TOPEKA – Only a few days before he loses his job, outgoing Attorney General Phill Kline’s special prosecutor asked the Kansas Supreme Court on Friday to reinstate criminal charges against the state’s most visible abortion doctor.

The special prosecutor, Wichita attorney Donald McKinney, was appointed by Kline to handle the prosecution of George Tiller. Tiller operates a Wichita clinic and is among the few doctors in the nation to perform late-term abortions.

Kline, an abortion opponent, leaves office Monday after losing the November general election to Johnson County District Attorney Paul Morrison, an abortion rights supporter who switched to the Democratic Party to run against Kline.

Asked why he would file his petition days before being fired, McKinney said: “It’s like a relay. You get handed the baton, and you do your best until you hand it off. I haven’t handed it off.”

Kline alleges that Tiller performed 15 illegal late-term abortions in 2003 on patients aged 10 to 22 and failed to properly report the details about the procedures to state health officials. Tiller’s attorneys have said the charges are unfounded.

Sedgwick County District Judge Paul Clark dismissed Kline’s 30 misdemeanor charges against Tiller two weeks ago, then refused to reinstate them last week, over a jurisdictional issue.

McKinney named Clark and Sedgwick County District Attorney Nola Foulston in the motion he filed.

Foulston had sought to have the charges against Tiller dismissed, arguing successfully that Kline had no authority to file them because he did not obtain her permission first. Kline contends Foulston’s permission isn’t necessary.

“The judicial system of this state cannot function properly if loose cannon local prosecutors can hijack a case from the attorney general and then dismiss the charges to protect their friends or political allies,” McKinney said Friday.

Abortion opponents have accused Foulston, a Democrat, of intervening to protect Tiller. She has said she is only trying to protect her authority as an elected official to determine what’s prosecuted in Sedgwick County — and has asked Kline to forward the evidence he has against Tiller so she can review it.

But McKinney called her actions “extraordinary conduct” that “destroys equal justice.”

In a memo he filed with the Supreme Court, McKinney wrote, “Foulston had no lawful authority to interfere with the action of the attorney general.”

While Morrison has said he will examine the evidence involving Tiller, he also has said he won’t retain McKinney, who led a Democrats for Kline group during the campaign and has protested outside Tiller’s clinic.

Foulston spokeswoman Georgia Cole said the district attorney had not seen McKinney’s filing. Nor had Dan Monnat, a Wichita attorney representing Tiller.

“We’re not surprised that the publicity stunts of the AG and his so-called independent, so-called special prosecutor continue up to the very last minute of the attorney general’s tenure,” Monnat said. “From a legal standpoint, these recent stunts are nothing more than legal floundering on their point.”

Reach Suzanne Perez Tobias at 316-268-6514 or [email protected]

Contributing: Associated Press

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