Inadmissible appeal against the early termination of the mandates of directors of a cantonal hospital, act not issued by a judicial authority (non-predominant political character)

Facts

The appellants, four members of the Board of Directors of the Hôpital neuchâtelois (HNE), were appointed under the Neuchâtel cantonal Act on the Multi-site Hospital Establishment of 30 November 2004 (LEHM/NE). This Act was replaced by the Act on the Hôpital neuchâtelois of 1 November 2016, which entered into force on 1 March 2017 (LHNE). Their mandates were extended until 31 December 2021.

In February 2019, the Grand Council adopted the Act on the Neuchâtel Hospital Network (LRHNe). On 15 May 2019, the Council of State promulgated this Act, with entry into force on 1 November 2019.

On the same day, the Council of State sent the members of the HNE Board of Directors a letter entitled implementation of the LRHNe, stating that, according to the State's legal service, their mandates would end de facto with the repeal of the LHNE, that is on 31 October 2019. The Council of State announced the appointment of a new Board of Directors during the summer.

On 18 June 2019, the four appellants lodged a public law appeal against this letter. They requested a finding that they remain members of the Board of Directors of the Neuchâtel Hospital Network in their former role, or alternatively their appointment to that role, and requested suspensive effect.

Main question: whether the act of the Council of State, which does not emanate from a judicial authority, may be challenged before the Federal Supreme Court under the exception of art. 86 para. 3 FSCA for an act of predominantly political character, the appellants arguing that cantonal law provides no cantonal appeal avenue (art. 28 LPJA, art. 82 LSt not applicable).

Considerations

The Federal Supreme Court examines of its own motion and freely the admissibility of the appeal. According to art. 86 para. 2 FSCA, the cantons must institute higher courts acting as the authorities immediately preceding the Federal Supreme Court, in accordance with the guarantee of access to a judge under art. 29a Cst., which admits exceptional derogations. The exceptions provided by the FSCA concern cantonal normative acts (art. 87 FSCA), decisions relating to political rights (art. 88 FSCA), and decisions of predominantly political character (art. 86 para. 3 FSCA). As the Council of State is not a judicial authority, it must be examined whether the act has a predominantly political character.

The exception of art. 86 para. 3 FSCA must be interpreted restrictively. It applies only if the political aspect clearly prevails without discussion. The fact that a decision emanates from a political authority is an indication, but not decisive. Where particular interests are affected, access to a judge is excluded only if political considerations clearly outweigh them and relegate private legal interests to the background. Great restraint is required, since referral to a judicial authority may be pointless if there is no reviewable legal question.

In this case, the early termination of the directors' mandates following a structural reorganisation rests exclusively on planning and strategy criteria, which presents a political aspect, reinforced by the Council of State's intention to appoint a new Board of Directors. However, the measure has implications for the legal situation of the appellants, and not merely for simple interests. The Council…