Karl Spillman Forester

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Karl Spillman Forester
Senior Judge of the United States District Court for the Eastern District of Kentucky
In office
May 2, 2005 – March 29, 2014
Chief Judge of the United States District Court for the Eastern District of Kentucky
In office
2001–2005
Judge United States District Court for the Eastern District of Kentucky
In office
July 27, 1988 – May 2, 2005
Appointed by Ronald Reagan
Preceded by Green Wix Unthank
Personal details
Born (1940-05-02)May 2, 1940
Harlan, Kentucky
Died March 29, 2014(2014-03-29) (aged 73)
Lexington, Kentucky
Spouse(s) Tarasa T. Forester
Alma mater University of Kentucky, B.A., 1962
University of Kentucky College of Law, J.D., 1966

Karl Spillman Forester (May 2, 1940 – March 29, 2014) was a United States District Judge of the United States District Court for the Eastern District of Kentucky.

Background[edit]

Born in 1940 at Harlan, Kentucky,[1] Forester received a B.A. from the University of Kentucky in 1962 and a J.D. from the University of Kentucky College of Law in 1966. He was in private practice in Harlan, Kentucky from 1966 to 1988.

Federal Judge[edit]

On March 30, 1988, Forester was nominated by President Ronald Reagan to a seat on the United States District Court for the Eastern District of Kentucky vacated by G. Wix Unthank. Forester was confirmed by the United States Senate on July 26, 1988, and received his commission on July 27, 1988. He served as chief judge from 2001 to 2005, assuming senior status on May 2, 2005.

Notable Cases[edit]

Comair Flight 5191[edit]

Judge Forester allowed for a widow of a Louisiana man to file a claim against Comair after the Kentucky Supreme Court ruled in favor of the legality of the action on October 12, 2009. This ruling comes after the October 7, 2009 ruling by Kentucky's highest court which allowed a spouse to sue for loss of physical and emotional companionship challenging current Kentucky law that only allows such remedy if the spouse was incapacitated but not if the spouse died. No word has been told of any proceeding action in federal court.[2]

Bid rigging case[edit]

On July 9, 2009, Judge Forester asked federal prosecutors and defense attorney to limit new filings during the 60 days before the trial of highway contractor Leonard Lawson, former Kentucky Transportation Secretary Bill Nighbert and Lawson's aide Brian Billings. Forester said the ruling was to limit the jury pool's exposure to news stories that would be written about any last-minute developments between the two sides.[3]

"There would be little or no coverage before the trial," Forester told the lawyers regarding his plan for a moratorium on filings.[3]

Larry Mackey, an attorney for Leonard Lawson, told Judge Forester it was a "great idea" but said, "it may not be possible to fulfill because there may be a need to bring something before the court even up to the eve of trial." In regards to Mr. Mackey's concerns, Judge Forester said he would allow for emergency exceptions for any side to issue a new filing.[3]

Lawson, Nighbert and Billings are accused of conspiracy to steer $130 million of highway construction contracts to companies owned by Lawson which prosecutors claimed it circumvented the competitive bidding process.[3] All three defendants have entered not guilty pleas.

Judge Forester also asked reporters, during a private meeting for their news organizations, to voluntarily withhold any stories about the trial during the days leading up to jury selection. The reporters said they would relay the judge's request to their respective editors/assignment managers. Judge Forester's orders to the media have raised issue by Kentucky journalists. David Thompson, executive director of the Kentucky Press Association claimed that Judge Forester's request is uncommon. Thompson said: "Obviously people have expressed concerns about fair trials, pre-press publicity and that sort of thing, but I've never heard of that," said Thompson. "I don't know of anyone that would agree with something like that."

On January 26, 2010, Judge Forester dismissed bribery charges against both Lawson and Nightbert ending a trial that began in the first part of January. The bribery charges were dropped after the judge felt there was not enough evidence beyond a reasonable doubt to convict the former Kentucky DOT Secretary and a construction company executive in engaging in bid rigging. The judge is also considering to drop other charges including conspiracy and obstruction of justice.[4] Forester is the father-in-law of Sean Cutter, a Frankfort lobbyist whose clients include the Kentucky Association of Highway Contractors. Leonard Lawson owns companies that are members of the association, while his son Steve Lawson is a former president of the association. Even in light of this conflict of interest, Forester would not recuse himself from the case.

