constitutes a violation of the antitrust laws. See Community Communications Co., 455 U. S., at 55. “Acceptance of such a proposition . . . would wholly eviscerate the concepts of ‘clear articulation and affirmative expression’ that our precedents require.” Id., at 56.

Third, state law requires cities to “make adequate provision for the housing needs of all economic .segments of the community.” Cal. Govt. Code Ann. § 65580(d) (West 1983). But, although appellees argue that rent control measures are a “foreseeable result” of these statutory obligations, see Hallie v. Eau Claire, 471 U. S. 34 (1985), those laws are expressly neutral with respect to a city’s authority to impose rent controls. California Govt. Code Ann. § 65589(b) (West 1983) expressly provides that “nothing in this article shall be construed to be a grant of authority or a repeal of any authority which may exist of a local government to impose rent controls.” See also Cal. Health & Safety Code Ann. § 50202 (West Supp. 1986) (“[N]othing in this division shall authorize the imposition of rent regulations or controls”). The requirement of “ ‘clear articulation and affirmative expression’ is not satisfied when the State’s position is one of mere neutrality respecting the municipal actions challenged as anti-competitive.” Community Communications Co., supra, at 55 (emphasis in original). Plainly, by that standard the Ordinance does not qualify for the Parker exemption from antitrust liability.

Ill

Finally, appellees suggest that a finding of pre-emption in this case will severely restrict a municipality’s authority to enact a variety of measures in the public interest. “But this argument is simply an attack upon the wisdom of the longstanding congressional commitment to the policy of free markets and open competition embodied in the antitrust laws.” Community Communications Co., supra, at 56. Congress may ultimately agree with appellees’ argument, and may choose to amend the antitrust laws to grant municipalities broad discretion to enact anticompetitive measures in the public interest. Pending such amendment, however, only a clearly articulated and affirmatively expressed state policy will exempt ordinances like this from the reach of the Sherman Act.

       In 1982, while this case was pending in the California Court of Appeal, the Berkeley electorate enacted the “Tenants’ Rights Amendments Act of 1982,” revising certain sections of the 1980 Ordinance. Like the California Supreme Court, we review the Ordinance as amended, see 37 Cal. 3d 644, 654, n. 2, 693 P. 2d 261, 270, n. 2 (1984); all reference herein will therefore be to the 1982 version of the Ordinance.

       Though they have not pressed the point with any vigor in this Court, appellants have suggested that Berkeley’s rent controls constitute attempted monopolization because the city “is clearly engaged in the provision of housing in the public sector” and using the controls to depress the prices of residential properties as a prelude to taking them over. Tr. of Oral Arg. 14-15. As to this claim, we note only that the inquiry demanded by appellants’ allegations goes beyond the scope of the facial challenge presented here. See Rice v. Norman Williams Co., 458 U. S., at 661.

       When Berkeley’s charter amendment was passed in 1972, Article XI, § 3(a), of the California Constitution read:
      “For its own government, a county or city may adopt a charter by majority vote of its electors voting on the question. The charter is effective when filed with the Secretary of State. A charter may be amended, revised, or repealed in the same manner. A charter, amendment, revision, or repeal thereof shall be published in the official state statutes. . . . The provisions of a charter are the law of the State and have the force and effect of legislative enactments.”
      This provision was construed to require that charter amendments be approved by concurrent resolution of both houses of the state legislature. Birkenfeld v. City of Berkeley, 17 Cal. 3d 129, 137, n. 2, 550 P. 2d 1001, 1007, n. 2 (1976).

       The 1972 charter provision permitted individual adjustments of the across-the-board rent ceiling only on a unit-by-unit basis, and only after a hearing on the particular unit whose rent was to be raised. The California Supreme Court found that this limitation “put the [rent control board] in a procedural strait jacket,” and “unnecessarily preelude[d] reasonably prompt action” on meritorious petitions by landlords. Birkenfeld, supra, at 171, 172, 550 P. 2d, at 1031, 1032.

         Rice held that a “state statute is not pre-empted by the federal antitrust laws simply because the state scheme might have an anticompetitive effect.” 458 U. S., at 659. Rice involved a challenge to a California statute which effectively allowed liquor distillers to control distribution of their products in the State. The Court concluded that because such vertical nonprice restraints are not per se illegal under the Sherman Act, see Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36 (1977), the statute was not pre-empted. 458 U. S., at 661; see also Exxon Corp. v. Governor of Maryland, 437 U. S. 117 (1978); Joseph E. Seagram & Sons, Inc. v. Hostetler, 384 U. S. 35 (1966). In contrast, Berkeley’s Rent Stabilization Board fixes prices for rental units in the city. Unlike nonprice restraints, price fixing has traditionally been held to be per se illegal under the Sherman Act. See Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373 (1911).

       The Court would distinguish Schwegmann and Midcal based on the role of private parties in setting prices. Ante, at 268-269. The Court characterizes the statutory restraints imposed in those cases as “hybrid, in that nonmarket mechanisms merely enforce private marketing decisions.” Ante, at 267. In this ease, the Court argues, Berkeley’s landlords have no control over the prices they charge. Ibid.

      True, in both cases private parties, rather than the State, were largely responsible for setting the prices that retailers had to adhere to. However, the lack of state supervision over price-fixing activities was only relevant to whether the challenged statutes were immune from antitrust liability under Parker v. Brown, 317 U. S. 341 (1943), see Midcal, 445 U. S., at 105; neither decision drew the distinction the Court today creates between “unilateral” and “hybrid” governmental restraints. In both eases the chai-lenged statute was found invalid simply because it compelled private parties to charge fixed prices for their products, conduct which the Sherman Act forbids. See Schwegmann, 341 U. S., at 389; Midcal, supra, at 103. The Court’s “distinction” ignores the fact that price fixing has the same deleterious effect upon the competitive market whether prices are set by an administrative body or by private parties. Thus, regardless of whether Berkeley’s landlords have some role in setting the prices they must charge, the coercive effect of the city’s Ordinance results in concerted action vio-lative of the Sherman Act.

       At that time, the State Constitution required the legislature to approve city charter amendments. See Birkenfeld v. City of Berkeley, 17 Cal. 3d, 129, 137, n. 2, 550 P. 2d, 1001, 1007, n. 2 (1976). In 1974, the State Constitution was amended to eliminate this requirement.