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	Pelotte Photos Spark Lawsuit, Countersuit By Elizabeth Hardin-Burrola Gallup Independent October 28, 2007 http://www.gallupindependent.com/2007/october/102707ehb_pelottephotos.html GALLUP — If the circumstances surrounding Bishop Donald E. Pelotte's injury haven't been confusing enough, another civil lawsuit and another district judge have entered the public drama. Martin R. Esquivel, attorney for Albuquerque television news reporter Larry Barker, filed a Petition for alternative writ of mandamus in McKinley County District Court in early October. With the petition, Esquivel is asking the court to compel the city of Gallup to comply with New Mexico's Inspection of Public Records Act. He asserts the city's legal tactic thus far — filing a civil complaint against Barker — was filed to put a "chilling effect" on future requests for public information, and he also asserts the city did not follow the requirements of the law in its legal process service of Barker. Pelotte, 62, the Roman Catholic bishop of the Diocese of Gallup was severely injured in his home on July 23. Before being flown to a hospital trauma center in Phoenix., Pelotte was seen by an emergency room physician at Rehoboth McKinley Christian Hospital. Although Pelotte said he sustained his injuries from an accidental fall in his home, the ER physician apparently suspected the bishop may have been a victim of a battery. According to the audio recording of the telephone conversation between the ER technician and the Metro Dispatch 911 operator, the physician requested police interview Pelotte in the emergency room and also make an inspection of Pelotte's home to make sure the bishop hadn't been assaulted. Because Pelotte insisted he had not been assaulted, the Gallup Police never inspected his home. However, they did take photographs of his extensive injuries, which were described in detail in the police report. Chancery officials have said that Pelotte sustained traumatic brain injury from the July incident. On Sept. 27, an obviously mentally confused Pelotte called Metro Dispatch to report that four "gentle people," about 3- to 4-feet tall, had invaded his home and refused to leave. Pelotte's 911 call not only made state and national headlines, it has been the subject of much debate in Catholic blogs on the Internet. On Aug. 1, Barker requested copies of the Gallup Police photographs under New Mexico's Inspection of Public Records Act. But rather than comply with Barker's request or provide a written explanation of a denial of the request, George W. Kozeliski, Gallup's former city attorney, filed a civil complaint against Barker, Pelotte, and the Diocese of Gallup. In the complaint, Kozeliski asked the court to help sort out if the police photos are public records or are not. In response, Esquivel filed his civil petition on Barker's behalf in early October. Former private law partners, Louis DePauli Jr. and Robert Aragon have been assigned the two cases. Judge DePauli has been assigned the city's complaint against Barker, Pelotte, and the diocese, and Judge Aragon has been assigned Barker's petition against the city. In Barker's petition, Esquivel states the city's legal action against Barker "undermines the policy behind the Public Records Act that it is the duty of public officials to provide people with the greatest information possible regarding governmental affairs." Esquivel continues: "It also raises serious public policy concerns because of the chilling effect filing a lawsuit against a requester has on future public records requests. No one should ever be subject to a lawsuit for simply requesting public records." "Nowhere in the Public Records Act did the Legislature provide the option of suing the requester when the records custodian cannot decide whether the information is a public record," added Esquivel, who asks the court to require the city to pay damages for its noncompliance under the law, as well as reasonable costs and attorneys' fees. Esquivel also takes issue with the city's legal process service of Barker because he claims the city never carried out the process service as required by law. "They contend they served Larry Barker," Esquivel said in a telephone interview on Friday, Oct. 19. "I contend they didn't." According to the court file, a copy of the city's civil complaint was served on an individual named Paul Burt rather than Barker. Because he believes Barker wasn't properly served, and he hadn't had the opportunity to file an appearance in the case on behalf of Barker, Esquivel also believes DePauli shouldn't have issued an Order Assuming Jurisdiction, which was filed on Aug. 8 in District Court. "I do think it's kind of odd that DePauli entered an order before hearing from the other side," he said. However, Esquivel's greatest frustration is with the Gallup's decision to file a lawsuit in response to a public records request. He believes the city's suit might have been an attempt to stop news coverage of Pelotte's July 23 injury. Esquivel said the city's response to Barker's request — "We don't know the answer to that question. We're just going to sue you to find out." — has broad policy implications in New Mexico. Access to public records is an important issue to the public, he said, and to the media, which frequently acts as the "eyes and ears" of the public. Since filing the city's civil complaint, Kozeliski has stepped down as city attorney. Although R. David Pederson is now Gallup's city attorney, private attorney Lynn Isaacson was asked to represent the city in the case. One of Isaacson's law partners, James J. Mason, previously provided legal representation for the Diocese of Gallup, most notably in a clergy sex abuse case in the mid-1990s. Reporter Elizabeth Hardin-Burrola can be contacted at (505) 863-6811 ext. 218 or ehardinburrola@yahoo.com .
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