Bishop's photos prove elusive
Police snapshots of Pelotte’s injuries still being kept from public

By Elizabeth Hardin-Burrola
Staff writer

Bishop Donald Pelotte

GALLUP — McKinley County’s senior District Court Judge, Grant L. Foutz, is now presiding over part of the legal battle concerning police photographs taken of Roman Catholic Bishop Donald Pelotte. The first judge in the case, Louis E. DePauli Jr., is out.

According to the court files, other than the change in judges, not much new has happened since one of the defendants in the original civil case, a television reporter from Albuquerque, filed a civil complaint against the original plaintiff, the city of Gallup.

Pelotte, 62, the bishop of the Diocese of Gallup, was photographed by Gallup Police officers in the Rehoboth McKinley Christian Hospital emergency room on July 23 after being discovered severely injured in his home by his assistant. Police released copies of the police report but did not release copies of the photographs.

On Aug. 1, television reporter Larry Barker requested copies of the photos under New Mexico’s Inspection of Public Records Act. About a week later, George W. Kozeliski, Gallup’s former city attorney, filed a complaint for declaratory judgment, naming Barker, Pelotte, and the diocese as defendants. In the complaint, Kozeliski essentially asked the court to determine if the photographs are public records that can be released. In the suit, Kozeliski includes a letter from Luis G. Stelzner of Sheehan, Sheehan and Stelzner, the attorney who represents Pelotte and the diocese, who asserts that Pelotte “was not capable of giving informed consent” to the police photographer and that the photographs are protected by HIPPA laws. Judge DePauli was assigned to the case, and private attorney Lynn Isaacson of Mason, Isaacson and Macik was selected to represent the city in the case.

In early October, Barker’s attorney, Martin R. Esquivel of the Narvaez Law Firm, filed a petition for alternative writ of mandamus with the city of Gallup as defendant and asked the court to compel the city to comply with the state’s Inspection of Public Records Act. District Court Judge Robert Aragon was assigned to that case.

On Nov. 2, Esquivel submitted a notice asking that DePauli be excused from presiding over the first case. DePauli was subsequently replaced by Foutz. Esquivel also submitted an answer to the city’s complaint for declaratory judgment.

According to court records, neither Pelotte or the diocese have responded to the complaint, and no other documents have been filed with the second case.

“Normally, a writ of mandamus calls upon the Court for immediate action to be taken — at least for the Court to call upon the other side to answer to the allegations,” wrote Esquivel in an e-mail to the Independent. “Oddly, the Court has chosen to not take any action on it.”

Many of Gallup’s small-town connections have surfaced in this battle over the Pelotte photos. DePauli and Aragon were former law partners, Isaacson practices law with James Mason, who formerly represented the Diocese of Gallup, Kozeliski now is the staff attorney for 11th Judicial District Court — which includes DePauli, Aragon, and Foutz — and he also serves as a member of the Diocese of Gallup’s Diocesan Finance Committee.

In a telephone interview on Thursday, Kozeliski was asked if he thought it was a conflict of interest that he filed the complaint for declaratory judgment with the court that he now works for as a staff attorney. Kozeliski said there was no conflict because he is not involved with the cases and has never discussed the cases with the judges.

“I stay totally away from it and don’t discuss it,” he said. “They know not to ask me,” he added of the judges.

Weldon Neff, the court administrator for the 11th Judicial District Court and Kozeliski’s supervisor, was reached by telephone on Thursday at his San Juan County office. Neff agreed that it would be a conflict if Kozeliski did discuss the cases now or research them, but he expressed confidence that Kozeliski would never do that.

“He’s quite professional, he’s quite ethical,” Neff said. “I am glad that we have George on board,” he later added.

“We were lucky to get someone with George’s experience and knowledge.” If either Aragon or Foutz needed the cases researched, explained Neff, the staff attorney in San Juan County could perform that work.

Esquivel, however, has a different view. “I thinks it’s a major conflict of interest,” he said on Thursday.

The Independent attempted to contact Isaacson for comment, but he did not return the call.

Kozeliski was also asked about his volunteer duties with the Diocesan Finance Committee. According to the diocese’s Web site, Kozeliski serves on the committee with three chancery officials — Deacon Timoteo Lujan, the chancellor who discovered the severely injured Pelotte in July, Deacon James P. Hoy, and Anna Jean DiGregorio —as well as Deacon Joseph Krikawa and Tony Gonzales, a Gallup C.P.A.

Kozeliski said he has been a member of the committee for about six years, and the committee meets very infrequently — about one time per year or even less often.

The last time it met, he added, was last year. He said he believes there is no conflict between his duties to the diocesan committee and his former duties as city attorney.

“What that has to do with pictures of the bishop is nothing,” Kozeliski said. He filed the complaint for declaratory judgment, he explained, “to protect the city of Gallup.” Along with Barker, the complaint does name Pelotte and the diocese as defendants.

Esquivel also has a different view on Kozeliski’s duties with the Gallup Diocesan Finance Committee. Esquivel believes it “sheds light” on statements Kozeliski made soon after Barker filed his public records request. In an Aug. 6 e-mail to Esquivel, Kozeliski wrote: “We requested last Thursday from the Diocese and/or Bishop Pelotte that they agree to the release. We are still waiting their response. If they agree to the release then this will all go away and your client will have its pictures. If they don’t then the City has to make a difficult decision of who we want to be sued by.”