Kansas Attorney General Phill Kline overstepped his authority by filing criminal charges against Wichita abortion provider George Tiller, a Sedgwick County district judge ruled Friday.

Judge Paul Clark granted District Attorney Nola Foulston’s request to drop 30 misdemeanor charges against Tiller, after she argued that Kline did not have jurisdiction in the case.

Kline’s complaint, filed Thursday afternoon and signed by Judge Eric Yost, accused Tiller of performing 15 illegal late-term abortions and not properly reporting those procedures to state health officials.

Kline said Friday afternoon that he intended to file an “emergency motion for reconsideration” of the dismissal. It was unclear whether he succeeded by the time the Sedgwick County Courthouse closed for the Christmas holiday weekend.

The case created a news roller coaster on Friday.

Kline had filed the charges under seal at 4:37 p.m. Thursday. But Tiller didn’t receive the notice until Friday morning — when he found a court summons on the front door of his house, his lawyers said.

Tiller’s lawyers called a news conference before noon, saying they expected the case to be dismissed next week and sharply criticizing Kline’s actions. Kline has less than three weeks left in office; voters denied him re-election.

“The filing of criminal charges by Phill Kline is the last gasp of a defeated and discredited politician,” said Lee Thompson, who represents Tiller. “Rather than exercising his duty as a prosecutor to see that justice is done, he has chosen to engage in a malicious and spiteful prosecution on the eve of Christmas.”

Thompson didn’t know Foulston was already preparing to have the charges dropped on the basis of jurisdiction.

The attorney general is the chief law enforcement officer in the state, but under Kansas law he cannot pursue a case without the consent of the local prosecutor.

“The district attorney has not invited or requested, consented or acquiesced, or failed to object to the filing of the complaint,” Foulston told the judge in a court filing. “The district attorney does in fact object to any such filing by the Attorney General, as he lacks the legal authority to file such complaint in this jurisdiction.”

She did not address the allegations made in the criminal complaint.

By 12:50 p.m., Clark had signed the order to dismiss the charges.

At 1:20 p.m., Foulston’s office e-mailed copies of her filing to local news reporters.

During his own news conference at 3 p.m. Friday in Topeka, Kline said that he had met with Foulston before filing charges, and that she had not questioned his decision.

The charges included allegations that Tiller performed abortions at 25 to 31 weeks of gestation, misdiagnosed a variety of mental illnesses and disorders in those cases and did not properly report them to the Kansas Department of Health and Environment.

A few weeks ago — after a two-year legal battle — Kline obtained the records of 90 patients from Tiller’s clinic and from a clinic in Overland Park operated by Planned Parenthood of Kansas and Mid-Missouri.

The U.S. Supreme Court has said abortions after 22 weeks of gestation must be intended to reduce a health risk to the mother. The Kansas Supreme Court has ruled that such risks include the mental health of the woman.

Kline said what he saw in the medical records did not constitute “a finding of substantial and irreversible damage to a major bodily function of the mother” as the law requires for a late-term abortion.

“Kansas law only allows a post-viability abortion if the mother’s life is in jeopardy,” Kline said, “which has happened in zero instances in Kansas according to reports over the past numerous years.”

Dan Monnat, a criminal defense lawyer who represents Tiller, told The Eagle: “You can see each primary count is Phill Kline’s disagreement with the notion that a woman’s mental health can be considered in a abortion determination. And each secondary count is some hypertechnical bizarre view of the state’s reporting requirement.”

Monnat said he and Thompson, a former federal prosecutor, had contemplated the legality of Kline’s dealings with the Sedgwick County District Court but had not discussed the matter with Foulston.

“Really, there were multiple legal grounds on which to get this dismissed,” Monnat said. “Factually, Dr. Tiller is innocent of any wrongdoing, so a motion to dismiss should be granted on that basis. Nola has now found the legal flaw in the attorney general’s parting action, which resulted in an expeditious dismissal.”

Paul Morrison, the Johnson County district attorney who switched parties to take on Kline as a Democrat and who assumes office Jan. 8, questioned the way Kline handled the case without consulting him.

“I just don’t think it was a very professional way to do it,” Morrison said. “I would never file a very involved and controversial case and leave it for somebody else to have to deal with.”

If charges against Tiller are reinstated, as Kline hopes, Morrison said he will evaluate the charges before deciding how to proceed.

“We’ll look at them and evaluate them and make a decision about what to do,” he said. “It’s hard for me to talk about the merits of the case because I haven’t seen it.”

Said Thompson: “Attorney General Morrison is an experienced prosecutor. With him, I expect we can deal with him as we would with any other experienced, credible professional prosecutor.”

Kline is nationally known as an anti-abortion advocate, and it proved a touchstone issue in his campaign. A committee of Republicans recently chose Kline to replace Morrison as Johnson County district attorney.

When asked at his news conference if he had “work on this to do in Johnson County,” Kline answered:

“No comment. I will mention that the investigation is ongoing.”

Reach Ron Sylvester at 316-268-6514 or [email protected].
Contributing: Fred Mann and Hurst Laviana of The Eagle; Steve Vockrodt of the Olathe News reporting from Topeka.

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