A Sedgwick County judge dropped misdemeanor charges today against Wichita-based abortion provider George Tiller at the request of the district attorney, who said that Kansas’ top law enforcement official overstepped his authority.

Judge Paul Clark granted District Attorney Nola Foulston’s request to drop 30 charges filed Thursday by Attorney General Phill Kline, a vocal abortion opponent.

Kline added to the legal jousting by announcing this afternoon that he’ll file an emergency motion for the judge to reconsider “what we believe is a flawed decision.”

Although the attorney general is the chief law enforcement officer in the state, Foulston said that Kline cannot pursue charges in a particular county without being invited by the local prosecutor to do so, or without authority from the governor.

“The statutes and case law are clear,” Foulston said in a statement released by her office this afternoon.

“The district attorney has not invited or requested, consented or acquiesced, or failed to object to the filing of the complaint,” Foulston’s office added. “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.”

Foulston said she’d received no word from Gov. Kathleen Sebelius allowing Kline to file charges in Sedgwick County District Court.

That’s because Sebelius didn’t.

“I can tell you with absolute certainty the governor did not” consent to the charges, said Nicole Corcoran, the governor’s spokeswoman. “This is a basic rule governing the office of the attorney general, and it’s rather surprising he doesn’t know that.”

During a news conference this afternoon, Kline said he had met with Foulston, told her of his intentions and she had not questioned his decision.

Kline was trying to fend off a day of criticism.

It began with Tiller finding a summons to appear in court stuck in the door of his home overnight.

Kline had apparently filed the charges under seal at 4:37 p.m. Thursday. But Tiller didn’t find the summons until the next morning.

Tiller’s lawyers called a press conference before noon, saying they expected the case to be dismissed and sharply criticizing Kline’s actions with three weeks left of his office, after voters denied him re-election last month.

“The filing of criminal charges by Phill Kline is the last gasp of a defeated and discredited politician,” Lee Thompson said from his law office in Wichita. “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.”

The charges include allegations that Tiller performed late-term abortions anywhere from 25 to 31 weeks of gestation.

To perform abortions after 22 weeks of gestation, the provider must show a health risk to the pregnant woman, under case law from the U.S. Supreme Court. The Kansas Supreme Court has ruled that such risks include the mental health of the woman.

The charges include claims that Tiller misdiagnosed a variety of mental illnesses and disorders in those late-term abortions and did not properly report them to the Kansas Department of Health and Environment.

“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,” Dan Monnat, a criminal defense lawyer who represents Tiller, told The Eagle after the complaint had been unsealed. “And each secondary count is some hypertechnical bizarre view of the state’s reporting requirement.”

By 12:50 p.m. today, Clark had signed the order.

Monnat said he and Thompson, a former U.S. attorney, had contemplated the legality of Kline’s dealings with the Sedgwick County court but had not discussed the matter with Foulston.

“We were pleasantly surprised by the courageous actions of the district attorney,” Monnat said. “Really, there were multiple legal grounds on which to get this dismissed. 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.”

Voters overwhelmingly rejected Kline in the Nov. 7 general election. Paul Morrison, the Johnson County district attorney who switched parties to take him on as a Democrat, assumes office Jan. 8.

Abortion proved one of the biggest issue in Kline’s campaign. Republicans recently chose Kline to replace Morrison as Johnson County district attorney.

Over the years, Kline has investigated whether Tiller and other abortion providers have performed illegal late-term abortions and have failed to report suspected child abuse as required by law.

Tiller’s clinic is the site of daily protests. He has also be the target of violence: His clinic was bombed in 1985 and he was shot by a protester in 1993.

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

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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