Even though Bishop Donald Pelotte has resigned as head of the Diocese of Gallup, the legal struggle continues over the release of police photos taken in July 2007 of Pelotte's injuries while he was being treated in a hospital emergency room after what he said was a fall in his home.

Martin Esquivel, attorney for Albuquerque television reporter Larry Barker, last week filed a change-of-venue motion, asking that the civil lawsuit over the release of the photos be moved out of McKinley County and the 11th Judicial District Court, the Gallup Independent reported.

When Barker, an investigative reporter with KRQE News 13, first made a public records request for the emergency room photos under the New Mexico Inspection of Public Records Act on Aug. 1, then-City Attorney George Kozeliski filed suit against Barker, Pelotte and the Diocese of Gallup seeking a court determination of whether those photos were public record, according to the Independent.

Kozeliski has since become a staff attorney for the 11th Judicial District Court, where one of his responsibilities is advising three district judges in Gallup, the paper reported.

"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 wrote in his change-of-venue motion. "The weight and credibility of Mr. Kozeliski's testimony will be crucial in the determination of this case."

Esquivel argued that Barker could not get a fair trial because of Koseliski's close connection to the 11th Judicial District Court, the Independent said.

Asked this week why he was filing the motion now, Esquivel told the Independent that he and lawyers for the city and the Diocese of Gallup had told state District Judge Grant Foutz the parties were trying to work out an agreement but that those attempts recently "hit a brick wall."

Luis Stelzner, the Albuquerque attorney who is representing the Diocese of Gallup but not the former bishop, told the Independent that the diocese would not take a position on the change-of-venue motion but was still "open to negotiations" with the city.

Esquivel said the fact that Pelotte has not hired an attorney to represent his interests shows that neither the diocese nor Pelotte is very interested in asserting the former bishop's privacy rights -- an issue that was raised early in the case, the Independent said.

Stelzner told the paper that he wasn't representing Pelotte because the former bishop had not been served in the lawsuit.

Meanwhile, Bishop Thomas J. Olmsted, the bishop of the Phoenix Diocese who is serving as apostolic administrator in Gallup, said in an e-mail to the Independent that Pelotte's medical records are his personal records and that diocesan staff haven't seen the police photos.

"Therefore, I recognize that neither I nor the Diocese of Gallup has a legal right to decide whether those photographs are made public," Olmsted wrote.

Olmsted said that while the police department authorized taking the emergency room photos without Pelotte's consent and still possesses them, "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," the Independent reported.

"It is my hope that those members of the media would also respect Bishop Pelotte's privacy," Olmsted's e-mail said.

Following his resignation as bishop last month, the 63-year-old Pelotte, who spent months recuperating from the injuries he sustained last July, reportedly was living in Florida with family members. 

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