Swiss Federal Supreme Court, 06.11.2025, 1C_249/2025
Facts
In a dispute regarding infrastructure funding granted by the Municipality of Baar for a road plot, a landowner (the Appellant) filed an appeal with the Council of State. By decision of March 26, 2024, the Council of State rejected the appeal. The Appellant then appealed to the Administrative Court of the Canton of Zug. During these proceedings before the Administrative Court, the Appellant filed a motion to recuse the clerk of the Administrative Court (hereinafter: the Clerk). The Administrative Court rejected the recusal motion by order dated April 4, 2025.
The Appellant filed a public law appeal with the Federal Supreme Court against this order, requesting its annulment and the remand of the case to the lower authority.
The Appellant raised the following grounds:
- A violation of the right to be heard, as the Cantonal Court had not sought the Clerk's comments.
- Potential bias, as the Clerk had previously worked in the legal department of the Zug Cantonal Department of Public Works, the authority that prepared the contested Council of State decision of March 26, 2024.
- An appearance of partiality due to her ties to the law firm representing the opposing parties. The Clerk had worked there until 2020 and is allegedly related to a long-standing former partner of that firm.
Legal Analysis
Regarding the violation of the right to be heard : The Federal Supreme Court ruled that the lower court could, without violating the right to be heard, refrain from seeking the Clerk's comments through an anticipatory assessment of evidence, concluding that such comments would not have altered its analysis of the merits (consid. 4.1 - 4.2).
Regarding the appearance of partiality and the risk of bias: The Federal Supreme Court reaffirms the guarantee of an independent and impartial tribunal, enshrined inArt. 30 para. 1 of the Federal Constitution. This guarantee, which also applies to clerks with a consultative vote, is violated if objective circumstances create an appearance of partiality or a risk of bias. It is not a matter of a party's subjective impression, but rather whether, objectively, the outcome of the proceedings still appears open (consid. 5.2).
Regarding previous role at the Department of Public Works, the Federal Supreme Court holds that the mere fact that the Clerk worked in the legal department that processed the contested decision is not sufficient to establish bias. The Clerk was not the legal officer in charge of the case. The appellant failed to demonstrate that she was directly involved in the file or that she had already formed a definitive opinion on the matter, for instance during internal meetings. The mere possibility that she may have been aware of the case is not enough to cast doubt on her impartiality. Bias may exist if a person has already been involved in the same case at an earlier stage of the proceedings and has already expressed a view on certain points such that they no longer appear impartial (recital 6).
Regarding the ties to a party's representative, an appearance of bias is only recognized in the presence of specific circumstances, where the intensity and nature of the relationship exceed what is socially customary. In this case, the family tie to a former partner is irrelevant, as that lawyer was no longer active within the firm at the time of the appeal. There was therefore no current relationship of dependency or collaboration. The Clerk's former role as an employed lawyer at that firm, which ended five years prior, does not constitute grounds for recusal either. No specific circumstances suggest a relationship beyond the socially customary framework that would create an appearance of bias (recital 7).
The Federal Supreme Court concludes that no grounds for recusal are met.
Outcome
The Federal Supreme Court dismisses the appeal.
Regarding costs, the Federal Supreme Court departs from the usual rule. It does not charge the appellant for costs and awards the appellant compensation to be paid by the Canton of Zug. It considers that if the Administrative Court had sought the Clerk's observations, the appellant might have refrained from appealing, thereby avoiding the federal proceedings. The appellant is nonetheless ordered to pay legal fees to the respondents, as they were unsuccessful on the merits.
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