The Public’s Right to Be Heard: Why Madison’s Ban on Public Comment at the Remand Hearing Violates Wisconsin Law
- Alex Saloutos
- 8 hours ago
- 13 min read
Updated: 47 minutes ago
In my previous post, I explained how Madison’s city attorney appears to be violating Wisconsin law by providing substantive legal guidance to council members during the remand of the Old Sauk Road rezoning. Today, I address an equally troubling issue: the city’s blanket prohibition on public participation at today’s remand hearing—a ban that appears to violate fundamental principles of due process and Wisconsin’s strong tradition of open government. I'm grateful to Diane Sorensen for first bringing this critical distinction discussed in this blog to my attention. Her insight that there’s a fundamental difference between introducing new evidence and making arguments based on the existing record helped crystallize the legal issues at stake.
Key Points:
Madison bars public comment at remand hearing while city staff privately coaches council members
City Attorney posted “confidential” memo publicly—but lied about when
Alder Ochowicz already announced the outcome: “I don't think it will be different”
The city violates the very law it claims to enforce: no new arguments allowed, except theirs
Residents who won in court are silenced; the city that lost gets to guide the decision
The Issue: A One-Sided Process
Following Judge Lanford’s remand order, City Attorney Michael Haas issued a memo to council members stating that “the public will not be able to make comments at the remand hearing.” This blanket prohibition creates a fundamentally unfair process: city staff can provide legal guidance to council members (itself problematic, as discussed in my previous post), while the winning petitioners and concerned residents are completely silenced.
This asymmetry is particularly troubling given that the remand exists because residents successfully proved the city violated the law. Having overcome the presumption of correctness that attaches to municipal decisions, they now face a process that systematically excludes their voice while the losing party—the city—gets to guide the proceedings through its attorneys.
The Shifting Story: From “Confidential” to “Transparent”
The city’s approach to this remand has been marked by troubling inconsistencies that digital forensics, documentary evidence, and witness accounts now reveal to be even more problematic than initially apparent. On June 11, when I inquired about the “educational materials” being provided to council members, I received revealing responses that expose the city's shifting narrative.
At 3:01 PM on June 11, I emailed City Attorney Haas asking whether the materials would be made public and whether the petitioners would have equal opportunity to provide input. An alder has now confirmed receiving the memo from the city attorney's office at 12:09 PM that same day—nearly three hours before my inquiry. By 4:34 PM, this alder had already informed me that they had received materials from the city attorney but were "not able to share" them due to their confidential status.
Five days later—on the eve of the remand hearing—Haas finally responded, claiming he had “drafted a response to your email Wednesday evening [June 11] and forgot to send it.” In that response, Haas wrote: “Our office is preparing a memo for the Council.”
But late last night, Haas sent another email that completely contradicts this timeline. He now claims that "We issued the memo to alders the afternoon of the 11th and the same day I received confirmation from our staff that the memo was posted to Legistar."
The document's metadata and content tell yet another story. When I downloaded the city attorney's memo from the city website and examined it in Adobe Acrobat, the document properties reveal:
Created: June 11, 2025 at 11:45 AM
Last Modified: June 12, 2025 at 7:30 PM
Even more revealing: The memo posted on the city's website still bears the header “Confidential Attorney Client Communication.” This is not the action of an office that decided to be transparent. If the city truly “realized that there was nothing in the memo that we would not convey in an open meeting” as Haas claims, why did they post it publicly while still marked as confidential attorney-client communication?
The metadata proves that Haas's claim about same-day public posting is false. The document was modified on June 12—a full day after Haas claims it was posted publicly. What was changed between the version sent to alders at 12:09 PM on June 11 and the version posted on June 12? We don't know, because the city has not been transparent about its modifications.
The evolving story becomes clear:
The memo was created June 11 at 11:45 AM and marked “Confidential Attorney Client Communication.”
A few minutes later at 12:09 PM it was distributed to alders as a confidential document.
After my inquiries, it was modified on June 12 at 7:30 PM.
It was then posted publicly—still bearing the confidential marking—creating the absurd situation of a publicly available “confidential” document.
This sequence reveals either stunning incompetence or deliberate deception. Either the city attorney’s office is so careless that they post confidential attorney-client communications to the public website without removing the confidential marking, or they’re being less than truthful about when and why they decided to make the document public.
