No. 61681 

FILED 

JUN 2 6 2014 

TNRAICIAEsKeLli NDEEMet r 

CLE 

BY 

HiLr DEP 

130 Nev., Advance Opinion 52. 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

CHRISTOPHER THOMAS AND 

CHRISTOPHER CRAIG, 

INDIVIDUALLY AND ON BEHALF OF 

OTHERS SIMILARLY SITUATED, 

Appellants, 

vs. 

NEVADA YELLOW CAB 

CORPORATION; NEVADA CHECKER 

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). 1In 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). 2Therefore, 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. 

2Nevada'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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We concur: 

J. 

Pickering 

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. 

Hardesty 

J. 

J. 

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. 2Similarly, 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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We concur: 

T./ 

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 

Gibbons 

C.#4, 

, C.J. 

, J. 

Saitta 

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