Wichita A Sedgwick County judge refused Wednesday to reinstate criminal charges against Wichita abortion provider George Tiller, only hours after outgoing Attorney General Phill Kline announced he would appoint a special prosecutor to handle the case.
Kline had filed 30 misdemeanor charges against Tiller, accusing the doctor of performing 15 illegal late-term abortions in 2003 on patients ages 10 to 22 and not properly reporting details to state health officials.
Judge Paul W. Clark dismissed the charges over a jurisdictional issue Friday, less than a day after Kline filed them. Kline then asked Clark to reinstate the charges, but the judge rejected that request during a hearing Wednesday.
Hours earlier, Kline announced that he would appoint a special prosecutor - Wichita attorney Don McKinney, a Democrat and brother of House Minority Leader Dennis McKinney, D-Greensburg. Kline said he chose Don McKinney because he's a well-respected attorney and a Democrat.
"This appointment of an independent special prosecutor will remove this investigation from a highly charged political process," Kline said during a news conference.
Kline also said he would have the special prosecutor move forward with the investigation even if Clark ruled against him. "There are numerous options," Kline said when asked how the prosecutor would proceed.
Kline's announcement and Clark's decision came just 13 days before Kline, a Republican and strong abortion opponent, leaves office as attorney general. Kline lost the Nov. 7 general election to abortion rights Democrat Paul Morrison.
During Kline's campaign against Morrison, McKinney castigated a newspaper for not aggressively investigating 15-year-old, unproven allegations of sexual harassment against Morrison.
Kline acknowledged Morrison could abolish the special prosecutor's job upon taking office Jan. 8, but said he was asking Morrison not to do that.
A spokesman for Morrison did not have any immediate comment.
However, Sedgwick County District Attorney Nola Foulston said she would not allow a special prosecutor to file charges against Tiller.
"If somebody is going to prosecute, it's going to be this office," she said, noting she has asked Kline for all the documents in the case.
In court, 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.
"This district attorney is being usurped by some out-of-towner who's on his way out," Foulston told the judge.
Kline argued that his office has broad authority and doesn't need Foulston's consent to pursue a case.
Ruling from the bench Wednesday, Clark said he agreed with Foulston that she must give her approval for Kline to prosecute, and he concluded that she did not.
Kline has said he consulted with Foulston before filing the criminal charges Thursday afternoon and that she did not object to his plans.
After the hearing, Foulston told reporters that she never acquiesced.
Kline said he will let the special prosecutor decide whether to appeal.
He criticized Clark's decision, saying neither the judge nor the district attorney had reviewed any of the evidence. But, he added, "This is not unexpected."
Critics such as Morrison have accused Kline of letting a personal, ideological agenda drive his decisions. Abortion opponents have argued that Tiller, to avoid prosecution, had helped finance advertising aimed at defeating Kline, and they have accused Foulston, also a Democrat, of trying to protect the doctor.