Party compensation in the appeal proceedings: flat-rate fee and duty to give reasons when departing from the fee note

Facts

The appellants, consisting of an association (appellant 1), its president (appellant 2) and another member (appellant 3), took part on 20 December 2014 in St. Gallen in a leafleting action against 'Pelz-Tierquälerei' (fur animal cruelty). The police checked the participants, demanded that distribution be stopped, took the president to the police station against his will, seized leaflets and prevented a participant from filming. After about half an hour the president was released.

The appellants lodged a complaint with the Directorate of Social Affairs and Security of the City of St. Gallen, which dismissed it. The appeal to the Department of Security and Justice (SJD) of the Canton of St. Gallen was likewise unsuccessful. The Administrative Court of the Canton of St. Gallen (Division III) partially upheld the appeal by decision of 10 December 2018, set aside the SJD decision and found the police measures unconstitutional. It imposed the court costs one fifth on the appellants and four fifths on the SJD, and awarded the appellants party compensation for the appeal proceedings of Fr. 900.-- (plus disbursements and 8% VAT).

By public law appeal of 25 January 2019 the appellants requested partial annulment of dispositive ruling no. 3 and remittal to the Administrative Court for a new determination of party compensation for the appeal proceedings, taking into account the fee note of 31 July 2017; alternatively, that compensation be set by the Federal Supreme Court. They alleged a violation of the right to be heard and, in substance, arbitrariness. The Administrative Court requested dismissal; the municipality of St. Gallen did not comment.

The subject matter of the dispute was therefore solely the amount of party compensation for the appeal proceedings before the SJD and the duty to give reasons when departing from the submitted fee note.

Considerations

The Federal Supreme Court entered into the appeal, as it concerns a decision on costs in a public law matter (Art. 82 lit. a FSCA) of a last cantonal court (Art. 86 para. 1 lit. d FSCA) and the appellants are particularly affected (Art. 89 para. 1 FSCA).

Regarding the alleged violation of the right to be heard (Art. 29 para. 2 Cst.), the Federal Supreme Court held that where a tariff with minimum and maximum amounts applies, a court must only give reasons for its decision if it exceeds these limits, specific circumstances are asserted, or it departs from a submitted fee note and awards less than the usual compensation without existing practice. The Administrative Court had not addressed the fee note, but had named the applicable cost framework and the statutory assessment criteria. A departure from established practice was not asserted, so the reasoning sufficed and the complaint of violation of the right to be heard was unfounded.

The amount of party compensation is governed by cantonal law and is reviewed by the Federal Supreme Court only for arbitrariness (Art. 9 Cst.). Under the cantonal fee regulation (HonO), in administrative proceedings a flat-rate fee of Fr. 500.-- to Fr. 6'000.-- applies (Art. 22 para. 1 lit. a HonO), within which the basic fee is assessed according to the nature and extent of the efforts, difficulty of the case and economic circumstances (Art. 19 HonO). The hourly rate of Fr. 250.-- under Art. 24 HonO relates only to fees based on time expended and not to the flat rate, so there is no entitlement to such an hourly rate.

The Federal Supreme Court emphasised that party compensation need not cover all costs and that the deciding…