Topeka A judge decided Tuesday to give outgoing Attorney General Phill Kline a chance to resurrect his criminal charges against Wichita physician and abortion provider George Tiller, but Tiller's attorney predicted Kline wouldn't succeed.
Kline alleges Tiller performed 15 illegal late-term abortions in 2003 on patients ages 10 to 22 and failed to properly report details about the procedures to state health officials. Tiller's attorneys call the allegations groundless.
Thirty misdemeanor charges filed by Kline in Sedgwick County District Court were dismissed Friday by Judge Paul W. Clark after District Attorney Nola Foulston argued that Kline didn't have the authority to file a complaint against Tiller without her consent, which she said she wouldn't give.
Kline asked Clark to reconsider, and Clark scheduled a hearing for 2 p.m. today.
Clark said in a one-page notice issued Tuesday that he will consider only whether a district court has the power to keep a prosecutor from dismissing a case and, if so, whether he can revive the case against Tiller.
Dan Monnat, a Wichita attorney representing Tiller, said he's confident Clark's earlier dismissal of the charges at Foulston's request will stand. He noted that between them, Clark and Foulston have decades of district court experience, while Kline never served as a county prosecutor before being elected attorney general.
"Kline's lack of any prosecutorial experience regrettably puts him in the position of not knowing the basics of how, when and where to file charges," Monnat said during an interview. "This could be viewed as a basic question of separation of powers: When a prosecutor wants to dismiss a case, what power does a court have to interfere?"
The hearing will come only 13 days before Kline leaves office, having lost the Nov. 7 general election to Paul Morrison, an abortion rights Democrat. Abortion rights advocates had been expecting a move against Tiller by Kline.
Kline and abortion
- Complaint filed by Kline (.pdf)
- SegwickCounty.org: Dismissal of charges
- Press release from Tiller's attorneys (.pdf)
- Soon as filed, charges against abortion doctor dismissed (12-22-06)
- Sebelius won't sign off on Kline's district attorney appointment (12-21-06)
- Anti-abortion group gives award to Kline (12-19-06)
- Kline makes plans for new job but not next election (12-13-06)
- Abortion clinics' request rejected (12-01-06)
Critics such as Morrison accused Kline of letting a personal, ideological agenda drive his decisions. Abortion opponents argued that Tiller, to avoid prosecution, had helped finance advertising aimed at defeating Kline, and they've accused Foulston, also a Democrat, of trying to protect the doctor.
"Tomorrow's hearing will tell if corrupt partisan politics will continue to interfere with justice," said Troy Newman, president of the anti-abortion group Operation Rescue.
Kline; Eric Rucker, his chief deputy; and Stephen Maxwell, the senior assistant attorney general on criminal matters, did not return telephone messages Tuesday.
Foulston spokeswoman Georgia Cole said only that the district attorney would participate in today's hearings, declining to discuss how Foulston will answer the judge's questions.
"All our responses, we'll do in court," Cole said.
As for Morrison, spokeswoman Ashley Anstaett said he hadn't seen the judge's notice and would await word from Clark's office before deciding what to do. Morrison was in court Tuesday in Johnson County, where he is district attorney, for a sentencing in a murder case.
Clark's decision to have a hearing on a potential prosecution of Tiller came after a flurry of activity late last week. Kline filed his charges Thursday afternoon, alleging that Tiller, among other things, had improperly used patients' mental health concerns to justify late-term procedures.
Kline's complaint didn't become public until Friday, and Clark dismissed the case less than two hours later.
Foulston argued Friday that Kline didn't have the authority to file the case because she didn't invite him to do so or consent to a request from his office.
Kline told reporters Friday that he was surprised by Foulston's actions because they had met Thursday to discuss his plans and she hadn't objected. He also said his office has broad authority and doesn't need Foulston's consent to pursue a case.
Cole declined Tuesday to respond to those comments, saying: "Our office does not respond to accusations, allegations or those sort of things through the media."