OPINION OF THE COURT
MEADWESTVACO CORP. V. ILLINOIS DEPT. OFREVENUE
553 U. S. ____ (2008)
SUPREME COURT OF THE UNITED STATES
NO. 06-1413
MEADWESTVACO CORPORATION, successor in in- terest
to the MEAD CORPORATION, PETITIONER
v. ILLINOIS DEPARTMENT
OF REVENUE et al.
on writ of certiorari to the appellate court of
illinois, first district
[April 15, 2008]
Justice Alito delivered the
opinion of the Court.
The Due Process and Commerce
Clauses forbid the States to tax “ ‘extraterritorial
values.’ ”
Container Corp. of America v.
Franchise Tax Bd.,
463 U. S. 159, 164
(1983); see also
Allied-Signal, Inc. v.
Director, Div.
of Taxation,
504 U. S. 768, 777 (1992);
Mobil
Oil Corp. v.
Commissioner of Taxes of Vt.,
445 U. S. 425, 441–442
(1980). A State may, however, tax an apportioned share of the value
generated by the intrastate and extrastate activities of a
multistate enterprise if those activities form part of a
“ ‘unitary business.’ ”
Hunt-Wesson, Inc. v.
Franchise Tax Bd. of Cal.,
528 U. S. 458, 460
(2000);
Mobil Oil Corp.,
supra, at 438. We have
been asked in this case to decide whether the State of Illinois
constitutionally taxed an apportioned share of the capital gain
realized by an out-of-state corporation on the sale of one of its
business divisions. The Appellate Court of Illinois upheld the tax
and affirmed a judgment in the State’s favor. Because we conclude
that the state courts misapprehended the principles that we have
developed for determining whether a multistate business is unitary,
we vacate the decision of the Appellate Court of Illinois.
I
A
Mead Corporation (Mead), an Ohio
corporation, is the predecessor in interest and a wholly owned
subsidiary of petitioner MeadWestvaco Corporation. From its
founding in 1846, Mead has been in the business of producing and
selling paper, packaging, and school and office supplies.[
Footnote 1] In 1968, Mead paid
$6 million to acquire a company called Data Corporation, which
owned an inkjet printing technology and a full-text information
retrieval system, the latter of which had originally been developed
for the U. S. Air Force. Mead was interested in the inkjet printing
technology because it would have complemented Mead’s paper
business, but the information retrieval system proved to be the
more valuable asset. Over the course of many years, Mead developed
that asset into the electronic research service now known as
Lexis/Nexis (Lexis). In 1994, it sold Lexis to a third party for
approximately $1.5 billion, realizing just over
$1 billion in capital gain, which Mead used to repurchase
stock, retire debt, and pay taxes.
Mead did not report any of this
gain as business income on its Illinois tax returns for 1994. It
took the position that the gain qualified as nonbusiness income
that should be allocated to Mead’s domiciliary State, Ohio, under
Illinois’ Income Tax Act (ITA). See Ill. Comp. Stat., ch. 35,
§5/303(a) (West 1994). The State audited Mead’s returns and issued
a notice of deficiency. According to the State, the ITA required
Mead to treat the capital gain as business income subject to
apportionment by Illinois.[
Footnote
2] The State assessed Mead with approximately $4 million
in additional tax and penalties. Mead paid that amount under
protest and then filed this lawsuit in state court.
The case was tried to the bench. Although the
court admitted expert testimony, reports, and other exhibits into
evidence, see App. D to Pet. for Cert. 29a–34a, the parties’
stipulations supplied most of the evidence of record regarding
Mead’s relationship with Lexis, see App. 9–20. We summarize those
stipulations here.
B
Lexis was launched in 1973. For
the first few years it was in business, it lost money, and Mead had
to keep it afloat with additional capital contributions. By the
late 1970’s, as more attorneys began to use Lexis, the service
finally turned a profit. That profit quickly became substantial.
Between 1988 and 1993, Lexis made more than $800 million of
the $3.8 billion in Illinois income that Mead reported. Lexis
also accounted for $680 million of the $4.5 billion in
business expense deductions that Mead claimed from Illinois during
that period.
