When “Educational Materials” Become Legal Advocacy: How Madison’s Remand Memo Violates Court Orders and Wisconsin Law
- Alex Saloutos
- Jun 15
- 12 min read
Updated: Jun 16
Key Points
The contradiction revealed: Court bans “new evidence,” city provides substantive legal advocacy disguised as “education."
The legal violation: City attorney memo appears to directly violate Wisconsin precedent prohibiting “new grounds” on remand.
The double standard: Winning residents silenced, losing city gets to “re-argue” their case through attorney guidance.
The deeper problem: Staff guidance functions as advocacy, not objective analysis.
The bottom line: City appears to be circumventing court orders through semantic games.
The recent court remand of the Old Sauk Road rezoning decision has highlighted troubling questions about legal compliance and procedural fairness at city hall. While Alder John Guequierre’s recent blog post provides helpful background on what a remand means, it inadvertently reveals a potential contradiction that, upon examination of the city attorney’s actual memo to the council, turns out to be far worse than a mere transparency problem—it appears to be a direct violation of Wisconsin law.
What Happened: A Brief Summary
In April 2024, Stone House Development applied to rezone properties at 6610-6706 Old Sauk Road to allow construction of a 138-unit apartment building. The project required changing the zoning from SR-C1 (Suburban Residential–Consistent 1 District) and SR-C3 (Suburban Residential–Consistent 3 District) to TR-U2 (Traditional Residential–Urban 2 District) and increasing the housing density from the normal limit of 30 units per acre to 36.6 units per acre.
The properties are located in an area designated as “Low-Medium Residential” in the city’s Comprehensive Plan, which allows higher density only under special circumstances. Specifically, the plan requires consideration of factors including “relationships between proposed buildings and their surroundings,” “natural features,” and “access to urban services, transit, arterial streets, parks and amenities.”
During the June 10, 2024 Plan Commission meeting, residents raised concerns about flooding and stormwater impacts. Commissioner Solheim analyzed why she believed the project met the Comprehensive Plan requirements, and the commission unanimously recommended approval. Eight days later, on June 18, 2024, the Common Council approved the rezoning by a 15-4 vote. When city planner Kevin Firchow attempted to discuss the required factors, the council immediately redirected the discussion and appears to have largely ignored them.
Four residents—Jeffrey Western, Kathy Western, Paul Umbeck, and Mary Umbeck
—challenged the city’s decision in court, arguing that the council failed to properly consider the factors required by the Comprehensive Plan before approving the higher density.
The Court’s Rebuke
Judge Lanford’s decision was a sharp rebuke of the council’s conduct during the June 18 meeting. The court found that when city planner Kevin Firchow attempted to discuss the Comprehensive Plan factors required by law, “the council immediately redirected the discussion and appears to have been uninterested in Firchow’s attempt to bring up the factors set forth in the plan.”
More damning, the court found that the council “never discussed the Plan Commission’s analysis of the factors set forth in the Comprehensive Plan and never independently engaged in its own analysis of the plan’s factors, either.” Instead, the court noted that alderpersons focused their remarks on irrelevant topics like “the price of land” and “the opportunity of residents to be heard"—neither of which are factors the city’s Comprehensive Plan requires them to consider.
This goes to one of the fundamental standards of municipal decision-making—that actions must “represent its judgment and not its will.” By ignoring the required legal analysis, the court essentially found that the council made a political decision rather than a legally grounded one.
The court’s reference to alderpersons discussing “the opportunity of residents to be heard” is particularly revealing. This suggests some council members thought their job was simply to provide a forum for public complaints rather than to conduct the legal analysis required by law. It’s a patronizing approach that treats legitimate concerns about flooding and stormwater impacts as mere public venting that can be safely ignored once residents have had their “opportunity to be heard.”
What is a Remand and What Are Its Legal Limits?
A remand occurs when a court finds that a government body made an error in its decision-making process and sends the matter back for reconsideration. In this case, Judge Lanford found that the council failed to properly consider required factors from the Comprehensive Plan, so she sent the matter back to the council to reconsider the rezoning with proper analysis of those factors.
