Venue change filed
in Pelotte photo lawsuit

Former Bishop Donald E. Pelotte

By Elizabeth Hardin-Burrola
Staff writer

GALLUP — In the civil lawsuit involving July 2007 police photographs taken of former Bishop Donald E. Pelotte’s injuries, a change of venue has been requested and questions about Pelotte’s lack of legal representation continue to surface.

Martin R. Esquivel, attorney for television reporter Larry Barker, filed a change in venue motion on May 1 and asked that the case be moved out of 11th District Court and McKinley County. The role of George Kozeliski, Gallup’s former city attorney who originally filed the civil complaint in August 2007, appears to be the focus of Esquivel’s motion.

In addition, different parties in the case offer conflicting views about why Pelotte doesn’t have an attorney in the matter.

On Aug. 1, 2007, Barker made a public records request for the photographs to the City of Gallup under the New Mexico Inspection of Public Records Act. On Aug. 7, Kozeliski filed the civil complaint and named Barker as a defendant, as well as Pelotte and the Diocese of Gallup. Kozeliski’s complaint asked the 11th Judicial District Court to determine whether the photographs were subject to the state’s public records law. Soon after filing the complaint, Kozeliski stepped down as city attorney and became staff attorney for the 11th Judicial District Court, where one of his responsibilities is advising three district judges in Gallup.

“As custodian of records at the time of this dispute, Mr. Kozeliski is the key witness in this case to explain the position taken by the City of Gallup,” Esquivel states in his motion. “The weight and credibility of Mr. Kozeliski’s testimony will be crucial in the determination of this case.

“Mr. Kozeliski now serves as staff counsel to the 11th Judicial District Court,” Esquivel continues. “As counsel and an employee to this Court, Mr. Kozeliski is in a position of trust, has working relationships with all judges in the district and has accessibility to other court resources.”

The motion goes on to assert that Barker cannot obtain a fair trial within the 11th Judicial District Court, based on the close connection Kozeliski has with the court.

In a telephone interview on Tuesday, Esquivel was asked why he filed the motion now. During the case’s most recent status hearing, Esquivel and attorneys for the city and the Diocese of Gallup told District Judge Grant Foutz they were attempting to work out an agreement. According to Esquivel, those attempts recently “hit a brick wall.”

Luis Stelzer, the attorney representing the Gallup Diocese, was reached by phone on Wednesday. Stelzer, who said the diocese would not take a position on the change of venue motion, said he was still “open to negotiations” with the city.

Stelzer is not representing Pelotte, and the former bishop has not hired an attorney to represent his interests in the case. Esquivel said he believes that demonstrates neither the diocese or Pelotte is very interested in asserting the former bishop’s “privacy rights,” an issue which was raised early in the case. Pelotte has “sat on his hands” throughout the case, Esquivel said. As to the diocese’s response to the privacy rights issue, he added, “It seems to me they don’t have a strong opinion on it.”

Officials for the diocese disagree with Esquivel, but they don’t necessarily agree with each other. In a Wednesday e-mail, Deacon Timoteo Lujan said diocesan officials didn’t know why Pelotte hasn’t hired an attorney because he hasn’t given them a reason.

However, Stelzer said he wasn’t representing the former bishop “because Bishop Pelotte has not been served in the lawsuit.” Stelzer disagreed with current City Attorney R. David Pederson’s claim that the city provided proper legal service of Pelotte under state law.

Pederson did not return two messages seeking comment.
Bishop Thomas J. Olmsted, the apostolic administrator for the diocese, offered e-mailed comments on the situation. Pelotte’s medical records are his personal records, Olmsted said, and the diocesan staff hasn’t seen the police photographs. “Therefore, I recognize that neither I nor the Diocese of Gallup has a legal right to decide whether those photographs are made public,” he said.

“Nonetheless, because, as I understand it, the police department authorized the taking of the photographs without Bishop Pelotte’s consent and still possesses them, and out of concern for the personal and human dignity of Bishop Pelotte and his rights as a private citizen, especially his right to privacy, I appeal to the City of Gallup to protect the rights and dignity of Bishop Pelotte,” Olmsted continued. “It is my hope that those members of the media would also respect Bishop Pelotte’s privacy.”

Reporter Elizabeth Hardin-Burrola can be reached at (505) 863-6811 ext. 218 or ehardinburrola@yahoo.com.