Lexis was subject to Mead’s
oversight, but Mead did not manage its day-to-day affairs. Mead was
headquartered in Ohio, while a separate management team ran Lexis
out of its headquarters in Illinois. The two businesses maintained
separate manufacturing, sales, and distribution facilities, as well
as separate accounting, legal, human resources, credit and
collections, purchasing, and marketing departments. Mead’s
involvement was generally limited to approving Lexis’ annual
business plan and any significant corporate transactions (such as
capital expenditures, financings, mergers and acquisitions, or
joint ventures) that Lexis wished to undertake. In at least one
case, Mead procured new equipment for Lexis by purchasing the
equipment for its own account and then leasing it to Lexis. Mead
also managed Lexis’ free cash, which was swept nightly from Lexis’
bank accounts into an account maintained by Mead. The cash was
reinvested in Lexis’ business, but Mead decided how to invest
it.
Neither business was required to purchase
goods or services from the other. Lexis, for example, was not
required to purchase its paper supply from Mead, and indeed Lexis
purchased most of its paper from other suppliers. Neither received
any discount on goods or services purchased from the other, and
neither was a significant customer of the other.
Lexis was incorporated as one of Mead’s wholly
owned subsidiaries until 1980, when it was merged into Mead and
became one of Mead’s divisions. Mead engineered the merger so that
it could offset its income with Lexis’ net operating loss
carryforwards. Lexis was separately reincorporated in 1985 before
being merged back into Mead in 1993. Once again, tax considerations
motivated each transaction. Mead also treated Lexis as a unitary
business in its consolidated Illinois returns for the years 1988
through 1994, though it did so at the State’s insistence and then
only to avoid litigation.
Lexis was listed as one of Mead’s “business
segment[s]” in at least some of its annual reports and regulatory
filings. Mead described itself in those reports and filings as
“engaged in the electronic publishing business” and touted itself
as the “developer of the world’s leading electronic information
retrieval services for law, patents, accounting, finance, news and
business information.”
Id., at 93, 59; App. D to Pet. for
Cert. 38a.
C
Based on the stipulated facts and
the other exhibits and expert testimony received into evidence, the
Circuit Court of Cook County concluded that Lexis and Mead did not
constitute a unitary business. The trial court reasoned that Lexis
and Mead could not be unitary because they were not functionally
integrated or centrally managed and enjoyed no economies of scale.
Id., at 35a–36a, 39a. The court nevertheless concluded
that the State could tax an apportioned share of Mead’s capital
gain because Lexis served an “operational purpose” in Mead’s
business:
“Lexis/Nexis was considered in the strategic
planning of Mead, particularly in the allocation of resources. The
operational purpose allowed Mead to limit the growth of Lexis/Nexis
if only to limit its ability to expand or to contract through its
control of its capital investment.”
Id., at 38a–39a.
The Appellate Court of Illinois
affirmed.
Mead Corp. v.
Department of Revenue,
371 Ill. App. 3d 108, 861 N. E. 2d 1131 (2007). The court
cited several factors as evidence that Lexis served an operational
function in Mead’s business: (1) Lexis was wholly owned by
Mead; (2) Mead had exercised its control over Lexis in various
ways, such as manipulating its corporate form, approving
significant capital expenditures, and retaining tax benefits and
control over Lexis’ free cash; and (3) Mead had described
itself in its annual reports and regulatory filings as engaged in
electronic publishing and as the developer of the world’s leading
information retrieval service. See
id., at 111–112, 861
N. E. 2d, at 1135–1136. Because the court found that
Lexis served an operational function in Mead’s business, it did not
address the question whether Mead and Lexis formed a unitary
business. See
id., at 117–118, 861 N. E. 2d, at
1140.
The Supreme Court of Illinois denied review in
January 2007.
Mead Corp. v.
Illinois Dept. of
Revenue, 222 Ill. 2d 609, 862 N. E. 2d 235
(Table). We granted certiorari. 551 U. S. ___ (2007).
II
Petitioner contends that the
trial court properly found that Lexis and Mead were not unitary and
that the Appellate Court of Illinois erred in concluding that Lexis
served an operational function in Mead’s business. According to
petitioner, the exception for apportionment of income from
nonunitary businesses serving an operational function is a narrow
one that does not reach a purely passive investment such as Lexis.
We perceive a more fundamental error in the state courts’
reasoning. In our view, the state courts erred in considering
whether Lexis served an “operational purpose” in Mead’s business
after determining that Lexis and Mead were not unitary.