Kelco[edit]

In another high-profile case, Kelco, Inc., a viatical settlement company once based in Lexington, KY has been at the center of a 10-year-long legal battle involving insurance giants such as the disgraced AIG and the Federal Government.

In August 2008, Michael S. Pasano, attorney for Stephen L. Keller, the former CEO of Kelco Inc. filed a motion in the United States District Court For The Eastern District of Kentucky, with Judge Karl S. Forester, to dismiss Keller’s convictions for conspiracy, fraud and money laundering. Keller’s convictions resulted from Kelco purchasing life insurance policies from HIV/AIDS patients who lied on their applications. While Kelco’s actions were not illegal, the patients committed fraud in obtaining these policies. The burden falls on the insurance companies to exercise due diligence and to properly evaluate applicants before issuing a policy. Two appellate courts have affirmed through the McCarran-Ferguson Act that states and not the Federal Government have jurisdiction over regulation of viatical settlement companies and the insurance industry. Because Kelco operated within the bounds of Kentucky law, no crime was committed, and Keller has yet to receive a decision on his motion.

Two landmark appellate cases back up Keller’s motion. The crucial intervening case was a 2006 decision of the Fourth Circuit Court of Appeals in Life Partners, Inc. v. Morrison. The appellate court ruled that Virginia's Viatical Settlements Act, a direct analogue of Kentucky's Act, derived from the same model law came within the scope of the McCarran-Ferguson Act. The Fourth Circuit held that “the viatical settlement is not collateral to the life insurance policy. Rather, it modifies it, changing the parties' obligations and benefits, while yet leaving the insurance i.e., the transfer of the specific risk in place. At its essence, a viatical settlement is transaction that fractures the two-part insurance contract between the insurer and the insured and creates a new tripartite arrangement among the insurer, the insured, and the insured's assignee the viatical settlement provider. All of these matters, and more, regulated by the Virginia Viatical Settlements Act surely "relate to" the business of insurance in that they regulate the new ordering of the tripartite insurance arrangement involving the insurer, the insured, and the viatical settlement provider.”

The Fourth Circuit's holding was reinforced by the consonant decision of the Northern District of Georgia in National Viatical, Inc. v. Oxendine, which was affirmed on appeal by the Eleventh Circuit in 2007. The court determined that the McCarran-Ferguson Act applied to Georgia's implementation of the Model Life Settlement Act, the model upon which the Kentucky Viatical Act was based is a precursor of the Life Settlement Act.

Two appellate courts have handed down decisions which should exonerate Keller yet Circuit Judge Karl S. Forester, the judge who has presided over the case through its inception, has yet to rule on Keller’s motion. Forester ironically approved the forfeiture of Kelco-owned policies that were fraudulently-obtained by HIV/AIDS patients. The Government ultimately resold the policies on the living patients and collected death benefits on the deceased patients.

  • Assistant U.S. Attorney Patrick H. Molloy, prosecuted the case before Forester, even though Molloy's ex-wife had been a Kelco employee.

On November 12, 2010 Judge Forester denied the Motion to Vacate. He did so after abandoning that Court's standard procedure of referring the motion to a magistrate, which would result in a Report and Recommendation. Either side of the controversy then could file objections before the judge ruled. Judge Forester also refused the request for an evidentiary hearing. His memorandum and order ignored the rulings cited in the 2255 that supported states' rights to regulate viatical transactions and, after noting that Keller's potential expert witness, Gloria Grening Wolk, submitted a 12-page affidavit with 15 exhibits he ignored the stated facts, described her as "a self-professed expert" and said she offered nothing of merit. v Wolk immediately filed a complaint against Judge Forester with the Judicial Council (Sixth Circuit).

On January 10, 2011 Keller's new attorney, Michael Pasano, filed a motion for certificate of appealability with Judge Forester. Forester must either issue the certificate—permission to appeal the denial of the 2255—or refuse. It is now more than seven years since Keller was incarcerated for a non-existent crime.

Death[edit]

He died on March 29, 2014 in Lexington, Kentucky at the age of 73.[5]

Sources[edit]

References[edit]