Thomas ex rel. Situated v. Nev. Yellow Cab Corp.

• Decision Date: 24 September 2014
• Docket Number: No. 61681.,61681.
• Citation: 327 P.3d 518,130 Nev. Adv. Op. 52
• Parties: Christopher THOMAS and Christopher Craig, Individually and on Behalf of Others Similarly Situated, Appellants, v. NEVADA YELLOW CAB CORPORATION; Nevada Checker Cab Corporation; and Nevada Star Cab Corporation, Respondents.
• Court: Nevada Supreme Court

327 P.3d 518

130 Nev. Adv. Op. 52

Christopher THOMAS and Christopher Craig, Individually and on Behalf of Others Similarly Situated, Appellants,

v.NEVADA YELLOW CAB CORPORATION; Nevada Checker Cab Corporation; and Nevada Star Cab Corporation, Respondents.

No. 61681.

Supreme Court of Nevada.

June 26, 2014.

Rehearing Denied Sept. 24, 2014.

Recognized as Repealed by Implication

West's NRSA 608.250(2)(e)Leon Greenberg, a Professional Corporation, and Leon M. Greenberg, Las Vegas, for Appellants.

Tamer B. Botros and Marc C. Gordon, Las Vegas, for Respondents.

BEFORE THE COURT EN BANC.

OPINION

By the Court, CHERRY, J.:

Appellant taxicab drivers brought an action in the district court claiming damages for unpaid wages pursuant to Article 15, Section 16 of the Nevada Constitution, a constitutional amendment that revised Nevada's then-statutory minimum wage scheme (the Minimum Wage Amendment). The district court held that the Minimum Wage Amendment did not entirely replace the existing statutory minimum wage scheme under NRS 608.250, which in subsection 2 excepts taxicab drivers from its minimum wage provisions. We hold that the district court erred because the text of the Minimum Wage Amendment, by clearly setting out some exceptions to the minimum wage law and not others, supplants the exceptions listed in NRS 608.250(2). Accordingly, we reverse the district court's dismissal order and remand for further proceedings on appellants' minimum wage claims.

FACTS AND PROCEDURAL HISTORY

Appellants Christopher Thomas and Christopher Craig brought a class action against respondent taxicab companies, arguing that they and similarly situated taxicab drivers had not been paid pursuant to constitutional minimum wage requirements during the course of their employment. The complaint was based on the Minimum Wage Amendment, which was proposed by initiative petition and approved and ratified by the voters in 2004 and 2006, and which raised the state minimum wage to a rate higher than the minimum imposed in Nevada by the Labor Commissioner under NRS 608.250. SeeNev. Const. art. 15, § 16. The taxicab companies moved to dismiss the complaint pursuant to NRCP 12(b)(5), arguing that the Minimum Wage Amendment did not eliminate the statutory exception for taxicab drivers under NRS 608.250(2)(e). Following a hearing, the district court concluded that the Minimum Wage Amendment did not repeal NRS 608.250 and that the statutory exceptions could be harmonized with the constitutional amendment. Accordingly, because NRS 608.250(2)(e) expressly excludes taxicab drivers from Nevada's minimum wage statutes, the district court granted the taxicab companies' motion to dismiss the complaint. Appellants now bring this appeal.

DISCUSSION

An order granting an NRCP 12(b)(5) motion to dismiss “is subject to a rigorous standard of review on appeal.” Buzz Stew, L.L.C. v. City of N. Las Vegas, 124 Nev. 224, 227–28, 181 P.3d 670, 672 (2008) (quotations omitted). “This court presumes all factual allegations in the complaint are true and draws all inferences in favor of the plaintiff.... We review all legal conclusions de novo.” Stubbs v. Strickland, 129 Nev. ––––, ––––, 297 P.3d 326, 329 (2013).

The issue on appeal is a purely legal one: Does the Minimum Wage Amendment to the Nevada Constitution, Article 15, Section 16, override the exception for taxicab drivers provided in Nevada's minimum wage statute, NRS 608.250(2)(e)? The Amendment imposes a mandatory minimum wage pertaining to all employees, who are defined for purposes of the Amendment as any persons who are employed by an employer, except for those employees under the age of 18, employees employed by nonprofits for after-school or summer work, and trainees working for no longer than 90 days. Nev. Const. art. 15, § 16(C).¹ In contrast, NRS 608.250(2), which was enacted prior to the Minimum Wage Amendment, excludes six classes of employees from its minimum wage mandate, including taxicab drivers. Appellants, as taxicab drivers excluded from coverage by NRS 608.250, base their claim for relief on the Minimum Wage Amendment. Respondents, however, argue that the Minimum Wage Amendment merely raised the amount of the wage and that it did not replace Nevada's statutory exceptions to the wage requirements.