A
The Commerce Clause and the Due
Process Clause impose distinct but parallel limitations on a
State’s power to tax out-of-state activities. See
Quill
Corp. v.
North Dakota,
504 U. S. 298, 305–306
(1992);
Mobil Oil Corp., 445 U. S., at 451, n. 4
(Stevens, J., dissenting);
Norfolk & Western R. Co. v.
Missouri Tax Comm’n,
390 U. S. 317, 325,
n. 5 (1968). The Due Process Clause demands that there exist
“ ‘some definite link, some minimum connection, between a
state and the person, property or transaction it seeks to
tax,’ ” as well as a rational relationship between the tax and
the “ ‘ “values connected with the taxing
State.” ’ ”
Quill Corp.,
supra, at 306
(quoting
Miller Brothers Co. v.
Maryland,
347 U. S. 340,
344–345 (1954), and
Moorman Mfg. Co. v.
Bair,
437 U. S. 267,
273 (1978)). The Commerce Clause forbids the States to levy taxes
that discriminate against interstate commerce or that burden it by
subjecting activities to multiple or unfairly apportioned taxation.
See
Container Corp., 463 U. S., at 170–171;
Armco
Inc. v.
Hardesty,
467 U. S. 638, 644
(1984). The “broad inquiry” subsumed in both constitutional
requirements is “ ‘whether the taxing power exerted by the
state bears fiscal relation to protection, opportunities and
benefits given by the state’ ”—that is, “ ‘whether the
state has given anything for which it can ask return.’ ”
ASARCO Inc. v.
Idaho Tax Comm’n,
458 U. S. 307, 315
(1982) (quoting
Wisconsin v.
J. C. Penney
Co.,
311 U. S.
435, 444 (1940)).
Where, as here, there is no
dispute that the taxpayer has done some business in the taxing
State, the inquiry shifts from whether the State may tax to what it
may tax. Cf.
Allied-Signal, 504 U. S., at 778
(distinguishing
Quill Corp.,
supra). To answer
that question, we have developed the unitary business principle.
Under that principle, a State need not “isolate the intrastate
income-producing activities from the rest of the business” but “may
tax an apportioned sum of the corporation’s multistate business if
the business is unitary.”
Allied-Signal,
supra,
at 772; accord,
Hunt-Wesson, 528 U. S., at 460;
Exxon
Corp. v.
Department of Revenue of Wis.,
447 U. S. 207, 224
(1980);
Mobil Oil Corp.,
supra, at 442; cf. 1 J.
Hellerstein & W. Hellerstein, State Taxation ¶8.07[1], p. 8–61
(3d ed. 2001–2005) (hereinafter Hellerstein & Hellerstein). The
court must determine whether “intrastate and extrastate activities
formed part of a single unitary business,”
Mobil Oil
Corp.,
supra, at 438–439, or whether the out-of-state
values that the State seeks to tax “ ‘derive[d] from
“unrelated business activity” which constitutes a “discrete
business enterprise.” ’ ”
Allied-Signal,
supra, at 773 (quoting
Exxon Corp.,
supra, at 224, in turn quoting
Mobil Oil Corp.,
supra, at 439 (alteration in original)). We traced the
history of this venerable principle in
Allied-Signal,
supra, at 778–783, and, because it figures prominently in
this case, we retrace it briefly here.
B
With the coming of the Industrial
Revolution in the 19th century, the United States witnessed the
emergence of its first truly multistate business enterprises. These
railroad, telegraph, and express companies presented state taxing
authorities with a novel problem: A State often cannot tax its fair
share of the value of a multistate business by simply taxing the
capital within its borders. The whole of the enterprise is
generally more valuable than the sum of its parts; were it not, its
owners would simply liquidate it and sell it off in pieces. As we
observed in 1876, “[t]he track of the road is but one track from
one end of it to the other, and, except in its use as one track, is
of little value.”
State Railroad Tax Cases,
92 U. S. 575, 608.
The unitary business principle
addressed this problem by shifting the constitutional inquiry from
the niceties of geographic accounting to the determination of the
taxpayer’s business unit. If the value the State wished to tax
derived from a “unitary business” operated within and without the
State, the State could tax an apportioned share of the value of
that business instead of isolating the value attributable to the
operation of the business within the State.
