Judicial review of any substantive questions, on a theory that delay constitutes decision by default, is prohibited. Atlantic Gulf Stevedores, Inc v Donovan, 274 F.2d 794, 802 (CA 5, 1960); Harris v District of Columbia Rental Housing Comm, 505 A.2d 66, 71 (DC App, 1986); Baldeviso v Thompson, 54 Haw. 132; 504 P.2d 1217 (1972); Note, Judicial Acceleration of the Administrative Process: The Right to Relief from Unduly Protracted Proceedings, 72 Yale L J 574 (1963). Accord: East Jordan Iron Works v Workers' Compensation Appeal Bd, 124 Mich. App. 324; 335 N.W.2d 23 (1983).
Since these rules and regulations are promulgated pursuant to statutory authority [Hawaii Rev.Stat.Sec. 294-37(2) (1976 Replacement)], they have the force and effect of law. See Baldeviso v. Thompson, 54 Haw. 125, 504 P.2d 1217 (1972); State v. Kimball, 54 Haw. 83, 503 P.2d 176 (1972). Regulations Sec. 2-2 lists and defines the minimum required no-fault benefits โ including earnings loss caused by accidental harm โ in virtually the same manner as Hawaii Rev.Stat.Sec. 294-2(10).
Even if this Court were to determine that plaintiff's prayer for relief respecting Count IV should have included a specific request that the mortgage be declared null and void, a trial court can grant relief to which a party is entitled under the evidence adduced, even if the party has not explicitly demanded such relief in its pleadings. Fed.R.Civ.P. 54(c). See also Roach Aircraft, Inc. v. Sable, 513 P.2d 244, 247 (Colo.App.1973); Baldeviso v. Thompson, 54 Hawaii 125, 504 P.2d 1217, 1223 (1972); England v. Valley National Bank of Phoenix, 94 Ariz. 267, 383 P.2d 183, 184 (1963). Based on the foregoing, this Court finds that Paragraph (2) of the Judgment declaring the IMI mortgage null and void should not be amended, and plaintiff should be permitted to have the mortgage expunged forthwith.
Id. at 354, 402 P.2d at 687. Essentially the same rule has been adopted in other cases decided by the Hawaii Supreme Court. See, for example, Baldeviso v. Thompson, 54 Haw. 125, 504 P.2d 1217 (1972); as well as the courts of other jurisdictions. See Gentry v. Smith, 487 F.2d 571 (5th Cir. 1973); Glen Cove Marina, Inc. v. Vessel Little Jennie, 269 F. Supp. 877 (E.D.N.Y. 1967).
relief for grade placement of disabled children if he had requested an impartial due process hearing; however, complainant did not pursue such an avenue, thus the source of the "`futility' [was] not the administrative process but, rather, the party who was seeking relief"); Hokama v. Univ. of Hawai'i, 92 Hawai'i 268, 273, 990 P.2d 1150, 1155 (1999) (recognizing that although "[a]n aggrieved party need not exhaust administrative remedies where no effective remedies exist," in this case it was "unclear from the language of the agreement whether the damages sought by [complainant] are available under the [University of Hawai'i] grievance procedure."); Waugh v. Univ. of Hawai'i 63 Haw. 117, 129, 621 P.2d 957, 967 (1980) (noting that the appellant was not required to follow University administrative procedures because there were no established internal procedures for handling claims such as his and the ad hoc procedures created were not binding on the University and the Board of Regents); Baldeviso v. Thompson, 54 Haw. 125, 132, 504 P.2d 1217, 1222 (1972) (concluding that because the reasonableness of the 30-day time limit in the welfare application process must be evaluated according to the amount of resources allocated to accomplish the task, as well as other surrounding circumstances, the claims of the appellants are of a nature that does not require exhaustion of administrative remedies); Winslow v. State, 2 Haw. App. 50, 56, 625 P.2d 1046, 1051 (1981) (opining that in the enactment of the contract's grievance procedures, it was not contemplated that the employee would utilize the procedures in a grievance against the union itself, and no provisions were incorporated into the contract to address the event; thus, the appellant could not be required to exhaust contractual remedies in an action against the union where no such remedies actually existed). I note that although the majority maintains that several of the preceding cases are distinguishable, it fails to provide any discussion or argument to support this contention.
Administrative rules, like statutes, have the force and effect of law. State v. Kirn, 70 Haw. 206, 208, 767 P.2d 1238, 1239-40 (1989) (citing Abramson v. Board of Regents, University of Hawaii, 56 Haw. 680, 54 P.2d 253 (1976), and Aguilar v. Hawaii Hous. Auth., 55 Haw. 478, 522 P.2d 1255 (1974)); Beldeviso v. Thompson, 54 Haw. 125, 129, 504 P.2d 1217, 1221 (1972) (citingState v. Kimball, 54 Haw. 83, 503 P.2d 176 (1972)). Kotis has not alleged any infirmity in the promulgation of HAR ยง 11-175-45(b)(3).
Gonsalves v. First Ins. Co., 55 Haw. 155, 516 P.2d 720 (1973); Baldeviso v. Thompson, 54 Haw. 125, 504 P.2d 1217 (1972); Del Rosario v. Kohanuinui, 52 Haw. 583, 483 P.2d 181 (1971). We established in Del Rosario, supra, that when the court considers matters outside the pleadings, the motion to dismiss becomes one for summary judgment.
Two Hawaii Supreme Court cases discuss discriminatory administration of the law in other contexts. See Baldeviso v. Thompson, 54 Haw. 125, 504 P.2d 1217 (1972) (welfare applications); In re Hawaiian Land Co., 53 Haw. 45, 487 P.2d 1070 (1971) (tax assessment). [T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.
Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: . . . (6) failure to state a claim upon which relief can be granted. . . . If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, . . . . The controlling question before this court is whether the pleadings, affidavits and any other matters on record, if any, show that there is no genuine issue as to any material fact, Baldeviso v. Thompson, 54 Haw. 125, 127-28, 504 P.2d 1217, 1220 (1972), and whether the appellees are entitled to judgment as a matter of law. Gum v. Nakamura, 57 Haw. 39, 42, 549 P.2d 471, 474 (1976).
In In re Terminal Transportation, Inc., 54 Haw. 134, 504 P.2d 1214 (1972), we held that the Commission's failure to rule on each of the findings proposed by the competing carriers as required by HRS ยง 91-12 invalidated the Commission's actions. We said at 54 Haw. 139, 504 P.2d 1217: [T]he agency must make its findings reasonably clear.