It is fundamental to our federal, constitutional system of government that a state legislature “has not the power to enact any law conflicting with the federal constitution, the laws of congress, or the constitution of its particular State.” State v. Rhodes, 3 Nev. 240, 250 (1867). “The Nevada Constitution is the ‘supreme law of the state,’ which ‘control[s] over any conflicting statutory provisions.’ ” Clean Water Coal. v. The M Resort, L.L.C., 127 Nev. ––––, ––––, 255 P.3d 247, 253 (2011) (alteration in original) (quoting Goldman v. Bryan, 106 Nev. 30, 37, 787 P.2d 372, 377 (1990)). We will construe statutes, “if reasonably possible, so as to be in harmony with the constitution.” State v. Glusman, 98 Nev. 412, 419, 651 P.2d 639, 644 (1982). But when a statute “is irreconcilably repugnant” to a constitutional amendment, the statute is deemed to have been impliedly repealed by the amendment. Mengelkamp v. List, 88 Nev. 542, 545–46, 501 P.2d 1032, 1034 (1972). The presumption is against implied repeal unless the enactment conflicts with existing law to the extent that both cannot logically coexist. See W. Realty Co. v. City of Reno, 63 Nev. 330, 344, 172 P.2d 158, 165 (1946).

Respondents urge us to reconcile the Minimum Wage Amendment with NRS 608.250(2) by reading the Amendment as supplementing the statutory scheme, increasing the wage within the scheme but not adjusting the scheme as a whole. The district court likewise found that there was no explicit conflict between the statutory exceptions and the Minimum Wage Amendment's definition of “employee” and, therefore, that the Minimum Wage Amendment did not impliedly repeal the NRS 608.250(2) exceptions.

In our view, the district court's and respondents' reading of the Minimum Wage Amendment as allowing the Legislature to provide for additional exceptions to Nevada's constitutional minimum wage disregards the canon of construction “ ‘expressio unius est exclusio alterius,’ the expression of one thing is the exclusion of another.” Galloway v. Truesdell, 83 Nev. 13, 26, 422 P.2d 237, 246 (1967). The Minimum Wage Amendment expressly and broadly defines employee, exempting only certain groups: “ ‘employee’ means any person who is employed [by an individual or entity that may employ individuals or enter into contracts of employment] but does not include an employee who is under eighteen (18) years of age, employed by a nonprofit organization for after school or summer employment or as a trainee for a period not longer than ninety (90) days.” Nev. Const. art. 15, § 16(C). Following the expressio unius canon, the text necessarily implies that all employees not exempted by the Amendment, including taxicab drivers, must be paid the minimum wage set out in the Amendment. The Amendment's broad definition of employee and very specific exemptions necessarily and directly conflict with the legislative exception for taxicab drivers established by NRS 608.250(2)(e).² Therefore, the two are “irreconcilably repugnant,” Mengelkamp, 88 Nev. at 546, 501 P.2d at 1034, such that “both cannot stand,” W. Realty Co., 63 Nev. at 344, 172 P.2d at 165, and the statute is impliedly repealed by the constitutional amendment.

An alternative construction that would attempt to make the Minimum Wage Amendment compatible with NRS 608.250, despite the plain language of the Amendment, would run afoul of the principle of constitutional supremacy. A “constitutional amendment, adopted subsequent to the enactment of the statute relied on by counsel for petitioner, is controlling” over the statute that addresses the same issue. State v. Hallock, 16 Nev. 373, 378 (1882). Statutes are construed to accord with constitutions, not vice versa. Foley v. Kennedy, 110 Nev. 1295, 1300, 885 P.2d 583, 586 (1994). “Accepting respondents' position ‘would require the untenable ruling that constitutional provisions are to be interpreted so as to be in harmony with the statutes enacted pursuant thereto; or that the constitution is presumed to be legal and will be upheld unless in conflict with the provisions of a statute.’ ” Strickland v. Waymire, 126 Nev. ––––, ––––, 235 P.3d 605, 613 (2010) (quoting Foley, 110 Nev. at 1300–01, 885 P.2d at 586). If the Legislature could change the Constitution by ordinary enactment, “no longer would the Constitution be ‘superior paramount law, unchangeable by ordinary means.’ It would be ‘on a level with ordinary legislative acts, and, like other acts, ... alterable when the legislature shall please to alter it.’ ” City of Boerne v. Flores, 521 U.S. 507, 529, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (alteration in original) (quoting Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177, 2 L.Ed. 60 (1803)). In this case, the principle of constitutional supremacy prevents the Nevada Legislature from creating exceptions to the rights and privileges protected by Nevada's Constitution.

Respondents also argue that, despite the intent expressed by the text of the Amendment, the voters actually intended to merely raise the minimum wage, not to create a new minimum wage scheme. But respondents do not adequately explain their basis for deriving such intent. It would be impossible, for instance, to identify and query every Nevadan who voted in favor of the provision—and it is not even clear that such a survey would reveal the true intentions of those voters.

Moreover, our recent precedents have established that we consider first and foremost the original public understanding of constitutional provisions, not some abstract purpose underlying them. “The goal of constitutional interpretation is ‘to determine the public understanding of a legal text’ leading up to and ‘in the period after...