Supporters of Auditing Legislature Back in Court

SHNS

The Massachusetts House "voted to undermine the text" of the new voter law giving the state auditor the authority to audit the state Legislature, according to a new lawsuit filed in Suffolk Superior Court that seeks to invalidate a recently adopted House rule and declare the new law constitutional.

The suit filed Friday afternoon by former state Rep. James Lyons asserts that a House vote on Nov. 14, less than two weeks after the overwhelming passage of Question 1, offered "half-a-loaf" to Auditor Diana DiZoglio with a new rule that "does not allow the Auditor to audit the Legislature." The rule passed on a 135-10 vote.

The new law states that the state auditor "shall audit the accounts, programs, activities and functions" of the Legislature. It states further that the auditor's office "shall have access to such accounts at reasonable times and the department may require the production of books, documents, vouchers and other records relating to any matter within the scoop of an audit conducted under this section, or section 13, except tax returns."

The House's existing Rule 85A instructs the House business manager, with approval from the chamber's legal counsel, to select an outside, independent auditor to examine financial accounts each year.

The amendment to House Rule 85A states that the House would hire an outside auditor recommended by DiZoglio to conduct the outside financial audit limited to "House financial accounts." The House business manager would provide the independent auditor with requested financial documents, the rule says.

"This directly undermines the intent of the voters in allowing the Auditor to directly audit the Legislature and expressly confirming her authority to do so," according to the lawsuit filed for Lyons, the former chair of the Massachusetts Republican Party, by attorney Michael Walsh of Walsh & Walsh LLC of Lynnfield.

Deliberations on the House rule are complete, the suit notes, differentiating between a branch rule and a law, which would require the involvement of both branches and the governor.

"It remains true that, in the next session and after the vote on Question 1 has been certified, the Legislature might chose [sic] to hazard the voters' ire by amending the adopted law," the suit says. "However such an act must occur through the legislative process with the input of the Governor, not by a vote of a single house of the Legislature."

The suit asks the court to "enter a declaration and injunction" that the voter law has primacy over the House rule and that "the Court should hold the proposed amendment invalid."

"The Court should hold that, once the vote is certified, that the Auditor has the statutory authority to audit the Legislature in accordance with Question 1," according to the lawsuit, which names Secretary of State William Galvin and Attorney General Andrea Campbell, in their official capacities, as the defendants.

It further asks the court to rule that the new law is constitutional, "in the face of the Legislature's assertions," in part because the new law "is a policy stretching across all branches of government" and "does not have the capacity to undermine the Legislature's independence or authority."

The law does name the Legislature as a specific entity subject to audits by the state auditor, but also names "all departments, offices, commissions, institutions and activities of the commonwealth, including those of districts and authorities created by the general court and the general court itself ... "

Rep. Danielle Gregoire, the first division chair in Speaker Ron Mariano's leadership team, was the only House member to speak about the rule change prior to its adoption. She said it would ensure "any audit pursuant to the passage of Question 1 will be a professional audit, not a political one," an apparent reference to DiZoglio's clashes with legislative leaders during and after her time serving as a state representative and senator.

Lyons also served in the House, until he was defeated in 2018 by Democrat Rep. Tram Nguyen. He went on to chair the Republican Party, which absorbed more legislative losses during his tenure and is now attempting to revive itself under new leadership.

Speaking with reporters before the Nov. 14 rule vote, Mariano pitched it as "an opportunity to acknowledge the 70-30 vote of the electorate."

"Obviously, they weren't happy with the way we were doing things, and we took a look at the way we were doing things," he said. "We found we could make a few changes that we think maintains a strong financial audit while still backboning our argument about the separation of powers."

The lawsuit was announced at 5:15 p.m. Friday through a press release from the Andover-based "Massachusetts Freedom Fighters," which questioned why more Republicans did not oppose the House rule.

"Instead, we get more 'go along to get along' politics from elected Republicans on Beacon Hill," the release said. "We can’t accept this any longer. President Trump's win has given our country hope. We need to follow that up with constructive action at our state and local level. It means organizing. And, when necessary, it means litigation. It’s time to bring the heat. That’s what we’re doing with this lawsuit."

According to the lawsuit, only three binding questions in the last 105 years have had a higher margin of victory in Massachusetts - 1998's Question 3 (72%), 2012's Question 1 (74%), and 2016's Question 3 (75%).

Those questions dealt with the income tax rate on interest and dividend income, access to information for vehicle repairs, and the protection of farm animals, respectively.

A Galvin spokeswoman said he has no role in the administration of the new law, and noted the election results have been certified and the new law has received a chapter number.