Ret. Mass. judge, Deaton back DiZoglio’s legal efforts to audit Legislature

State Auditor Diana DiZoglio’s legal battle with legislative leadership and Attorney General Andrea Campbell to conduct a voter-approved audit of the Legislature is gaining support from a retired Trial Court judge as U.S. Senate candidate John Deaton files his own lawsuit to make it a reality.

DiZoglio announced last week that she is going straight to the Massachusetts Supreme Judicial Court, filing a lawsuit seeking relief to order House Speaker Ron Mariano and Senate President Karen Spilka to comply with the audit.

The legal action also seeks permission to appoint outside counsel selected by the Auditor’s Office to Special Assistant Attorney General (SAAG) to represent them – something Attorney General Andrea Campbell says DiZoglio does not have the authority to do.

Meanwhile, Republican U.S. Senate candidate John Deaton has announced a similar lawsuit, filed with a group of 30 Massachusetts taxpayers, under a century-old state law (M.G.L. c. 29, § 63) to “prevent the unlawful expenditure of public funds by the Massachusetts Legislature.” The group is being represented by Boston attorney Michael Walsh, who notably, once represented disgraced former state Sen. Dean Tran.

Like DiZoglio’s lawsuit, Deaton’s seeks to compel the Legislature to comply with the mandated audit, granting the State Auditor’s Office authority to probe legislative operations. However, Deaton does not need to seek approval from Attorney General Andrea Cambell – something DiZoglio has been battling in her efforts to get the Legislative audit moving forward.

“Well, guess what? The attorney general can’t come to this court, can’t [do that] to these fine people and say, ‘you didn’t ask for my permission,’ because we have a century old statue that gives us independent standing. We don’t have to ask for her permission,” Deaton said, explaining that they will be suing on writ of mandamus – a court order directing a government official, agency, or lower court to perform a mandatory duty they have neglected.

“I sued the Federal Government on a writ of mandamus and a lot of people said, ‘oh, it’s never gonna work.’ Well, it ended up working. And we have a similar theory here. Writ of mandamus basically goes to the court and says, there is a state officer not doing their job. And we’re asking you, Judge, to order them to do their job,” said Deaton.

“The Legislature, the governor, the attorney general, and every single elected official in Massachusetts who remains silent, like Ed Markey, is telling each voter, every voter in Massachusetts that your vote only matters when they like it, that your vote only matters if they agree with it. And that’s why we’re here,” he said.

Senate candidate John Deaton announces that he and others have filed a lawsuit in support of the state audit. (Staff photo by Stuart Cahill)

In her legal battle with the legislature, DiZoglio is gaining support from retired Massachusetts Trial Court Judge Carol Erskine, now working as a media consultant and contributor. Erskine posted a fiery message to social media in defense of DiZoglio on Wednesday, slamming former colleagues in the Trial and Appeals Courts for recently taking the position that state courts are not subject to audits – just as the state Legislature has done since the audit was approved by 72% of voters.

“Thanks to those who called my attention to the Mass. Trial Court and Mass. Appeals Court recent position days ago that they are not subject to audits just as the legislature has so declared,” Erskine posted to X, calling out Trial Court Chief Justice Heidi Brieger and Appeals Court Chief Justice Amy Blake for their positions against an audit of the courts.

“It would have saved me hours of time if I knew that when the Massachusetts Trial Court Chief Justice made clear that I, as first justice in my court had to comply with the state auditor. How pathetic is it that the justices at the highest levels in the Commonwealth didn’t interpret the authorizing statute as exempting the courts from audits in the past, as they do now when they want to get out of revealing their secrets.  And trust me, they do have secrets,” she said.

Ret. Massachusetts Trial Court Judge Carol Erskine. (@TheCarolErskine/X)

DiZoglio said last week that her office was attempting to audit the courts’ websites and accessibility to them, blasting the two judges for blocking that audit, adding that it shows “this behavior is permeating throughout state government.”

“Judge Heidi Brieger has now decided that she will not allow our office to review even the accessibility of her court’s website to better assist disabled persons and others to be able to better access court documents. This was something that apparently was incredibly offensive to the courts,” DiZoglio told reporters. “Judge Amy Blake also decided to use the Attorney General’s defense of the legislature to block our audit of their court’s website.”

DiZoglio ran into this latest roadblock set by Judges Brieger and Blake last week, taking to social media to air her frustrations.

“We are in a constitutional crisis and it’s absolutely unbelievable that the courts would choose this time in history — of all times — to take this position. We’re supposed to trust that the people of the Commonwealth — who voted 72% in favor of an audit of the Legislature — are going to get a fair hearing before judges now when the courts just aligned themselves with the Attorney General and Legislature” DiZoglio told the Herald in a written statement.

“This sets a very dangerous precedent and is cause for serious concern with respect to the courts’ ability to rule on the matter of auditing the Legislature, impartially,” she said.

Attorney General Andrea Campbell says DiZoglio does not have the authority to file her  lawsuit.