Topeka ? A state district court judge in Wichita on Wednesday rejected for the second time charges brought by Attorney General Phill Kline against abortion provider George Tiller.

But Kline, who leaves office in 11 days, said he would not give up. Kline announced he would appoint a special prosecutor today to continue the investigation, and he took swipes at Paul Morrison, the man who defeated him last month and will take over the attorney general’s office Jan. 8.

“The investigation is ongoing,” said Kline, an ardent opponent of abortion.

Wednesday’s developments capped another frenzy of activity in Kline’s three-year investigation into clinics run by Tiller in Wichita and Planned Parenthood in Overland Park.

Last week, Kline filed 30 misdemeanor charges against Tiller, alleging that in 2003 Tiller performed illegal late-term abortions on 15 patients, ages 10- to 22-years-old, and failed to properly report the abortions to the state.

Tiller, through his attorneys, has denied any wrongdoing, saying that the abortions were legal under exceptions to a state late-term abortion ban that allow the procedure if the mental health of the woman is in jeopardy.

Hours after Kline filed the charges late Thursday, State District Court Judge Paul Clark dismissed them after Sedgwick County District Attorney Nola Foulston said Kline had no authority to file the case.

On Wednesday, Kline asked Clark to reconsider his decision.

Kline argued that his office has broad authority and doesn’t need Foulston’s consent to pursue a case.

But Foulston said, “This district attorney is being usurped by some out-of-towner who’s on his way out.”

Clark refused to reinstate the charges.

Just moments before the hearing started, Kline announced he will appoint Don McKinney, an attorney from Wichita, to be the “independent special prosecutor” to take over the investigation.

McKinney “will have full discretion regarding how the state will proceed with its case against Mr. Tiller,” Kline said.

McKinney, a Democrat, endorsed Kline, a conservative Republican, in last month’s election.

During the campaign, McKinney demonstrated in front of The Wichita Eagle to protest what he said was the paper’s downplaying of sexual harassment allegations that a woman had brought against Morrison in 1991 and that Kline had trumpeted. Morrison denied any wrongdoing, and the allegations were never proven.

Morrison, the Republican-turned-Democrat district attorney of Johnson County, defeated Kline 59 percent to 41 percent.

In the campaign, Morrison criticized Kline repeatedly over the investigation into the clinics, saying Kline was abusing his power.

In his statement today, Kline said the appointment of McKinney would preserve the investigation once Morrison takes over the attorney general’s office.

“This appointment of an independent special prosecutor will remove this investigation from a highly charged political process in which millions of dollars has been spent in media and campaign efforts to elect as attorney general a candidate who, without reviewing any of the evidence, repeatedly pledged not to pursue this investigation and expended the majority of his campaign criticizing the existence of the investigation,” Kline said.

Kline acknowledged, however, that Morrison could fire the special prosecutor after taking office, but he urged him not to. Kline also said he would leave it up to McKinney whether to appeal Clark’s decision.

In a statement, Morrison spokeswoman Ashley Anstaett said that when Morrison takes office he will “assess all pending cases and appointments and make the appropriate decisions based on the evidence, the law and his proven judgment.”

Anstaett added: “Kansans expect more from their attorney general than grandstanding and political stunts – that’s why they voted for change. On January 8th, Paul Morrison will refocus the vast resources of the attorney general’s office on the people’s priorities.”

Meanwhile, abortion opponents said the fight was far from over.

“We won’t rest until Tiller is brought to justice for these crimes,” said Troy Newman, president of Operation Rescue.