Supreme Court interested in breaking audit law standstill

BOSTON – Justices on the Supreme Judicial Court expressed a clear interest Wednesday in seeing Attorney General Andrea Campbell and Auditor Diana DiZoglio stop “battling each other to exhaustion” and make at least some progress in their long-running dispute over an attempted audit of the Legislature – suggesting the court could play a role in making that happen.

Campbell’s motion to strike the lawsuit that DiZoglio filed this year against House Speaker Ronald Mariano, Senate President Karen Spilka, and the House and Senate clerks was before the high court Wednesday morning. Campbell maintains that she holds the power as “gatekeeper” to decide when or if a dispute between two arms of state government goes to court and that DiZoglio filed the suit against the Legislature without approval. She also says her office hasn’t received sufficient information from DiZoglio to be able to decide whether to represent her in a suit against the Legislature.

DiZoglio’s office has said, and she reiterated Wednesday after oral arguments, that the legislative audit it is trying to conduct would be focused on four specific requests outlined in a January 2025 memo: the official budgets for each chamber of the Legislature for fiscal years 2021, 2022, 2023 and 2024; copies of official audits of each chamber for the same fiscal years; a listing of all transactions related to each chamber’s balance forward line item for those fiscal years; and a list of all monetary settlement agreements entered into by each chamber with any current or former employees or elected members during the same timeframe.

Justices made clear Wednesday that they are also interested in the underlying constitutional and process questions that have effectively blocked implementation of a law passed in 2024 by 72% of voters. Justice Scott Kafker said the two sides are “stuck and not moving, and the people are waiting for an answer.”

“Ultimately, you two don’t get to decide to leave it in limbo indefinitely, because the people have an interest in having that resolved, and this court ultimately decides whether that’s constitutional or not, not you,” Kafker said. “So how do we push this to resolution so the people get at least a determination whether that’s constitutional or not, those [four] items.”

Assistant Attorney General Anne Sterman responded by arguing that DiZoglio’s office’s representation that the audit would be limited to those couple of matters “has been wildly inconsistent.” Kafker asked if helping to push the matter forward is something the court could do.

“I don’t think that that would be an appropriate path for this court,” she said.

Kafker responded, “Making you two resolve what the case is about so that this court can decide whether it’s constitutional or not. We don’t have any say over that?”

Sterman argued that the court’s view should be more narrow, reminding the bench that “the only question that has been reserved and reported today is the motion to strike the complaint.” Kafker asked Sterman whether she thought the AG’s office could “indefinitely prevent this court from deciding a constitutional question.”

“And that’s not our intent,” she responded.

That drew Justice Serge Georges into the back-and-forth. Whether it’s the AG’s intent or not, Georges said preventing the court from deciding the constitutional question is “the practical effect” of the standstill.

“Although you mentioned that this might, in your view, be a squabble between two different parties, you’re leaving us out. It effectively prevents any court from passing on the validity of the statute,” he said.

About 20 minutes into a volley of questions from the bench, Justice Gabrielle Wolohojian raised with Sterman the idea of an order from the court essentially setting deadlines for DiZoglio to answer certain questions from Campbell and then for Campbell to decide whether she will represent DiZoglio or otherwise allow the suit to move forward. 

“It is hard for me, looking at the history of correspondence, to think that an order might be useful if we’re just going to repeat the same cycle of unproductive communications. It seems to me, perhaps, that a deadline would have to be set by which the attorney general would fish or cut bait, to use a common phrase,” Wolohojian said.

Sterman said the AG’s office would be open to such an order “if that would assist the court” and would not need much time to make a determination. Attorney Shannon Liss-Reardon, representing DiZoglio, said the auditor would have no objection to an order like the one Wolohojian described.

“I think having a set deadline by the court could be helpful here, because the attorney general has effectively said no, but has not admitted that she said no. With the deadline, we have to get a yes or a no. So I think that could help move this forward,” she told reporters outside the courtroom.

Liss-Reardon also faced tough questions from the bench. Wolohojian took issue with the fact that DiZoglio’s complaint “doesn’t identify a cause of action,” which could mean the filing is technically deficient. Chief Justice Kimberly Budd let Liss-Reardon speak for just 30 seconds before asking why DiZoglio did not start by bringing a complaint against the attorney general for not moving forward with the audit lawsuit “as opposed to jumping ahead” to suing the Legislature without the attorney general’s authorization.

Liss-Reardon responded that doing so was not required and having to do so now would only delay resolution of the issue. 

“As attorney Sterman brought up, you know, this will send the message that anytime somebody from the executive branch decides, any state agency decides that they don’t want to wait and they don’t want to go through that procedural hurdle, that they can just do as you did,” Budd said.

Under prodding from Wolohojian and Kafker, Liss-Reardon conceded that “this case is about the four asks” from the January 2025 letter, and nothing more. 

“It’s always been the same. It’s been communicated to both the Legislature and the attorney general. So, you know, we’re happy to answer their questions yet again, if the court asks us to, but our answers will be the same. The scope has remained the same. The requests have remained the same,” she told reporters. 

Late in the hearing Wednesday, Justice Dalila Argaez Wendlandt may have given an indication as to the kind of order that the court may issue in an attempt to unjam the audit case.

“It’s not true that the attorney general has stonewalled this case. There has been correspondence back and forth. And I think we’re at a point where if you are willing to live with – and you are willing to live with – these four topics and that’s it in this lawsuit, we give the attorney general 30 days to determine the scope of the complaint that she is willing to bring or not willing to bring,” Wendlandt said. 

Only five of the seven justices of the SJC heard Wednesday audit case. Justices Frank Gaziano and Bessie Dewar did not participate. Dewar worked as recently as 2024 as the state solicitor in the attorney general’s office and briefly served as acting attorney general when Maura Healey resigned that job to become governor. 

After Wednesday’s hearing, DiZoglio said she would be glad to see the court settle the constitutional questions hovering around the audit, even if it is officially the motion to strike that the justices are considering. 

“They may if they desire, if it’s the court’s wishes to do so. We would be open to that, we would welcome that. We would welcome that, because it certainly is constitutional. I have a very strong opinion about that. I’m very confident in that position,” DiZoglio told reporters after Wednesday’s arguments. 

Campbell did not appear to attend Wednesday’s arguments and her office told the News Service she would not be available for an interview Wednesday. 

In March, as the Senate sought advisory opinions from the SJC on two of this year’s potential ballot questions, Republicans in that branch pressed unsuccessfully to also ask the SJC’s opinion of the constitutionality of the audit law passed by voters in 2024.

“The voters who approved this law by a decisive margin deserve a clear and authoritative answer as to its constitutionality and the Legislature’s corresponding obligations,” the Republican caucus wrote.

At the time, a spokesman for Spilka pointed to the case’s pendency before the SJC and said she was “hopeful that the Court will provide resolution on that issue soon.”