dissenting.
Concurring in the per curiam opinion with respect to certain items vetoed by the governor, I must respectfully dissent with respect to Item F. Item F reads as follows:
There is also appropriated the sum of two million seven hundred twenty-two thousand nine hundred ninety-five dollars ($2,722,995) to the administrative services division of the human services department to be matched with three million twenty-eight thousand one hundred five dollars ($3,328,105) in federal funding to be expended only for data processing services [to be purchased from the General Services Department for the ISD 2 system].
State of New Mexico, Laws 1988, Chapter 13, at 105 (Vetoed language bracketed).
In my opinion the governor’s veto of this item is opposed to our holding in State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P.2d 975 (1974), in the following particulars:
(1) The veto does not eliminate or destroy the whole of the item or part, but instead distorts the legislative intent by creating legislation inconsistent “with that enacted by the Legislature, by the careful striking of words, phrases, clauses or sentences.” Id. at 365, 524 P.2d at 981.
(2) “Regardless of whether or not the governor’s judgment as to this item is better than that of the Legislature, the fact remains it was for the legislature to determine the condition or contingency under which the [General Services Department] could spend this appropriation for contract services.” Id. at 366, 524 P.2d at 982.
(3)The governor’s veto implicitly authorizes funding to agencies not intended by the Legislature, or as the court in Sego put it, “the effect of [this veto] was to conditionally appropriate additional funds, or at least authorize their appropriation” to an agency other than the General Services Department. Id. at 368, 524 P.2d at 984.
In short, the governor by this veto accomplishes by indirection what he is otherwise prohibited from doing directly by our holding in Sego, and I cannot participate in the majority’s decision as to item F precisely for this reason.
Further, I disagree with the majority’s characterization of the General Services Department as a “contracting party” (Majority Opinion at 447, 759 P.2d at 1388) or as “a specific contractor.” Id. at 446, 759 P.2d at 1387. How is it that the majority can say, “The executive management function has been largely swallowed up by the legislature,” id., when it is precisely an organ of the executive branch (the General Services Department) from which the ISD 2 System was to be purchased? I hardly think it overbearing on the part of the legislature to allow the executive branch to “contract” with itself.
It seems to me that, with respect to Item F, the majority opinion is a house divided. It disagrees with the governor’s “main objection,” id. at 446, 759 P.2d at 1387, to Item F (controlling federal funds), as violative of Sego v. Kirkpatrick, but then upholds the veto on grounds that the legislature abuses its “oversight function,” id. at 446, 759 P.2d at 1387. In reality, however, the legislature simply directs, in common-sense fashion, that the General Services Department control the purchase of the ISD 2 System, precisely as the General -Services Department controls the everyday purchase of countless other items to be owned by the state.
For the foregoing reasons I dissent as to Item F.