State Auditor Diana DiZoglio, surrounded by past audits by her office of the Legislature or legislative committees. (Photo by Bruce Mohl)

AT LONG LAST, the state auditor, Diana DiZoglio, has sued legislative leaders in her effort to audit the General Court pursuant to the ballot question that Massachusetts voters approved in 2024. She filed the suit earlier this month before a single justice of the Supreme Judicial Court seeking an order compelling the Legislature’s cooperation and the appointment of a lawyer of her choosing to represent her office in these proceedings.

The request that the court allow her to find her own counsel results from her public frustration with the unwillingness of Attorney General Andrea Campbell to bring suit against the Legislature to enforce the audit law.

For her part, the attorney general has consistently maintained that the auditor has not supplied her office with the specific information necessary to proceed in court. Notably, the attorney general has not formally declined to represent the auditor in such a suit. But she has responded to the auditor’s suit by moving to strike the complaint. The issue of who may represent the auditor in an intragovernmental dispute may well stop this litigation before it really begins, as the request itself implicates serious separation of powers concerns.

By statute, the attorney general has both the authority and responsibility to represent the Commonwealth and its various officers, agencies, and departments. As the Supreme Judicial Court put it in a 1975 decision, Secretary of Administration and Finance v. Attorney General, the attorney general is the state’s “chief law officer” and accordingly “has control over the conduct of litigation involving the Commonwealth.”

The Secretary of Administration and Finance case involved the question of whether the attorney general was required to take particular actions when representing the secretary in a civil case. The answer was no.

As the court explained, when an officer, agency, or department seeks a particular course of action in the context of litigation, the attorney general’s responsibility is to “consider the ramifications … on the interests of the Commonwealth and the public generally.” The failure to do so, the court continued, “would be an abdication of official responsibility.”

Indeed, the court went further, suggesting that, by “consolidating all the legal business of the Commonwealth in one office, the Legislature empowered, and perhaps required, the Attorney General to set a unified and consistent legal policy for the Commonwealth.” This legislative end would be subverted if particular officers, or agency or department heads, could dictate to the attorney general when and how litigation should proceed. It follows that the attorney general enjoys substantial discretion in determining when and how to initiate litigation.

Auditor DiZoglio is not unaware of the attorney general’s unique statutory role as the “chief law officer” for Massachusetts; at the end of her complaint, she alleges that, in “effectively declining to represent” her office and declining to “appoint a Special Assistant Attorney General,” Campbell “has acted arbitrarily and capriciously, or scandalously.” Here, she seeks to rely upon an exception to the attorney general’s otherwise exclusive control over litigation involving the Commonwealth.

In the Secretary of Administration and Finance case, the SJC recognized that, while those individuals displeased with an attorney general’s litigation determinations must resort “to the political arena,” still no attorney general can act “arbitrarily and capriciously or scandalously.”

The court has never had occasion to further define these terms, but it did indicate in a footnote in Secretary of Administration and Finance that the attorney general should refuse to represent an agency or department of the Commonwealth when either “there is no merit” to the action or “the interests of a consistent legal policy for the Commonwealth are at stake.”

Based upon the allegations in the auditor’s complaint, there is no indication that Attorney General Campbell has refused to represent the auditor and her office—much less that she has determined that such an action would have no merit. The attorney general may believe, based upon the information the auditor has provided her office thus far, that there is no case to be made at this time. Regardless, unless and until she formally announces that her office will not represent the auditor in a suit to compel the Legislature to cooperate in an audit, the single justice is likely to be wary of allowing the auditor to find and retain her own counsel.

In light of the auditor’s allegations, it may be tempting to conclude that the attorney general has forsaken her statutory responsibility. But, were the court to grant the auditor the relief she seeks it might well incentivize other officers, agencies, and departments of the Commonwealth to try to bypass the statutory requirement that the attorney general represent them in litigation.

A wave of petitions to the courts requesting such relief would effectively shift the responsibility for coordinating litigation involving the Commonwealth from the attorney general—who was long ago assigned this responsibility by the Legislature—to the courts. Such a shift would undermine both the public interest in the development of consistent legal policy for the Commonwealth and the accountability for such policy that inheres in the political process.

Absent extraordinary circumstances, it is not for unelected judges to decide when and how litigation should be pursued in the name of the Commonwealth’s citizens.

Of course, this analysis does not address a lingering question: What specific information does the attorney general need before she will bring suit against the Legislature on behalf of the auditor? It is not difficult to imagine that the attorney general is looking to locate the separation of powers line that an audit cannot cross. While the auditor has downplayed this as a hypothetical question about future audits and beyond the scope of her present lawsuit, it is almost certainly a question to which a court reasonably would expect an answer—and, therefore, an argument that the attorney general must consider.

DiZoglio likely has both simple and complicated reasons for ducking this issue. The simple reason is that she wants the freedom to pursue a legislative audit as far as she can. The attorney general, on the other hand, must keep an eye on the possibility of repeated litigation between branches of government on her watch—litigation that may threaten the credibility of her office and, indeed, state government in general.  

The complicated reason the auditor seems unwilling to answer the question is that she really may not be interested in a full and fair judicial test of her legislative audit authority because the voter-approved law would be held unconstitutional, thus taking from her the populist, anti-establishment rhetoric that has become her brand.

The auditor appears to be walking a tightrope. If she is transparent about what she seeks to do with the audit power, the Supreme Judicial Court is likely to rule against her. If she answers the attorney general’s questions about the constitutional limits on her legislative audit authority honestly, she could well undermine both her legal argument and her political case against the Legislature.

She may well believe that, if she can get a narrow slice of her voter-enacted audit authority past the SJC, it would enhance her political leverage over the Legislature. On the other hand, if the SJC throws out or rules against her in the case she just filed, she may be able to continue her public crusade against Beacon Hill, and add the SJC to her list of the State House villains—a list that at this writing includes the Legislature, the attorney general, and the governor—preventing her from fulfilling her campaign promise to bring transparency to Beacon Hill.

Of course, if, at the end of the day, it turns out that auditing the Legislature was unconstitutional all along—as legislative leaders have claimed—then the auditor would no longer be able to blame her State House villains for preventing her from delivering what she has so long promised.

Lawrence Friedman teaches constitutional law at New England Law | Boston and is the co-author of The Massachusetts State Constitution, published by Oxford University Press.  Jerold Duquette is a professor of political science at Central Connecticut State University, contributor at MassPoliticsProfs.org, and co-editor of The Politics of Massachusetts Exceptionalism: Reputation Meets Reality.