“WE WILL NOT tolerate a kangaroo court…” 

That was state Auditor Diana DiZoglio declining, by way of a tweet, to take part in a Senate-sponsored hearing scheduled for Wednesday on the constitutionality of the law passed by the voters in November allowing her office to audit the Legislature.  

The “kangaroo court” she’s referring to is a four-member Senate subcommittee created to guide the Senate in developing its position on the constitutional issues the new law has raised (a picture of four kangaroos wearing English barrister wigs appears below the tweet). The “we” who will not tolerate the kangaroo court are the auditor and her supporters.  

You might ask why the law’s constitutionality is being raised now rather than before the election. Are laws that might be unconstitutional allowed to appear on the ballot anyway?  

Yes, they are.  

A proposed law may be excluded from the ballot only for one (or more) of a narrow set of reasons, and the possible unconstitutionality of the law is not among them, as the decision of Attorney General Andrea Campbell (who has the responsibility to determine which proposed laws may advance to the ballot) approving this question demonstrated.  

If last year’s ballot campaign had failed, of course, there would have been no need for the subcommittee’s work. But it succeeded, in part because lawmakers brought a long-simmering resentment about the Legislature’s secrecy and perceived arrogance to a boil.  

A series of unforced errors, like failing to finish its work on many of the most important bills of the session by its own self-imposed deadline, prompted voters to ratify the ballot question overwhelmingly, by a 72-28 margin. 

The Senate subcommittee will convene on April 2, seeking testimony from invited guests and members of the public on several questions, including whether the new law violates the separation of powers clause of the Massachusetts Constitution, which prohibits the three branches of government — legislative, executive and judicial — from infringing on one another.  

The purpose of the separation of powers doctrine is to “diffuse power the better to secure liberty,” and our state Constitution goes to syntactic extremes to leave no doubt about that objective:   

“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” 

The resolution of separation of powers issues can be difficult, presenting the courts with challenges not unlike those the early Church fathers encountered when trying to illuminate the mystery of the Trinity: one God in three persons? One government in three branches?  

A proper analysis requires a “scrupulous” inquiry, the Supreme Judicial Court has ruled. In three recent cases, the court found no separation of powers violation in two (Gov. Baker’s Covid-era orders shutting down the economy for a time did not improperly encroach on the Legislature’s powers; the Legislature did not improperly abdicate its authority when it delegated the power to formulate the details of the MBTA Communities law to the executive branch), but a statute allowing the Department of Correction to decide where a mentally-ill prisoner should be incarcerated did improperly usurp the power of the judicial branch to make that determination.

The separation of powers clause is also the reason why the attorney general may not rely on the possible unconstitutionality of a proposed law to exclude it from the ballot: The authority to determine the constitutionality of a law is reserved for the judicial branch to exercise. 

Whether the auditor, who in this case is the representative of the executive branch, can demand to examine the records of the Legislature over its objection certainly presents a separation of powers issue, which the auditor’s own statements have complicated further.  

At one time, she claimed the authority to obtain not only the usual raw material of an audit (receipts, balance sheets, procurement records) but also information on internal House and Senate rules, which are expressly protected by other constitutional provisions and do not even invoke the separation of powers clause. A more recent statement announced that her audit would “start” with “all relevant financial receipts and information,” a formulation that left open the possibility that more problematic demands would follow.  

She has seemed to wave away any constitutional concerns by citing the approval of 72 percent of voters, but an electoral supermajority has no bearing on their proper resolution. She has claimed that lawmakers have “intentionally misled voters regarding the constitutionality of an audit,” and she has accused the Senate subcommittee itself of violating the separation of powers doctrine by exercising the power of the judiciary (hence the “kangaroo court”), but without further elaboration.  

The attorney general, in responding to the auditor’s request that she respond to the Legislature’s intransigence by filing a lawsuit, commiserated that “the consideration of separation of powers principles may be vexing, frustrating, or insufficiently responsive to the politics of the moment,” a sentiment that the auditor and her supporters would enthusiastically agree with.  

But especially in these precarious times, when the federal government is offering up daily illustrations of the dangers of consolidating power in one branch, it’s unwise to discount the wisdom of diffusing governmental power.

The Senate subcommittee hearing offers the auditor the opportunity to make the case that her demand of the Legislature is consistent with constitutional principles, but it seems that she has declined to take it.   

Margaret Monsell, a former assistant attorney general and former general counsel to the state Senate Committee on Ways and Means, is an attorney practicing in the Boston area.