E.g.,
Exxon Corp.,
supra, at 223 (citing
Moorman
Mfg. Co.,
supra, at 273). Conversely, if the value
the State wished to tax derived from a “discrete business
enterprise,”
Mobil Oil Corp., 445 U. S., at 439, then the
State could not tax even an apportioned share of that value.
E.g., Container Corp.,
supra, at
165–166.
We recognized as early as 1876 that the Due
Process Clause did not require the States to assess trackage “in
each county where it lies according to its value there.”
State
Railroad Tax Cases, 92 U. S., at 608. We went so far as to
opine that “[i]t may well be doubted whether any better mode of
determining the value of that portion of the track within any one
county has been devised than to ascertain the value of the whole
road, and apportion the value within the county by its relative
length to the whole.”
Ibid. We generalized the rule of the
State Railroad Tax Cases in
Adams Express Co. v.
Ohio, State Auditor,
165 U. S. 194 (1897).
There we held that apportionment could permissibly be applied to a
multistate business lacking the “physical unity” of wires or rails
but exhibiting the “same unity in the use of the entire property
for the specific purpose,” with “the same elements of value arising
from such use.”
Id., at 221. We extended the reach of the
unitary business principle further still in later cases, when we
relied on it to justify the taxation by apportionment of net
income, dividends, capital gain, and other intangibles. See
Underwood Typewriter Co. v.
Chamberlain,
254 U. S. 113, 117,
120–121 (1920) (net income tax);
Bass, Ratcliff & Gretton,
Ltd. v.
State Tax Comm’n,
266 U. S. 271, 277, 280,
282–283 (1924) (franchise tax);
J. C. Penney Co.,
supra, at 443–445 (tax on the “privilege of declaring
dividends”); cf.
Allied-Signal,
supra, at 780
(“[F]or constitutional purposes capital gains should be treated as
no different from dividends”); see also 1 Hellerstein &
Hellerstein ¶8.07[1] (summarizing this history).
As the unitary business principle has evolved
in step with American enterprise, courts have sometimes found it
difficult to identify exactly when a business is unitary. We
confronted this problem most recently in
Allied-Signal.
The taxpayer there, a multistate enterprise, had realized capital
gain on the disposition of its minority investment in another
business. The parties’ stipulation left little doubt that the
taxpayer and its investee were not unitary. See 504 U. S., at 774
(observing that “the question whether the business can be called
‘unitary’ … is all but controlled by the terms of a stipulation”).
The record revealed, however, that the taxpayer had used the
proceeds from the liquidated investment in an ultimately
unsuccessful bid to purchase a new asset that would have been used
in its unitary business. See
id., at 776–777. From that
wrinkle in the record, the New Jersey Supreme Court concluded that
the taxpayer’s minority interest had represented nothing more than
a temporary investment of working capital awaiting deployment in
the taxpayer’s unitary business. See
Bendix Corp. v.
Director, Div. of Taxation, 125 N. J. 20, 37, 592
A. 2d 536, 545 (1991). The State went even further. It argued
that, because there could be “no logical distinction between
short-term investment of working capital, which all concede is
apportionable, … and all other investments,” the unitary business
principle was outdated and should be jettisoned. 504 U. S., at
784.
We rejected both contentions. We concluded
that “the unitary business principle is not so inflexible that as
new methods of finance and new forms of business evolve it cannot
be modified or supplemented where appropriate.”
Id., at
786; see also
id., at 785 (“If lower courts have reached
divergent results in applying the unitary business principle to
different factual circumstances, that is because, as we have said,
any number of variations on the unitary business theme ‘are
logically consistent with the underlying principles motivating the
approach’ ” (quoting
Container Corp., 463 U. S., at
167)).[
Footnote 3] We explained
that situations could occur in which apportionment might be
constitutional even though “the payee and the payor [were] not …
engaged in the same unitary business.” 504 U. S.
, at 787.
It was in that context that we observed that an asset could form
part of a taxpayer’s unitary business if it served an “operational
rather than an investment function” in that business.
Ibid. “Hence, for example, a State may include within the
apportionable income of a nondomiciliary corporation the interest
earned on short-term deposits in a bank located in another State if
that income forms part of the working capital of the corporation’s
unitary business, notwithstanding the absence of a unitary
relationship between the corporation and the bank.”
Id.,
at 787–788. We observed that we had made the same point in
Container Corp., where we noted that “capital transactions
can serve either an investment function or an operational
function.” 463 U. S., at 180, n. 19; cf.