These shifting explanations, demonstrably false timeline claims, and the bizarre decision to post a “confidential” document publicly raise serious questions about the city’s candor and competence. If the city attorney’s office cannot handle basic document management or tell the truth about when a document was posted, how can the public trust their handling of the substantive legal issues at stake?
The Legal Framework: What Wisconsin Law Actually Says
1. The Hartland Rule is Limited to Government Action
The city’s position appears to rest on a misreading of Hartland Sportsmen’s Club v. City of Delafield, 2020 WI App 44. That case established that on remand, “supplementation of the record by the government decision maker with new evidence or to assert new grounds is not permitted.” (emphasis added)
This prohibition isn't limited to new evidence—it explicitly includes new arguments, legal theories, or interpretations. The Wisconsin Court of Appeals specifically explained that this rule prevents “affording a government decision maker a.’ second kick at the cat' on remand.” The prohibition targets governmental bodies that lost in court, preventing them from rehabilitating their defective decision with either new facts OR new legal arguments.
Nothing in Hartland suggests that prevailing parties or the public lose their right to participate in remand proceedings. The asymmetric nature of the rule makes sense: it prevents the government from rehabilitating a defective decision while preserving the rights of citizens to ensure proper compliance with court orders.
2. Due Process Requires an Opportunity to Be Heard
Wisconsin courts have long recognized that quasi-judicial proceedings must provide basic due process protections. In State ex rel. Storer Broadcasting Co. v. Gorenstein, 131 Wis. 2d 342 (Ct. App. 1986), the court emphasized that in quasi-judicial proceedings, “The parties, and members of the public present in court, may appear at such hearing.”
The Storer court went further, stating that “if a trial court fails to conduct a hearing, that in itself is an abuse of discretion.” While the city is conducting a hearing, completely excluding public participation may be tantamount to no hearing at all for affected residents.
As the Wisconsin courts have recognized, quasi-judicial proceedings must include “Providing everyone with an interest in the proceedings an opportunity to be heard and to hear what others have to say.” This principle extends beyond just the named parties to include affected members of the public.
3. Wisconsin’s Open Government Tradition
Wisconsin has a strong tradition of open government. As the Court of Appeals noted in Storer, “[The Wisconsin] supreme court has stated that.’ the right of public access to the courts is not a right to be taken lightly.’ The purpose of sec. 757.14, Stats., is to protect the right of the people to an open and responsible government.”
This tradition extends to administrative and quasi-judicial proceedings. The Wisconsin Open Meetings Law reflects the legislature’s recognition that “The public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of government business.”
The Critical Distinction: Evidence vs. Argument
Perhaps most importantly, the city’s ban fails to distinguish between introducing new evidence (which is prohibited) and making arguments based on the existing record (which should be permitted).
What the Law Actually Prohibits
The Hartland decision prohibits “supplementation of the record... with new evidence.” Judge Lanford’s order similarly states: “On remand, the City may not supplement the record with new evidence.”
This makes sense—the court has determined what facts were before the council on June 18, 2024, and those facts cannot be changed.
What the Law Should Permit
However, explaining how the existing record demonstrates non-compliance with the Comprehensive Plan is not “new evidence"—it’s legal argument. This distinction is crucial and well-established in Wisconsin law.
In Thompson v. Dane County, 2023 WI App 45, the court found that “Proposed Findings” were acceptable on remand because “they purported to summarize evidence that was already in the record.” The court explained that helping the decision-maker understand how existing evidence relates to legal standards is not the same as introducing new evidence.
Consider the practical implications: If residents cannot point to specific evidence in the record and explain why it shows non-compliance with the Comprehensive Plan, how can they ensure the council properly applies the correct legal standard? If only city staff can make these connections, the process becomes a one-sided charade.
The City’s Double Violation
Here’s the profound irony: While completely banning public participation based on a misreading of Hartland, the city itself appears to be violating Hartland’s actual prohibition. The city attorney’s memo—as detailed in my previous post—provides new legal interpretations, cherry-picks selective factors from the Comprehensive Plan, and offers novel arguments about how stormwater should be considered. These are precisely the kind of “new grounds” that Hartland prohibits the government from asserting on remand.
The city is thus guilty of a double violation:
Misapplying Hartland to silence the public and prevailing parties.
Actually violating Hartland by asserting new legal arguments through its “educational materials.”
