The Massachusetts Supreme Judicial Court. (Photo by Jennifer Smith)

IN NOVEMBER 2024, over 70 percent of Massachusetts voters endorsed state Auditor Diana DiZoglio’s view that the responsibilities of her job extend to auditing the state Legislature.  It seems impossible that less than two years later, she could be denied the ability to have an attorney advocate for her position in a court of law, but that’s exactly what Attorney General Andrea Campbell is attempting to do. 

The Legislature’s resistance to being audited raises important constitutional questions about the separation of powers.  It’s one thing for Campbell to take lawmakers’ position in the matter and for her office to represent them; it’s another for her to take the extreme view that the auditor cannot hire her own attorney.   

The Supreme Judicial Court should intervene on DiZoglio’s behalf. 

Since the auditor’s overwhelming win in the 2024 ballot initiative, the Legislature has rebuffed every attempt by her office to conduct an audit. DiZoglios is not looking to audit the way in which the Legislature conducts its constitutional duties. While a 2023 audit request, prior to the ballot question, was for both a financial and performance audit, this one is limited to financial issues. 

Nor is DiZoglio trying to conduct an audit that is outside the scope spelled out by the ballot initiative. The state auditor routinely conducts audits to ensure that state agencies spend public money for the purposes legislators intended; here she simply seeks to apply the same scrutiny to the public dollars the Legislature appropriates to fund its own operations.

After a frustrating year in which the attorney general threw up roadblock after roadblock, DiZoglio recently filed a lawsuit asking the SJC to order the Legislature to allow her office to conduct an audit.. As part of that case, DiZoglio made the commonsense request that she be allowed to hire an independent attorney, not affiliated with the attorney general’s office, to represent her in this dispute. 

Last week, the attorney general intervened in the lawsuit and moved to strike the complaint in an unusual effort to derail the case before it gets started. DiZoglio then requested additional time to respond to the motion to strike. Without approval to hire experienced litigation counsel, the auditor would be unable to provide an appropriate response to the case, never mind litigate the merits of the case.

The attorney general’s position is that she alone has the authority to file lawsuits on behalf of any state official, and she alone shall, in her words, “make decisions and take positions in litigation, irrespective of the demands of individual state officials or agencies.”  Also, the attorney general argues she alone has the authority to act as the attorney for state officials involved in litigation, effectively giving her veto power over what gets to the courts. 

A party to any lawsuit, no matter how small, has the right to be represented by an attorney of their choice.  This rule should be applied with even greater vigor to a lawsuit that raises important and complex constitutional issues such as the proper scope of the separation of powers.  

In many such cases, the attorney general would immediately appoint a special attorney general to ensure that all positions are presented to the court.  But here, in perhaps the most important case to reach the court on the auditor’s power to examine how public dollars are being spent, the attorney general has blocked the auditor’s efforts to litigate the issue. 

There is a solution under our Massachusetts Constitution. The Supreme Judicial Court should order the appointment of a special attorney general to represent the state auditor so all sides of this important issue are properly represented. Indeed, only with full and fair representation can the SJC do its job. 

Robert Cordy is a retired associate justice of the Massachusetts Supreme Judicial Court.