Thomas v. Nev. Yellow Cab Corp. , 2014 NV 52 ( 2014 )

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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