The United States and Florida Constitutions give everybody the rights to due process under law and a jury trial. These fundamental rights were important to the founders of this country. Yet, some Florida legislators fail to respect and observe these rights when it comes to making special laws which protect the insurance companies who fill their campaign coffers.
Jean Niven successfully argued that the sinkhole neutral evaluation process is unconstitutional. The Court’s ruling is clear:
Article II, section 3, of the Florida Constitution divides our state government into three branches and expressly prohibits one branch from exercising the powers of the other two branches. No branch may encroach upon the powers of another, and no branch may delegate its constitutionally assigned power to another branch….As such, it would be an invasion of the authority of the Judicial Branch for the Legislature to pass a law that allows the Executive Branch to interfere with the final judicial determination in a case….
In cases involving sinkhole litigation, the Legislature has delegated to the Department of Financial Services, a part of the Executive Branch of government, the authority to act as (1) the judge by requiring the automatic admission of the Neutral Evaluator’s report into evidence without considering its relevancy, credibility, authentication, or other evidentiary concerns and (2) trier of fact in determining whether or not sinkhole activity exists beneath a structure and determining the proper remediation. Only the Florida Supreme Court has the power to adopt rules for the practice and procedure in all the courts of the state….While the statute indicates that the Neutral Evaluation is non-binding, the statute still violates Plaintiffs’ due process rights because the statute allows the Department of Financial Services to adopt its own procedural rules….Permitting a Neutral Evaluator to give an opinion which is admissible in court without any formal evidentiary rules or procedures, particularly with no right to cross-examination, constitutes a violation of the Plaintiffs’ due process, under Article I, section 9 of the Florida Constitution.
A complete copy of the Order is here.
