SENATORS: DEFEND FUNDING PLAN; MONEY TO PLANNED PARENTHOOD AT ISSUE

Two state senators have asked Missouri Attorney General Jay Nixon to appoint independent counsel or a special assistant attorney general to defend the constitutionality of a law denying family planning money for Planned Parenthood.

Sens. Steve Ehlmann, R-St. Charles, and John Schneider, D-Florissant, made the request in a letter Thursday to Nixon.

Ehlmann is the minority floor leader and Schneider is a leading Democrat in the Senate.

The senators said Nixon's office didn't defend the funding ban enacted by the Legislature and signed into law by Gov. Mel Carnahan as part of the fiscal 1998 budget.

A federal district judge recently struck down the ban after the state went to court to seek a ruling on the new law.

Mary Still, Nixon's communications director, said the attorney general's office is reviewing the letter.

Two area lawmakers applauded the request for an independent counsel. Both Sen. Peter Kinder, R-Cape Girardeau, and Rep. David Schwab, R-Jackson, said Nixon and Gov. Mel Carnahan should have defended the new law instead of sabotaging it.

Kinder called it "a conspiracy" between the governor and the attorney general to undermine a duly enacted law. "It is an outrageous and unprecedented abuse of power," he said.

The Legislature has tried to bar funding for Planned Parenthood for the past two years. In 1996, abortion provider Planned Parenthood won a federal lawsuit challenging its exclusion from receiving family planning money from the state.

This year, state lawmakers approved different legislation designed to keep Planned Parenthood from getting family planning money.

Carnahan, who supports abortion rights, signed the budget with the restrictive language. But the governor immediately requested Nixon ask U.S. District Judge Fernando Gaitan Jr. to decide if the new law violated his ruling of a year ago.

The judge concluded that it did. The ruling followed a telephone conference call on June 30 with Bob Presson of the attorney general's office and two lawyers representing Planned Parenthood.

According to a transcript of the session, Presson told the judge that parts of the spending bill appeared to be constitutional such as not allowing Planned Parenthood to use any of the funds for abortion.

"But the rest of it is a little unclear and that's why we have asked for the motion to clarify," Presson told the judge.

Kinder said Nixon has an obligation to defend state laws, not undermine them. He said he and other lawmakers might go to court to fight for the funding ban if Nixon turns down the senators' request.

Earlier this week, the Senate Administration Committee rejected Ehlmann's suggestion that his chamber hire an outside lawyer to challenge the federal ruling.

Ehlmann has read the transcript of the conference call. "It looks to me like they were almost a neutral third party," he said.

Said Ehlmann: "This isn't about abortion. It is not even about whether the judge got it right in this particular case. The issue is really about the process."

Schwab said the actions of Carnahan and Nixon were as good as a veto.

Ehlmann said if the attorney general's office won't defend new state laws then perhaps the Legislature should consider setting up an agency to handle that task.

Kinder, Ehlmann and Schwab said Nixon should have appealed the federal district court ruling last year rather than let it stand.

Ehlmann said that if Carnahan felt the new restriction was unconstitutional, he should have vetoed the measure.

Once the bill was signed into law, the state should have assumed it was constitutional and enforced the funding ban, he said.

Still, Nixon's spokeswoman, defended the actions of the attorney general's office.

She said the legal question was whether the previous injunction applied to the new state law.

"We have a responsibility to see that state officials are not held in contempt of court," she said.

In this case, Nixon's office was representing the Missouri Department of Health, which handles family planning money.

"Last year we represented the Legislature and we lost that case," Still said. "We have to deal with the law and the legal issues at hand," she said.

Still said the attorney general's office does its best to represent state government and state agencies.

"Jay Nixon does not send lawyers into the courtroom with one hand tied behind their back," she said.

"We don't look at it as politics. We go in on legal issues, and we are aggressive," Still said.