This creates the worst possible scenario: the government rehabilitates its case with new arguments while preventing anyone from pointing out that it’s doing so.
The City's Strategic Supplementation of the Record
While claiming to prohibit new evidence, the city has systematically supplemented the record in ways that advantage its position:
Selective Transcription: The city attorney’s memo includes a transcription of Plan Commissioner Solheim’s supportive comments about the project—testimony that was not part of the original council record. This conveniently provides alders with a template for finding compliance with the Comprehensive Plan.
“Clarifying” New Facts: Despite stating that developments after June 18, 2024 “cannot be considered,” the memo proceeds to discuss subsequent events including additional lawsuits and permit issuances. It then mentions that the project now has an approved stormwater management plan from May 2025—acknowledging this is “new evidence” while ensuring alders know about it.
Reframing the Legal Standard: The memo reduces Planning staff's four-factor analysis to “three primary factors,” potentially allowing the council to ignore considerations that might weigh against approval. This selective presentation of the legal framework itself constitutes the kind of “new grounds” that Hartland prohibits.
Highlighting Supportive Analysis: The city has added to the record a staff report with the rezoning portion highlighted—a document that was buried in attachments during the original proceedings but is now prominently featured to guide the council’s decision.
These actions demonstrate that the city understands the power of framing and supplementation. Yet while engaging in these practices itself, it denies residents even the opportunity to point to evidence already in the record.
The Setup: How Staff Will Guide the Outcome
The structure of today’s remand hearing reveals how the city has stacked the deck. According to Haas's latest email, the meeting will begin with council members asking questions of staff. This creates yet another opportunity for staff to advocate for their preferred outcome.
Consider what the city has done to ensure the outcome won't change:
Provided a roadmap to approval: The Planning Division’s original staff memo essentially guides the council to find that increased density is appropriate, concluding that “it is possible that Plan Commission and the Common Council could find that the development of a three-story 138 unit (now increased to 144 units) multi-family dwelling on the subject site is consistent with the factors listed in the Comprehensive Plan.” The memo even states that “Staff does not believe that all of the select conditions ... have to be present in order for the larger and denser building form to be allowed.”
Highlighted only supportive analysis: The city attorney’s memo could accurately be titled “How to Analyze the Evidence to Support a Finding that Increased Density is Consistent with the Comprehensive Plan.” It points council members to only one analysis of the select factors—Commissioner Solheim's analysis supporting rezoning—while ignoring any contrary perspectives.
Created opportunities for staff advocacy: By beginning with questions to staff, the city ensures that staff can “enlarge their arguments” (to use the court's language from Hartland) and guide council members toward the predetermined conclusion.
The city claims these steps will “hopefully avoid any perception that we were attempting to advocate for a decision or secretly convey new evidence.” But actions speak louder than words. When you provide a one-sided legal memo, highlight only supportive analysis, and give staff the first opportunity to frame the discussion—all while excluding the public—the perception of advocacy becomes reality.
Prejudgment Concerns: Has the Outcome Already Been Decided?
Adding to the procedural problems, at least one council member appears to have prejudged the remand before it even occurs. Alder Will Ochowicz told Isthmus: “If it’s just remanding to consider additional criteria, that doesn't seem like it would be very difficult to do. And I don't think the outcome will be different.”
This statement raises serious concerns under Wisconsin law. In Marris v. City of Cedarburg, 176 Wis. 2d 14 (1993), the Wisconsin Supreme Court held that decision-makers must recuse themselves when they have prejudged a case, creating an “impermissibly high risk of bias.” The court explained that statements “suggesting that a decision has already been reached” require recusal to ensure due process.
Consider what Ochowicz’s statement reveals:
He’s already concluded he does not think “the outcome will be different” before the remand hearing.
He minimizes the court’s order as “just” considering additional criteria.
He’s publicly announced his predetermined position.
This is precisely the type of prejudgment that Wisconsin courts have found violates due process. As the Marris court noted, “Impartial decision-makers do not ‘get’ the parties before them,” but rather “objectively apply the law to the facts of each case.”
When a council member announces to the press that they don't think the outcome will change, they're essentially saying the remand hearing is a meaningless formality. This transforms what should be genuine reconsideration into a predetermined rubber stamp—exactly what the court prohibited.
The proper response would be for Ochowicz to recuse himself. His public statement that the outcome won't change suggests he’s not prepared to genuinely consider whether the application meets the Comprehensive Plan’s requirements.