But Wisconsin law is crystal clear about what municipalities can and cannot do on remand. The fundamental principle, established in cases like Hartland Sportsmen’s Club v. City of Delafield (2020), is that “remand to the municipality or administrative tribunal for further hearings is appropriate where (1) the defect in the proceedings is one that can be cured, but (2) supplementation of the record by the government decision maker with new evidence or to assert new grounds is not permitted.”
The Wisconsin Court of Appeals emphasized that “affording a government decision maker a ‘second kick at the cat’ on remand by supplementing the record with new evidence or new allegations violates the standards of due process and fair play,” citing the Gibson v. DHSS case (1978) that established this principle.
Note the crucial phrase: “or to assert new grounds.” This isn’t just about new evidence—it’s about new legal theories, new frameworks, or new interpretations that weren’t part of the original proceedings.
Judge Lanford was explicit about these limitations in the Madison case: “On remand, the City may not supplement the record with new evidence.”
The “Educational Materials” That Aren’t Educational
Here’s where the city’s approach becomes deeply problematic. Alder Guequierre correctly explained in his blog post that no new information can be considered and that “subsequent communications, including the barrage of emails that alders are now receiving on this matter cannot be considered.”
But then he wrote: “Before then, the City Attorney’s staff and Planning staff will provide educational materials to Council members regarding the law, the Comprehensive Plan, and Judge Lanford’s specific instructions.”
When the city attorney’s actual memo was sent to alders on June 11, 2025, it became clear that these “educational materials” are anything but educational—the city attorney’s memo is legal advocacy that appears to directly violate Wisconsin remand law.
The “Confidential” Memo That Wasn't
Perhaps most telling is that the city attorney's memo was marked “Confidential Attorney Client Communication” when distributed to council members on June 11. When I inquired about the memo that day, an alder told me they couldn’t share it due to its confidential status. Yet just two days later, it appeared on the city's public website.
This sequence of events is significant. Attorney-client privileged communications are typically reserved for substantive legal advice—not neutral “educational materials.” By initially treating this memo as confidential legal counsel that council members couldn’t share, the city acknowledged what it really is: legal advocacy designed to guide council members toward a particular outcome.
The subsequent publication doesn’t cure the problem. Whether public or private, the memo still appears to violate Wisconsin’s prohibition on asserting “new grounds” during remand. But the confidential marking and the alder's initial inability to share it strips away any pretense that this is merely procedural education rather than substantive legal interpretation. When I inquired about these “educational materials” the afternoon of June 11—the very day the memo was distributed to alders—I specifically asked City Attorney Haas whether the materials would be “made public before the council meeting” and whether the winning petitioners would “have equal opportunity to provide similar materials to council members.” I received no response. Yet just days later, the previously “confidential” memo appeared on the city's website—too late for meaningful public review before the remand hearing on June 17. This sequence reveals not just a transparency problem, but a deliberate process designed to provide one-sided legal advocacy to council members while maintaining the fiction of procedural fairness.
Moreover, the timing raises troubling questions. If this was always intended as public “educational material.” why mark it confidential and tell alders they couldn’t share it? The last-minute publication—after the petitioners had no time to review or respond before the June 17 council meeting—reinforces the procedural unfairness at the heart of this remand process.
Four Major Legal Violations in the City Attorney Memo
1. Creating New Legal Framework Instead of Using Original Record
The most serious violation is that the memo doesn’t direct the council back to the Comprehensive Plan that existed during the original proceedings. Instead, it creates an entirely new framework by limiting the analysis to just three factors: building relationships with surroundings, natural features, and access to urban services.
Madison’s Comprehensive Plan contains dozens, if not hundreds, of relevant policies and standards. Housing goals, transportation compatibility, environmental protection, community character, infrastructure capacity—all of these could be relevant to the decision. By cherry-picking just three factors and ignoring the rest of the Plan, the city attorney has done exactly what the Hartland decision prohibited: “asserting new grounds.”
This restrictive framework wasn’t how the city approached the decision originally, and it certainly isn’t what Judge Lanford required when she ordered the council to act consistently with the entire Comprehensive Plan. The memo essentially prejudges which parts of the Plan matter, rather than letting the council make that determination based on the original record. This selective approach appears designed to steer the council toward a particular outcome while claiming to merely provide “educational” guidance.
