As fight to audit Massachusetts Legislature continues, AG Campbell concerned audit suit outcome could undermine attorney general’s power

BY COLIN YOUNG

BOSTON…..If the Supreme Judicial Court allows Auditor Diana DiZoglio’s lawsuit against the Legislature to proceed, it will encourage other state officials to seek similar “self-help” in the courts and dramatically undermine the role of the attorney general as manager of the state’s legal strategy, AG Andrea Campbell’s office argued this week in a court filing.

The SJC is due in May to hear arguments related to the long-running dispute over DiZoglio’s attempts to conduct an audit of the Legislature as authorized by voters at the 2024 ballot. DiZoglio, who has been upset that Campbell has not agreed to represent her in a suit against the Legislature, sued legislative leaders herself for their noncompliance. Then Campbell stepped in to defend the lawmakers and attempt to strike the auditor’s suit, arguing DiZoglio had no standing to bring it in the first place.

The May 6 SJC hearing is focused on whether the courts should grant Campbell’s motion to strike the lawsuit that DiZoglio filed against House Speaker Ron Mariano, Senate President Karen Spilka, and the House and Senate clerks.

“If the [auditor’s office’s] gambit is countenanced, the resulting incentives will regularly ensnare the Judiciary in the type of intragovernmental, intramural disputes that presently are resolved out of court. There would be little incentive for a state official to engage with the [attorney general’s office], substantially eliminating the ability of the AGO to broker agreement short of litigation. A state official could, at any time, file suit and force the expenditure of judicial and taxpayer resources to litigate whether the suit is proper or should be stricken,” Campbell’s office wrote. “If the Attorney General were not a party to such a suit, her present control over state litigation … would be reduced to monitoring dockets for unauthorized filings and determining whether to expend resources to attempt to strike those filings. Where such actions involved multiple state government parties, the Attorney General would need to allocate counsel among them, at significant cost to the Commonwealth. These are the very circumstances [the state law that designates the AG as legal representative for state offices] was enacted to prevent, as this Court has repeatedly recognized.”

DiZoglio has argued that she should be able to obtain outside counsel, particularly since the attorney general has not agreed to represent her and has instead appeared on behalf of legislative leaders. Campbell maintains that her office hasn’t received sufficient information from DiZoglio to make the decision about representing her in a suit against the Legislature, but she insists she is still open to the possibility. 

Top lawmakers continue to oppose the audit over concerns that the law may be unconstitutional. The Senate in March voted to ask the Supreme Judicial Court for an advisory opinion on the constitutionality of proposed ballot laws governing legislative stipends and the application of the public records law to the Legislature and the governor, but brushed aside calls by Senate Republicans who say an advisory opinion should be sought from the high court on the constitutionality of the 2024 audit law. 

DiZoglio’s brief is due to the SJC by April 22. The court is also soliciting amicus briefs in the case, and received one in support of DiZoglio’s position from Democratic Rep. Alan Silvia of Fall River.

Siliva wrote that state law gives the attorney general authority to represent the state and its officers in litigation, but “does not confer unchecked power to prevent a constitutional officer from vindicating her statutory duties.”

“Here, the Attorney General has: Declined or failed to timely authorize representation for the State Auditor; and simultaneously moved to strike the Auditor’s complaint for lack of such authorization. This creates a self-reinforcing barrier that effectively extinguishes the Auditor’s ability to act,” Silvia wrote in his brief.

Colin Young is the deputy editor for State House News Service and State Affairs Pro Massachusetts. Reach him at colin.young@statehousenews.com.