Sam Drysdale
State House News Service

Auditor Diana DiZoglio will get her long-sought day before the full Supreme Judicial Court, though not to argue the key question of whether the 2024 voter-approved audit law is constitutional.

Instead, the justices are poised to take up a procedural fight that — according to the auditor's legal team — could also determine whether DiZoglio can be represented in court by outside counsel, including Shannon Liss-Riordan, a Democrat who ran against Andrea Campbell in 2022.

SJC Justice Dalila Argaez Wendlandt is deferring to the full panel of justices on the question of whether Campbell can strike DiZoglio's legal complaint, in which she's seeking to gain counsel to represent her in court.

In a "reservation and report" issued Wednesday, Wendlandt wrote, "I find that the issues raised by the motion to strike warrant consideration by the full court," and ordered that the matter be sent to the full bench without a decision from her.

She emphasized that the step is limited in scope, adding, "at this time, I am not reporting or deciding the merits of the State Auditor's dispute with the Legislature. The motion to strike presents threshold issues that must be resolved first."

DiZoglio's legal counsel says those "threshold issues" carry broader implications. Michael Leung-Tat, general counsel for the auditor's office, said the court's decision to take up the attorney general's motion to strike — and the auditor's opposition filed by Liss-Riordan — effectively puts the question of outside representation back before the full bench.

"Just wanted to point out that the issue of whether we can be represented by outside counsel is still under consideration," Leung-Tat said. "Attorney Shannon Liss-Riordan submitted our opposition to the AG's motion to strike, which Justice Wendlandt said raised serious issues and needs to be taken up by the full SJC. We're asking to have her appointed as counsel to represent us in this motion practice against the AG and the underlying litigation against the Legislature in connection with our authority to audit the Legislature."

He continued, framing the development as a step forward for both the procedural dispute and the broader representation fight: "This development is a win. We wanted the issue of our challenge to the AG's action, and ability to be represented by outside counsel, to be heard by the full SJC and that is what is happening now. They are considering our argument that we are able to have our own lawyer represent us – an argument previously acknowledged by the SJC and Justice Wendlandt."

The move tees up a pivotal procedural fight over whether DiZoglio can access legal representation independent of the attorney general — who opted to represent defendants House Speaker Ron Mariano and Senate President Karen Spilka in the dispute. Obtaining counsel is a prerequisite to DiZoglio advancing her broader effort to enforce the 2024 law authorizing her office to audit the Legislature. House and Senate leaders have resisted DiZoglio's auditing efforts, citing constitutional issues around separation of powers.

The attorney general has argued that she alone has the authority to represent state officials in court and has moved to strike the auditor's complaint on those grounds. DiZoglio, by contrast, has argued that she should be able to obtain outside counsel, particularly since the attorney general has declined to represent her.

Wendlandt's order frames the dispute squarely as a legal threshold question for the full court, noting that the case centers on whether the auditor "improperly commenced this action without [the attorney general's] authorization" or whether the attorney general "has exceeded the bounds of her authority... by acting in a 'capricious, arbitrary or illegal manner in refusing to represent a governmental body.'"

The full court will now review the existing record, which Wendlandt said is already sufficiently developed, consisting of filings and correspondence between the auditor's office and the attorney general.

In a March 3 ruling, Wendlandt denied DiZoglio's request to appoint a special assistant attorney general, writing that the auditor had cited "no statute, constitutional provision, or other authority" allowing a single justice to make such an appointment.

In that earlier ruling, Wendlandt also underscored the attorney general's position that Campbell "is the only official authorized to commence litigation on behalf of a State agency or official."

DiZoglio pressed forward days later with a March 5 filing opposing the motion to strike arguing that blocking her access to the courts would undermine constitutional principles.

"The people of the commonwealth have been waiting for the enforcement of their democratic referendum since November 2024, and they are entitled to an answer from the Judiciary on whether the audit may proceed," her office wrote. "The Attorney General's effort to unilaterally block the Auditor's access to the Judiciary — while representing the Auditor's adversaries in this case — is not a legitimate exercise of discretion."

Her attorneys also argued that without independent representation, "the Attorney General would be in a position to stymie the Judiciary's authority to determine the constitutionality" of the audit law.

The underlying dispute stems from a ballot law approved by roughly 72% of voters that expanded the auditor's authority to review legislative "accounts, programs, activities and functions." Legislative leaders have resisted those efforts, raising separation of powers concerns and suggesting that DiZoglio is pursuing a political audit.

For now, however, the full court will not weigh in on those constitutional questions — even as, according to the auditor's counsel, its decision on the motion to strike could shape whether DiZoglio is able to pursue them with independent legal representation.

Leung-Tat said the ruling represents an important step forward.

"This is a landmark case where our office is fighting for the people of Massachusetts who voted to mandate that we audit the Legislature," he said. "Our office welcomes the opportunity to make the people's case before the full court. The Attorney General's Office cannot continue to stand in the way of the people or stand in the place of the courts."

The Massachusetts Fiscal Alliance, which has been a supporter of the audit, also welcomed the development, calling the full bench review "a clear and meaningful step forward."

"This is such a rare and unique legal case that the wisdom of the full court is necessary," said executive director Paul Craney. "We hope the court also considers reviewing the underlying constitutional issues at the core of the audit dispute while it has this case before it."