2. Providing Substantive Legal Interpretations About Stormwater
The memo doesn’t just provide procedural guidance—it makes substantive legal arguments about how stormwater should be considered. It states that stormwater management “was not a lawful basis for deciding a rezoning” and that rezoning decisions are “typically made prior to the approval of stormwater plans.”
But this directly contradicts what Judge Lanford noted in her decision: the council “did not discuss whether these kinds of stormwater concerns were the kind of ‘natural feature' contemplated by the city’s plan.”
The memo essentially prejudges this legal question rather than letting the council make that determination based on the original record. This looks like exactly the kind of new legal interpretation that violates Hartland’s prohibition on asserting “new grounds.”
3. Cherry-Picking Legal Standards
The memo selectively quotes from Commissioner Solheim’s Plan Commission analysis, presenting it as an example of proper legal reasoning. But this cherry-picking approach allows the city attorney to highlight supportive analysis while potentially ignoring other relevant considerations that were in the original record.
More problematically, the memo frames Solheim’s analysis as the legal standard to follow, rather than simply one perspective that was in the original record. This appears to be “asserting new grounds” about what legal standard should govern the remand proceedings.
4. Going Far Beyond Legitimate “Educational” Content
Compare what the memo contains with what would be legitimately educational:
✓ Legitimate education: “Here’s how to access the June 18, 2024 documents and video."
✗ Legal advocacy: “Here’s what the law means and how you should apply it."
✓ Legitimate education: “The court found you must consider comprehensive plan factors."
✗ Legal advocacy: “Here are the three specific factors you should consider and here’s how to analyze them."
✓ Legitimate education: “The court prohibited new evidence."
✗ Legal advocacy: “Stormwater concerns are not a lawful basis for zoning decisions."
The memo is overwhelmingly focused on the latter category—providing legal interpretations and guidance that didn’t exist in the original record.
How This Violates the Hartland Prohibition on “New Grounds”
The 2023 Thompson v. Dane County case provides a helpful contrast. In that case, the court found that “Proposed Findings” were acceptable on remand because “they purported to summarize evidence that was already in the record” and were “an attempt to comply with [the court’s order requiring] the [Land Conservation Committee] to ‘sufficiently articulat[e] its [reasoning].’”
Critically, the Thompson court noted that “whether the findings are supported by the evidence is an issue separate from whether the Proposed Findings constitute new evidence: lack of support in the record does not make the Proposed Findings themselves evidence.”
Madison’s memo fails this test. Unlike Thompson’s “Proposed Findings” that summarized existing evidence, Madison’s memo provides:
New legal interpretations that weren’t part of the original proceedings.
A restrictive framework that may actually limit the council’s consideration beyond what existed originally.
Substantive legal arguments about how to interpret comprehensive plan requirements.
Guidance that appears designed to steer the council toward a particular outcome.
This isn’t summarizing existing evidence—it’s providing new legal grounds for decision-making.
The Troubling Asymmetry and Due Process Concerns
The legal violations are compounded by the procedural unfairness of the process. The residents who successfully challenged the city's original decision are prohibited from providing any additional information to council members. The broader public cannot offer comment. Subsequent communications from citizens "cannot be considered," according to Alder Guequierre's explanation.
Meanwhile, city staff—through what the city attorney initially marked as a "Confidential Attorney Client Communication"—are providing substantive legal guidance to the very council members who will vote on the matter. This creates a fundamental imbalance: the winning petitioners are silenced while the losing city gets to provide new legal interpretations through its attorneys.
This asymmetry is particularly troubling given that the petitioners had to overcome the presumption of correctness that attaches to municipal decisions. Having succeeded in court by showing the city "proceeded on an incorrect theory of law," they should not now face a process that systematically excludes their perspective while allowing the city to provide new legal frameworks disguised as educational materials.
