                                                    130 Nev., Advance Opinion 52.
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  CHRISTOPHER THOMAS AND                               No. 61681
                  CHRISTOPHER CRAIG,
                  INDIVIDUALLY AND ON BEHALF OF
                  OTHERS SIMILARLY SITUATED,
                                                                            FILED
                  Appellants,                                                 JUN 2 6 2014
                  vs.
                  NEVADA YELLOW CAB                                     CLE
                                                                                       NDEEMet
                                                                                  EsKeLli
                                                                            TNRAICIA             r
                  CORPORATION; NEVADA CHECKER                          BY
                                                                              HiLr DEP
                  CAB CORPORATION; AND NEVADA
                  STAR CAB CORPORATION,
                  Respondents.


                              Appeal from a district court order dismissing a complaint in a
                  minimum wage matter. Eighth Judicial District Court, Clark County;
                  Ronald J. Israel, Judge.
                              Reversed and remanded.


                  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.




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                                                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.        See Nev. 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
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                 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




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                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


                      'Nevada Constitution, Article 15, Section 16 reads, in relevant part:

                            Payment of minimum compensation to
                            employees.
                                   A. Each employer shall pay a wage to each
                            employee of not less than the hourly rates set
                            forth in this section.


                                  C. As used in this section, "employee"
                            means any person who is employed by an
                            employer as defined herein 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.
                            "Employer" means any individual, proprietorship,
                            partnership, joint venture, corporation, limited
                            liability company, trust, association, or other
                            entity that may employ individuals or enter into
                            contracts of employment.

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                      (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

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                 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 schoolS 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.




                       2   Nevada's Attorney General reached the same conclusion in 2005:

                                [TI he people, by acting to amend the minimum
                                wage coverage and failing to include the statutory
                                exclusions in the proposed amendment, are
                                presumed to have intended the repeal of the
                                existing exclusions so that the new minimum
                                wage would be paid to all who meet its definition
                                of "employee." Accordingly, the proposed
                                amendment would effect an implied repeal of the
                                exclusions from minimum wage coverage at NRS
                                608.250(2).
                 05-04 Op. Att'y Gen, 12, 18 (2005).

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                             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 (1997)
                 (alteration in original) (quoting Marbury v. Madison, 5 U.S. 137, 177
                 (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.

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                 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 its
                 enactment or ratification?" Waymire, 126 Nev. at , 235 P.3d at 608-09
                 (quoting 6 Ronald D. Rotunda & John E. Nowak,                   Treatise on
                 Constitutional Law § 23.32 (4th ed. 2008 & Supp. 2010)). To seek the
                 intent of the provision's drafters or to attempt to aggregate the intentions
                 of Nevada's voters into some abstract general purpose underlying the
                 Amendment, contrary to the intent expressed by the provision's clear
                 textual meaning, is not the proper way to perform constitutional
                 interpretation. See generally District of Columbia v. Heller, 554 U.S. 570
                 (2008) (interpreting the Second Amendment by seeking the original public
                 understanding of the text, with majority and dissent disagreeing on
                 content of public understanding). "The issue ought to be not what the
                 legislature," or, in this case, the voting public, "meant to say, but what it
                 succeeded in saying." Lon L. Fuller, Anatomy of the Law 18 (Greenwood
                 Press 1976).




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                             The text of the Minimum Wage Amendment, by enumerating
                specific exceptions that do not include taxicab drivers, supersedes and
                supplants the taxicab driver exception set out in NRS 608.250(2). We
                accordingly reverse the district court's dismissal order and remand for
                further proceedings consistent with this opinion.



                                                                               J.

                We concur:


                                               J.
                Pickering


                                                J.
                Hardesty


                                                J.
                Douglas




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                  PARRAGUIRRE, J., with whom GIBBONS, C.J., and SAITTA, J., agree,
                  dissenting:

                                I would affirm the district court's order dismissing Thomas's
                  complaint because the Amendment was only intended to increase the
                  minimum wage amount.
                                We presume that a statute is constitutional, and a party who
                  challenges the constitutionality of a statute must clearly show its
                  invalidity. Martinez v. Maruszczak, 123 Nev. 433, 448-49, 168 P.3d 720,
                  730 (2007). Moreover, implied repeal is disfavored in Nevada.       Presson v.
                  Presson, 38 Nev. 203, 208, 147 P. 1081, 1082 (1915). "'Where express
                  terms of repeal are not used, the presumption is always against an
                  intention to repeal an earlier statute . . . W. Realty Co. v. City of Reno,
                  63 Nev. 330, 344, 172 P.2d 158, 165 (1946) (quoting Ronnow v. City of Las
                  Vegas, 57 Nev. 332, 365, 65 P.2d 133, 145 (1937)); see also In re Advisory
                  Op. to the Governor, 132 So. 2d 163, 169 (Fla. 1961) ("Implied repeals of
                  statutes by later constitutional provisions [are] not favored and ... in
                  order to produce a repeal by implication the repugnancy between the
                  statute and the Constitution must be obvious or necessary.").
                                We have stated that "the interpretation of a . . . constitutional
                  provision will be harmonized with other statutes." Landreth v. Malik, 127
                  Nev. „ 251 P.3d 163, 166 (2011) (alteration in original) (emphasis
                  added) (quoting We the People Nev. v. Miller, 124 Nev. 874, 881, 192 P.3d
                  1166, 1171 (2008)). We "apply the plain meaning of a statute unless it is
                  ambiguous." Id. A provision is ambiguous if "it is susceptible to two or
                  more reasonable but inconsistent interpretations."      Id. (quoting Miller v.
                  Burk, 124 Nev. 579, 590, 188 P.3d 1112, 1120 (2008)). In order to


