Massachusetts Democrats continue to resist 72% voter approved legislative audit

By Colin A. Young

The top House and Senate Democrats were hot Monday about Auditor Diana DiZoglio’s attempts to audit the Legislature, but both suggested they have no interest in asking the Supreme Judicial Court to weigh in on their longstanding constitutional concerns.

DiZoglio, a Democrat who previously served in both the House and Senate, has been at loggerheads with House Speaker Ronald Mariano and Senate President Karen Spilka for months, following the overwhelming passage in November of a voter law that gave the state auditor the power to audit the Legislature.

DiZoglio says voters gave her a mandate to bring sunlight to the House and Senate, but Mariano and Spilka have contended that the audit could violate separation of powers principles.

“The question really is, is it beyond the scope of the Constitution of the commonwealth? We need that to be settled before anything happens,” Mariano told reporters Monday after meeting privately with Spilka, Gov. Maura Healey and Lt. Gov. Kim Driscoll.

One way to settle the question of constitutionality — and one directly available to the House or Senate — is to seek an advisory opinion from the state’s highest court, a step that can be taken through the adoption of an order. The Constitution states that the House and Senate “shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions.”

But when asked about that idea Monday, both Mariano and Spilka suggested it is not on their to-do lists.

“You have to understand, why would we ask for an opinion from the SJC? Because she’s the one that’s driving the question. She’s the one that campaigned for the question. She was the one out knocking doors for the question. She was the one with the personal investment in the question. Why doesn’t she? Why haven’t you asked her why she hasn’t asked for an opinion from the Supreme Court?” Mariano responded.

After repeating that he thinks DiZoglio should be the one to ask the SJC for an opinion, Mariano deflected when asked if he wants to get to the bottom of the question of constitutionality.

“Things are going fine,” the speaker said. Referencing the financial audits that the House and Senate have performed annually, he added, “We have a professional audit done.”

The House has retained outside legal counsel in anticipation of a possible legal battle related to DiZoglio’s audit push.

Spilka deferred to the ongoing work of a Rules Committee subcommittee of Democrats, which held a “heated” meeting with DiZoglio deputies a month ago and plans this month to call people to testify at a hearing “on the issues of constitutionality, scope, and conflict of interest.” Spilka emphasized Monday that the subcommittee is operating like any legislative committee by holding a hearing and inviting people to share information, “and then we will move forward.”

“I think right now, our approach is to try to have the Senate subcommittee gather information to answer some of those questions that have risen up and been very apparent. We’ve asked the auditor to answer, most of it she has refused to answer. So that’s why we are having the hearing,” Spilka said. “We are following the process that the Legislature follows.”

In a 2012 communication (SJC-11115), the SJC said a relevant “solemn occasion” involves “a ‘serious and unusual exigency,’ when a branch of government, ‘having some action in view, has serious doubts as to their power and authority to take such action, under the Constitution, or under existing statutes.'”

“The settlement of these doubts must be necessary to enable that branch of government, ‘in the exercise of its proper functions, to act legally and intelligently upon the pending question,'” the court said, citing precedents from 1977 and 1889.