Corn Products
Refining Co. v.
Commissioner,
350 U. S. 46, 50 (1955)
(concluding that corn futures contracts in the hands of a corn
refiner seeking to hedge itself against increases in corn prices
are operational rather than capital assets), cited in
Container
Corp.,
supra, at 180, n. 19.
C
As the foregoing history
confirms, our references to “operational function” in
Container
Corp. and
Allied-Signal were not intended to modify
the unitary business principle by adding a new ground for
apportionment. The concept of operational function simply
recognizes that an asset can be a part of a taxpayer’s unitary
business even if what we may term a “unitary relationship” does not
exist between the “payor and payee.” See
Allied-Signal,
supra, at 791–792 (O’Connor, J., dissenting); Hellerstein,
State Taxation of Corporate Income from Intangibles:
Allied-Signal and Beyond, 48 Tax L. Rev. 739, 790
(1993) (hereinafter Hellerstein). In the example given in
Allied-Signal, the taxpayer was not unitary with its
banker, but the taxpayer’s deposits (which represented working
capital and thus operational assets) were clearly unitary with the
taxpayer’s business. In
Corn Products, the taxpayer was
not unitary with the counterparty to its hedge, but the taxpayer’s
futures contracts (which served to hedge against the risk of an
increase in the price of a key cost input) were likewise clearly
unitary with the taxpayer’s business. In each case, the “payor” was
not a unitary part of the taxpayer’s business, but the relevant
asset was. The conclusion that the asset served an operational
function was merely instrumental to the constitutionally relevant
conclusion that the asset was a unitary part of the business being
conducted in the taxing State rather than a discrete asset to which
the State had no claim. Our decisions in
Container Corp.
and
Allied-Signal did not announce a new ground for the
constitutional apportionment of extrastate values in the absence of
a unitary business. Because the Appellate Court of Illinois
interpreted those decisions to the contrary, it erred.
Where, as here, the asset in
question is another business, we have described the “hallmarks” of
a unitary relationship as functional integration, centralized
management, and economies of scale. See
Mobil Oil Corp.,
445 U. S., at 438 (citing
Butler Brothers v.
McColgan,
315 U. S. 501, 506–508
(1942)); see also
Allied-Signal,
supra, at 783
(same);
Container Corp.,
supra, at 179 (same);
F. W. Woolworth Co. v.
Taxation and Revenue Dept.
of N. M.,
458 U. S. 354, 364
(1982) (same). The trial court found each of these hallmarks
lacking and concluded that Lexis was not a unitary part of Mead’s
business. The appellate court, however, made no such determination.
Relying on its operational function test, it reserved judgment on
whether Mead and Lexis formed a unitary business. The appellate
court may take up that question on remand, and we express no
opinion on it now.
III
The State and its
amici
argue that vacatur is not required because the judgment of the
Appellate Court of Illinois may be affirmed on an alternative
ground. They contend that the record amply demonstrates that Lexis
did substantial business in Illinois and that Lexis’ own contacts
with the State suffice to justify the apportionment of Mead’s
capital gain. See Br. for Respondents 18–25, 46–49; Brief for
Multistate Tax Commission as
Amicus Curiae 19–29. The
State and its
amici invite us to recognize a new ground
for the constitutional apportionment of intangibles based on the
taxing State’s contacts with the capital asset rather than the
taxpayer.
We decline this invitation
because the question that the State and its
amici call
upon us to answer was neither raised nor passed upon in the state
courts. It also was not addressed in the State’s brief in
opposition to the petition. We typically will not address a
question under these circumstances even if the answer would afford
an alternative ground for affirmance. See
Glover v.
United States,
531 U. S. 198, 205
(2001) (citing
Taylor v.
Freeland & Kronz,
503 U. S. 638,
646 (1992));
Lorillard Tobacco Co. v.
Reilly,
533 U. S. 525,
578 (2001) (Thomas, J., concurring in part and concurring in
judgment).
The case for restraint is particularly
compelling here, since the question may impact the law of other
jurisdictions. The States of Ohio and New York, for example, have
both adopted the rationale for apportionment that respondents urge
us to recognize today. See Ohio Rev. Code Ann. §§5733.051(E)–(F)
(West 2007 Supp. Pamphlet); N. Y. Tax Law Ann. §210(3)(b)
(West Supp. 2008); see also
Allied-Signal Inc. v.
