House GOP lends support to auditor’s SJC argument

BOSTON — House Republicans have rallied behind Auditor Diana DiZoglio’s lawsuit to seek independent counsel and advance a stalled audit of the Legislature, asking the state’s highest court to deny Attorney General Andrea Campbell’s motion to toss the case.

In an amicus brief, the House GOP caucus urged the Supreme Judicial Court to not “arbitrarily” deprive DiZoglio of access to representation and accused Campbell of trapping the auditor in a “procedural dead end.” DiZoglio, a Democrat, served in the House from 2013 until 2019.

In her ongoing quest to crack open the books of the Legislature under a 2024 voter law, DiZoglio sued top lawmakers in February as she simultaneously sought to secure the appointment of a special assistant attorney general (SAAG) after unsuccessfully calling on Campbell to represent her office. Days later, Campbell filed a motion to strike DiZoglio’s complaint and framed the AG’s office as the only legal “gatekeeper” for intergovernmental disputes that may need court intervention.

Campbell’s motion “creates an untenable roadblock,” House Republicans said in their brief filed last week.

“By refusing to either grant or deny the Auditor’s request for independent counsel, and simultaneously moving to throw out the Auditor’s self-filed complaint for lacking her authorization, the Attorney General is effectively locking the courthouse doors,” House Republicans wrote.

DiZoglio faces a Wednesday deadline to submit a brief to the SJC, with a hearing slated for May 6 on whether the court should approve Campbell’s motion.

“Our brief will outline how the Attorney General has not only refused to assist our office with enforcement of the legislative audit for more than a year, but she’s also refused to allow the Auditor to hire outside counsel to go to court to seek to enforce this voter-mandated law, while herself representing the Speaker and Senate President against the public interest,” DiZoglio’s office said in a statement Tuesday to the News Service. 

Attorney Shannon Liss-Riordan, who ran against Campbell for AG, will deliver oral arguments on behalf of DiZoglio next month, the auditor’s office said. 

“Denying due process and the right to an attorney is a violation of the Constitution and the Auditor intends to take this fight to the highest court in the nation if the SJC denies her the right to an attorney to defend the public interest,” DiZoglio’s office said.

Campbell has repeatedly said DiZoglio has not answered questions about the scope of her audit, which DiZoglio has refuted. Should DiZoglio prevail in her legal strategy before the SJC, Campbell has said other state officials will be motivated to turn to the courts for “self-help” and undermine the role of the AG’s office.

“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 said in a court filing earlier this month. “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.”

House Republicans said dismissing the case now — before the SJC could delve into meatier questions about constitutional separation of powers — “would prematurely extinguish the substantive legal questions before they are genuinely heard.”

The lawmakers argued Campbell’s “discretion is not absolute,” as they invoked legal precedents for allowing outside counsel when the AG is “unavailable,” and accused Campbell of not following the process for appointing a SAAG during policy disagreements. Republicans also argued that Campbell has a “glaring” conflict of interest by intervening in the case and now representing the top Beacon Hill leaders that DiZoglio sued.

In its amicus brief, the Pioneer New England Legal Foundation similarly pointed to nearly 200 years of statutory law allowing for the courts to appoint substitute counsel when the AG is “absent.”

“In the modern age, ‘absent’ doesn’t mean that an Assistant Attorney General couldn’t make it through the snow to get to court on time; any sensical reading of the statutory text means the Attorney General is ‘unavailable,’” the foundation wrote. “Here, the Attorney General has an ethical conflict under the rules of professional conduct … She is thus constructively ‘absent,’ and the Court should authorize alternative counsel.”

With a raft of potential ballot measures going before voters this fall, House Republicans highlighted their broader concern that future voter laws could be undermined depending on the fate of the audit law.

“Allowing the Attorney General to dismiss this suit at the threshold sends a dangerous message to the public: that a mandate passed by the voters can be rendered meaningless by the unilateral gatekeeping of a single executive officer,” the House Republicans wrote.

The minority caucus is not alone among the case’s amici. Democratic Rep. Alan Silvia of Fall River filed a brief of his own on April 2 arguing 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.

Alison Kuznitz is a reporter for State House News Service and State Affairs Pro Massachusetts. Reach her at akuznitz@stateaffairs.com.