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                     interpret an ambiguous constitutional provision, we look to the provision's
                     history and public policy to determine the intended interpretation.   Id.
                                 Because the Amendment and NRS 608.250 both address
                     minimum wage, I would attempt to harmonize these provisions.          See id.
                     Reading NRS 608.250 and the Amendment together, an ambiguity
                     becomes readily apparent. Namely, it is unclear whether the Amendment
                     raises the minimum wage without altering NRS 608.250(2)'s exemptions
                     or whether it impliedly repeals the exemptions, as the majority concludes.
                     Both of these interpretations of the Amendment appear reasonable. As a
                     result, I would conclude that the Amendment is ambiguous and must be
                     interpreted in light of its history and public policy. Landreth, 127 Nev. at
                         251 P.3d at 166.
                                 Since 1965, the Nevada Wage and Hour Law, codified in NRS
                     Chapter 608, has governed employment compensation, wages, and hours
                     for employees in Nevada. NRS 608.250(1) authorizes the Labor
                     Commissioner to "establish by regulation the minimum wage which may
                     be paid to employees in private employment within the State." "Taxicab
                     and limousine drivers" are not entitled to this minimum wage.' NRS
                     608.250(2)(e).
                                 In 2006, the Amendment was ratified by the voters, increasing
                     the state minimum wage. See Nev. Const. art. 15, § 16(A). Although NRS


                            "Casual babysitters" are also exempted from minimum wage
                     entitlement. NRS 608.250(2)(a). Therefore, because the majority
                     concludes that the Amendment impliedly repeals NRS 608.250(2), even
                     casual babysitters will be entitled to minimum wage. This is an absurd
                     result that the Amendment should be interpreted to avoid. See J.E. Dunn
                     Nw., Inc. v. Corus Constr. Venture, L.L.C., 127 Nev. „ 249 P.3d 501,
                     505 (2011).

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                Chapter 608 has been in existence since 1965 and addresses the same
                subject matter as the Amendment, the Amendment does not mention
                these long-standing statutes. We should presume that if the voters
                intended to restructure the entire legislative scheme, they would have
                done so explicitly. CI State Indus. Ins. Sys. v. Woodall, 106 Nev. 653, 657,
                799 P.2d 552, 555 (1990) (stating that if the Legislature intended a
                particular result, it "would have indicated as much in the statutes
                themselves so the judiciary would not be required to divine such a rule out
                of thin air").
                                 Moreover, the provision's title, "Raise the Minimum Wage for
                Working Nevadans," does not hint at any intended alteration of the NRS
                608.250(2) exemptions. Nevada Ballot Questions 2006, Nevada Secretary
                of State, Question No. 6. 2 Similarly, the condensed ballot question only
                asked whether "the Nevada Constitution [should] be amended to raise the
                minimum wage," and made no mention of changing the group of
                employees entitled to minimum wage.             Id.   At the very least, if the
                Amendment was intended to repeal the NRS 608.250(2) exemptions, the
                arguments regarding the Amendment would have mentioned NRS
                Chapter 608, but they do not.        Id. Therefore, I would conclude that the
                Amendment was only intended to raise the minimum wage amount,
                rather than abolish long-standing exemptions from the group of employees
                entitled to minimum wage.
                                 The majority states that the public understanding of the
                Amendment must control our interpretation. Given that the



                      2Available   at hilps-finvsos.gov/Modules/ShowDocumentaspx?documentid=206.

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                Amendment's title, condensed ballot question, and arguments regarding
                the ballot question fail to mention any changes to Nevada law besides
                increasing the minimum wage, there is no basis for the majority's
                conclusion that the public understood that the Amendment would repeal
                the NRS 608.250(2) exemptions. Rather, the public understood that the
                Amendment would only increase the minimum wage.
                             We must presume that implied repeal was not intended and
                the exemptions set forth in NRS 608.250(2) are constitutional.   Martinez,
                123 Nev. at 448-49, 168 P.3d at 730; Presson, 38 Nev. at 208, 147 P. at
                1082. Because the Amendment was neither intended nor understood to do
                more than raiseS the minimum wage amount, I would conclude that these
                presumptions have not been rebutted and would affirm the district court's
                order of dismissal.
                             Accordingly, I dissent.




                                                       Parraguirre


                We concur:


                T./                           ,   C.J.
                Gibbons


                  C.#4,
                Saitta
                                              ,   J.




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