Wisconsin Lawyer
Vol. 79, No. 9, September 2006

Construction & Public Contract Law Section Legislative Work Passes Muster

by Bruce Block

Amending state statutes can be a daunting task - particularly statutes such as the Wisconsin Lien Law (Wis. Stat. ch. 779). This law affects a wide array of parties with divergent interests and has seen relatively few changes since its enactment in 1973. The amendments to chapter 779 that Gov. Doyle signed into law in March 2006 were initiated by the State Bar of Wisconsin Construction and Public Contract Law Section.

In the mid-1990s, section members were becoming increasingly aware of chapter 779's shortcomings. Among other problems, there were discrepancies in definitions between the statute's private and public contracting sections, it was unclear if lienable rights extended to new types of participants in the construction delivery system (such as construction managers), and courts were interpreting certain provisions (such as those relating to notice and to improvement square footage calculations) in ways that were problematic for many players in the construction industry. In response, the section board created a Lien Law Committee in 1998 to identify industry concerns with chapter 779 and to develop proposed amendments. The committee was comprised of Kim Hurtado, chair, Ken Voss, O.K. Johnson Jr., and, later, Steve Slawinski.

Over an 18-month period, the committee polled all section members, interviewed representatives from virtually every trade organization related to the construction industry, analyzed chapter 779's legislative history, and reviewed the other 49 states' construction lien laws. The committee then reported its findings to the section board and proposed a series of procedural and substantive changes that it previewed with various trade organizations. Chapter 779 attempts to balance the interests of many different parties to a construction project; almost any change in the statute would likely shift (or be perceived as shifting) that balance, resulting in opposition to the change. Many trade organization representatives viewed the proposed changes as going too far. The committee quickly concluded that it needed to concentrate its efforts on adding clarity, removing ambiguities and inconsistencies, addressing changes within the industry, and retaining balance and fairness.

The committee regrouped, refined its proposals to adjust to the various constituencies' comments and concerns, and eventually developed a proposal that corrected important statutory shortcomings and passed muster with all major industry trade groups.

The effort to build consensus took substantial time and effort and was critical to the project's success. By the latter part of 2005, it was time to "go live." A proposed bill was drafted, circulated to the trade groups, and modified several times before it was presented to a sponsor. The Associated Builders and Contractors of Wisconsin Inc. lobbyist, John Mielke, coordinated the legislative process. Lisa Roys, with the State Bar's Government Relations department, also joined the effort and provided invaluable counsel and guidance. Senator David Zien and others introduced the bill in the Senate and it worked its way through the committees. By the spring of 2006 both chambers unanimously passed the bill, and Gov. Doyle signed it into law in March.

Many individuals played critical roles in making much-needed changes to chapter 779. The trade organizations were extremely helpful in providing valuable feedback and improvements, and the section board provided encouragement and reality checks. It was the committee members, however, who pulled the oars. Simply put, this project would not have come to fruition without the effort and commitment of Kim Hurtado, Ken Voss, O.K. Johnson Jr., and Steve Slawinski. The section is deeply indebted to these attorneys for their fine work.

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