Department of Taxation & Finance, 229 App. Div. 2d
759, 762, 645 N. Y. S. 2d 895, 898 (3d Dept. 1996)
(finding that a “sufficient nexus existed between New York and the
dividend and capital gain income” of the nondomiciliary parent
because “the corporations generating the income taxed … each have
their own connection with the taxing jurisdiction”); 1 Hellerstein
& Hellerstein ¶9.11[2][a]. Neither Ohio nor New York has
appeared as an
amicus in this case, and neither was on
notice that the constitutionality of its tax scheme was at issue,
the question having been raised for the first time in the State’s
brief on the merits. So postured, the question is best left for
another day.[
Footnote 4]
IV
The judgment of the Appellate
Court of Illinois is vacated, and this case is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
Footnote 1
See Prospectus of MeadWestvaco Corporation 3
(Mar. 19, 2003), online at
http://www.sec.gov/Archives/edgar/data/1159297/
000119312503085265/d424b5.htm (as visited Apr. 1, 2008, and
available in Clerk of Court’s case file); App. 9.
Footnote 2
When the sale of Lexis occurred in 1994, the
ITA defined “business income” as “income arising from transactions
and activity in the regular course of the taxpayer’s trade or
business,” as well as “income from tangible and intangible property
if the acquisition, management, and disposition of the property
constitute integral parts of the taxpayer’s regular trade or
business operations.” Ill. Comp. Stat., ch. 35, §5/1501(a)(1) (West
1994). This language mirrors the definition of “business income” in
the Uniform Division of Income for Tax Purposes Act (UDITPA). See
UDITPA §1(a) (2002); see also §9 (subjecting “[a]ll business
income” to apportionment). In 2004, the Illinois General Assembly
amended the definition of “business income” to “all income that may
be treated as apportionable business income under the Constitution
of the United States.” Pub. Act 93–840, Art. 25, §25–5
(codified at Ill. Comp. Stat., ch. 35, §5/1501(a)(1) (West 2004));
cf.
Allied-Signal, Inc. v.
Director, Div. of
Taxation,
504 U. S. 768, 786 (1992) (declining
to adopt UDITPA’s “business income” test as the constitutional
standard for apportionment).
Footnote 3
The dissent agreed that the unitary business
principle remained sound, 504 U. S., at 790 (opinion of O’Connor,
J.), but found merit in New Jersey’s premise (and the New Jersey
Supreme Court’s conclusion) that no logical distinction could be
drawn between short- or long-term investments for purposes of
unitary analysis,
id., at 793 (“Any distinction between
short-term and long-term investments cannot be of constitutional
dimension”). We need not revisit that question here.
Footnote 4
Resolving this question now probably would
not spare the State a remand. The State calculated petitioner’s tax
liability by applying the State’s tax rate to Mead’s apportioned
business income, which in turn was calculated by applying Mead’s
apportionment percentage to its apportionable business income. See
App. 28; Ill. Comp. Stat., ch. 35, §5/304(a) (West 1994). But
if a constitutionally sufficient link between the State and the
value it wishes to tax is founded on the State’s contacts with
Lexis rather than Mead, then presumably the apportioned tax base
should be determined by applying the State’s four-factor
apportionment formula not to Mead but to Lexis. Naturally, applying
the formula to Lexis rather than Mead would yield a different
apportionment percentage. See Brief for Multistate Tax Commission
as
Amicus Curiae 18–19, and n. 9; see also
Hellerstein 802–803.
The Multistate Tax Commission seems to argue
that the difference would not affect the result because application
of the formula to Lexis would have yielded a higher apportionment
percentage. See Brief for Multistate Tax Commission 18–19.
Amicus argues, in other words, that petitioner has no
cause to complain because it caught a break in the incorrect
application of a lower apportionment percentage.
Amicus’
argument assumes what we are in no position to decide: that Lexis’
own apportioned tax base was properly calculated. Had petitioner
been on notice that Lexis, rather than Mead, would supply the
relevant apportionment percentage, it might have persuaded the
state courts that Lexis’ apportionment percentage should have been
even lower than Mead’s. The State’s untimely resort to an
alternative ground for affirmance may have denied petitioner a fair
opportunity to make that argument.
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