The Broader Problem: No Policies Governing Staff Advocacy
Even more troubling, City Attorney Michael Haas has previously acknowledged that staff reports are not necessarily neutral. He stated that “staff’s posture and perspective may change depending on whether the initiative is part of an adopted City policy or a Mayoral directive.” This directly contradicts the expectation that professional staff should provide objective, comprehensive analysis regardless of political considerations.
Given this context, allowing staff to prepare “educational materials” for council members—behind closed doors, without public review—while simultaneously prohibiting any public input, creates a troubling imbalance that may also violate due process requirements.
What Should Happen Instead
Based on Wisconsin law, staff should legitimately be able to:
Provide the original record that existed on June 18, 2024.
Clarify purely procedural questions about how the meeting will be conducted.
Answer questions about what documents were before the council originally.
Staff should not be:
Interpreting what the Comprehensive Plan means.
Providing new legal frameworks for analysis.
Making arguments about how legal standards should be applied.
Cherry-picking portions of the original record to highlight.
The safest and most legally compliant approach would be for the council to work only with the record that existed on June 18, 2024, plus purely procedural guidance about accessing that record.
Why This Matters Beyond One Zoning Case
This situation represents more than just a procedural dispute about one development project. It goes to the heart of how city hall makes lawful decisions—based on judgment guided by our Comprehensive Plan, not political will.
Judge Lanford found that the council members focused on irrelevant factors like “the price of land” and “the opportunity of residents to be heard” rather than the legal standards required by their own Comprehensive Plan. This is precisely what happens when councils vote their will rather than their judgment based on the law and the applicable standards.
The court’s remand gives the council a chance to correct this fundamental error. Yet the city attorney’s memo threatens to perpetuate it by directing the council to consider only three cherry-picked factors from a Comprehensive Plan that contains dozens of relevant policies. This approach enables the very problem the court identified: decision-making based on predetermined outcomes rather than genuine analysis of whether a rezoning is consistent with the city’s planning goals.
Madison’s Comprehensive Plan represents years of public input and careful consideration about how the city should develop. When councils ignore these plans—or when city attorneys guide them to consider only selective portions—they undermine the entire planning process. Residents who participated in creating these plans have a right to expect that councils will consider them fully, not just the parts that support a desired outcome.
If this narrow approach is allowed to stand, it sets a dangerous precedent: any municipality could circumvent its comprehensive plan by simply focusing on a few favorable provisions while ignoring conflicting ones. This would render comprehensive plans meaningless and reduce zoning decisions to mere political exercises, exactly what state law prohibits.
Recommendations for Legal Compliance and Public Trust
To ensure both legal compliance and procedural fairness, the city should follow these guidelines.
Before the hearing:
Provide council members with the complete original record from June 18, 2024.
Limit guidance and "educational materials" to purely procedural matters, and make it public with reasonable time for review.
At the hearing:
Answer questions by directing alders to where the information is in the record or reading verbatim from the record.
Consider consistency with the entire Comprehensive Plan, not just selected portions.
Don't rephrase, summarize, or provide interpretations of information in the record, including the Comprehensive Plan.
Don't provide advice or guidance on whether or not the rezoning application is consistent with the Comprehensive Plan or the council's findings.
The integrity of the municipal decision-making process—and the city's credibility with both courts and citizens—depends on strictly limiting the proceedings to the original record without any new interpretation or advocacy.
The Stakes for Madison’s Legal Credibility
As Alder Guequierre noted, “Seven new alders were elected on April 1, and this will be their first acquaintance with the Old Sauk project.” These new council members have an opportunity to ask hard questions about the legal guidance they're receiving and to insist on compliance with both the letter and spirit of the court’s order.
The court gave the city a second chance to follow the law in making this zoning decision. The city should not squander that opportunity by creating new legal problems in the process of fixing the old ones. More importantly, it should not undermine public confidence in the judicial review process by appearing to circumvent court orders through semantic games about “educational materials.”
Wisconsin law is clear about what municipalities can and cannot do on remand.
Madison should follow that law, not look for workarounds. The integrity of the municipal decision-making process—and the city’s credibility with both courts and citizens—depends on it.
According to the city attorney's memo, the remand will be on the agenda for the June 17, 2025, Council meeting. 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.
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