Real-World Examples of Appropriate Public Comment
To illustrate the distinction, here are examples of what should be permitted at the remand hearing.
Permitted argument based on existing record:
“The traffic study on page 247 of the record shows that Old Sauk Road already exceeds capacity during peak hours, which demonstrates the project lacks adequate ‘access to urban services’ as required by the Comprehensive Plan.”
“Commissioner Solheim’s testimony at page 491 acknowledged that the site has flooding issues, which constitutes a 'natural feature' that the council failed to consider.”
“The density of 36.6 units per acre shown in the application at page 574 exceeds the 30-unit baseline, yet the council never discussed whether the three required factors were met.”
Prohibited new evidence:
“Here’s a new traffic study I commissioned last week...”
“Let me tell you about flooding that happened after June 18, 2024...”
“I have additional photos of the property...”
The distinction is clear: explaining what the existing evidence means is argument; introducing facts not in the record is new evidence.
The Troubling Implications
The city’s approach creates several troubling implications:
1. Unequal Access to Decision-Makers
While residents are silenced, city staff have had a week to meet privately with council members, providing “educational materials” that we now know contain substantive legal advocacy. This ex parte communication with one side while excluding the other violates basic notions of fairness.
While residents are silenced, city staff have had a week to meet privately with council members, providing "educational materials" that we now know contain substantive legal advocacy. The record is being supplemented not just with the attorney's memo, but also with a "fresh highlighted copy" of the staff memo that demonstrates an analysis supporting rezoning. This ex parte communication with one side while excluding the other violates basic notions of fairness.
2. No Check on Mischaracterization
If the public cannot speak, who will correct mischaracterizations of the record? What if city staff incorrectly summarizes evidence or omits crucial facts? The adversarial process exists precisely to ensure decision-makers hear all perspectives on what the evidence shows.
3. Undermining Public Trust
When government excludes public participation while allowing insider influence, it undermines faith in democratic governance. This is especially problematic when the exclusion comes after residents proved the city violated the law.
What Should Happen Instead
A fair remand process would:
Allow Public Argument: Permit residents to explain how specific evidence in the record relates to the Comprehensive Plan requirements.
Distinguish Evidence from Argument: Clearly state that while no new facts can be introduced, arguments about what the existing facts mean are appropriate.
Ensure Equal Access: If city staff can guide council members, the public should have equal opportunity to present their perspective.
Focus on the Legal Standard: Use public comment to help council members understand how to apply the Comprehensive Plan factors to the existing record.
The Wisconsin Supreme Court’s Guidance
The Wisconsin Supreme Court has provided clear guidance on remand proceedings. In Marris v. City of Cedarburg, 176 Wis. 2d 14 (1993), the court explained that on remand, the municipal body “must engage in fact-finding and then make a decision based on the application of those facts to the ordinance.”
Crucially, the court added that the council must “express, on the record, its reasoning why an application does or does not meet the statutory criteria.” How can the council develop proper reasoning if it only hears from one side?
Constitutional Concerns
Beyond Wisconsin law, the city’s approach raises federal constitutional concerns. The Due Process Clause requires notice and an opportunity to be heard in quasi-judicial proceedings. As the U.S. Supreme Court explained in Mathews v. Eldridge, 424 U.S. 319 (1976), due process is flexible but must include “the opportunity to be heard.’ at a meaningful time and in a meaningful manner.'"
Excluding the prevailing parties and affected residents from a remand hearing—while allowing city staff to guide the decision-makers—hardly constitutes a “meaningful” opportunity to be heard.
Conclusion: A Test of Madison’s Commitment to Law
Today’s remand hearing will test whether Madison truly respects the rule of law or merely pays it lip service. Will the city follow Judge Lanford’s order in both letter and spirit, or will it use procedural gamesmanship to exclude the very residents who proved it violated the law?
The choreography of this remand hearing—beginning with staff questions, providing only supportive analysis, excluding public participation—suggests the outcome has already been determined. The city has transformed what should be genuine reconsideration into a scripted performance where only one side gets speaking parts.
Update: As this blog posts on the afternoon of the remand hearing, the city has maintained its position that no public comment will be allowed. If you enjoy this content, please like and share. For questions and media inquiries, email asaloutos@tds.net or call (608) 345-9009.
© Alex Saloutos 2025.