(dissenting).
Being unable to join in the majority opinion, I respectfully dissent.
The action by the plaintiffs, policemen of the Village of Skokie, which gave rise to this controversy may mildly be labeled a protest, but was, as the district judge so found, an illegal strike. The district court found that this illegal strike, together with the related acts and circumstances which were aided and abetted by plaintiffs “brought about a state of government chaos, a complete disruption of the orderly management of municipal matters and a near breakdown in law enforcement, — all resulting in a most serious threat to the safety and welfare of some 68,000 citizens and residents of the Village of Skokie.” The court also found that this illegal strike caused the Village of Skokie to lose close to a quarter of a million dollars in damages. The district court further found that all plaintiffs were advised in advance “and well knew thereafter that a strike by policemen is illegal in Illinois.” Even the plaintiffs in their brief reveal that they have no expectation of approval of their “protest” actions by this court. The majority recognize that the actions of plaintiffs constituted a basis for discharge from their public employment.
Contrasted with the acts of plaintiffs, the district court found that in this “emergency situation” produced by the illegal strike, “all of the defendants, however, acted in good faith at all times and under most trying circumstances. None of said defendants acted with any malice whatever toward any of the plaintiffs or other policemen involved in the strike. The conduct of the defendants has been beyond reproach. * * * Despite the most adverse circumstances, they exercised calm and good judgment and tolerated unwarranted abuse and threats cast upon them by persons in sympathy with the illegal strike.”
Against this background the trial court found as to the hearings which were held by the Board that:
*126115. “In each instance resulting in the discharge of the plaintiffs herein, the Board held hearings upon written charges filed by Chamberlain, Chief of Police of the Village of Skokie, as to each of the plaintiffs. The Board issued separate written findings and decisions which, in addition to the specific findings of guilt as to particular acts, determined that cause existed for the discharge of each of said plaintiffs.”
and also that:
33. “At his Board hearing, each plaintiff received adequate opportunity to present an argument, a statement, or other evidence in mitigation of disciplinary action prior to the time the Board meted out ultimate disciplinary action against him.
“Plaintiffs Proudfit and Jones, even though not the recipients of what they term ‘separate mitigation hearings’, were nonetheless given the aforesaid opportunity in the hearing process wherein said plaintiffs were permitted to, and did, present evidence explaining by way of mitigation, the circumstances and motivation for their actions.”
Some of the strikers received “notice,” more correctly designated as mere information, that if they terminated the strike and reported for duty in uniform on or prior to July 13, 1975, they would not be discharged. This notice or information, which some, but not all of the striking policemen received, was found by the district court to be a violation of equal protection of the laws and due process. It was also found that plaintiffs were deprived of equal protection by being discriminated against for exercising their right to counsel and for contesting the matter of their guilt. The district court then concluded that discipline was unequally and intentionally applied in an unreasonably discriminatory manner in violation of their right to equal protection.
The majority affirms these conclusions of constitutional violations, finding the defendant Board acted in a wholly arbitrary manner in only suspending some and discharging others.
I cannot agree with those conclusions drawn from this record.
As to the problem about notice relating to the date to return to work in uniform so as to avoid discharge, no notice of any kind was necessary as the plaintiffs were engaged in a strike known by them to be illegal which could result in their discharge. The evidence shows that the so-called notice resulted from individual inquiries to the Assistant Chief by some of the strikers. The Assistant Chief advised those who asked that “if they would come back to work before the 14th, [he] would try to save their job for them. (Tr. 619) It does not appear that there was any effort to limit this information which was available to any plaintiff who chose to inquire. In addition, the Chief of Police testified that he had a conversation with the Union attorney representing plaintiffs and advised him to “Return them [the men] immediately. Do not wait.” (Tr. 446) Plaintiffs’ attorney responded that the plaintiffs would not comply with that request as they were going to have a celebration on the night of July 13, 1975, and that therefore plaintiffs would not return until July 14. I can find no merit in a constitutional violation involving notice under these circumstances.
The majority agrees with the trial court and finds that the only discernable pattern distinguishing between plaintiffs who were all discharged and those who were only suspended is that plaintiffs were represented by counsel at the Board hearings. The majority concludes that plaintiffs were penalized for asserting their right to be represented by counsel and that their right to equal protection and due process was thereby violated.
There is some justification in the analysis, but that analysis does not fully square with the trial court’s own finding that:
5. “Defendant Board members concluded that they should discharge all of the policemen who continued to be represented by their Union attorney, Mr. John Burpo. Said members determined that, in order to preserve discipline within and to require loyalty to the Skokie Police *1262Department, they could not and would not allow either Attorney Burpo or the Union to dictate whether or when the striking policemen should abandon their strike and return to work.”
The matters of discipline and loyalty of police officers are legitimate concerns and the Board need not accede to someone else’s determination as to if and when the illegal strike should be terminated. Thus, it is not that plaintiffs were penalized for merely having an attorney, union or otherwise, but that they followed his bad advice and did not terminate their illegal strike forthwith and return to work. If the plaintiffs chose to follow such advice and persist in their illegal activities, the Board was not required to overlook the results and consequences of that advice as it affected the actions of plaintiffs simply because it was given to plaintiffs by their attorney.
I agree with the majority’s implication that this is a difficult case to fairly resolve, and that the trial court made a Solomon-like effort. I do not believe, however, that this record is sufficiently clear to justify for constitutional reasons the intervention of a federal court into the solution of this local problem of utmost importance to the welfare of that community after Village officials made a good faith and satisfactory effort to resolve it for themselves. I do not believe that we should now substitute our judgment for theirs in the administration of their Police Department under the circumstances we find here. I would not require the community to rehire those law enforcement officers who were discharged because of involvement in the illegal strike. If the Board in its judgment in individual cases desires to keep some of the dissidents, I would view that as its business under the circumstances. It is true that the exercise of the Board’s judgment in some instances was uneven, but I do not believe that justifies our now trying to look over its shoulder, measure its conduct against an imprecise constitutional standard, and substitute a solution based on inference which neither party is totally satisfied with.
The Board is a body of lay persons and is not a court presided over by a judge presumably having above average knowledge of constitutional safeguards. However, even in ordinary courtroom circumstances, as Judge Stevens, now Justice Stevens, said in dissenting in a criminal case where a person’s liberty was at stake, “almost every jury trial requires some compromises with standards of absolute perfection; such deviations must be tolerated if the jury system is to function effectively.” United States v. Thomas, 463 F.2d 1061, 1066 (7th Cir. 1972).
Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1943), involved the actions of a state board which allegedly failed to certify correctly the results of a primary election, depriving plaintiff of election to the State Assembly and resulting in a violation of the plaintiff’s Fourteenth Amendment rights. The Court commented:
The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person, cf. McFarland v. American Sugar Co., 241 U.S. 79, 86-7, [36 S.Ct. 498, 501, 60 L.Ed. 899] or it may only be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another not to be inferred from the action itself, Yick Wo v. Hopkins, 118 U.S. 356, 373-4, [6 S.Ct. 1064, 1072, 1073], 30 L.Ed. 220. But a discriminatory purpose is not presumed, Tarrance v. Florida, 188 U.S. 519, 520, [23 S.Ct. 402, 403, 47 L.Ed. 572]; there must be a showing of “clear and intentional discrimination,” Gundling v. Chicago, 177 U.S. 183, 186, [20 S.Ct. 633, 635, 44 L.Ed. 725]; see Ah Sin v. Wittman, 198 U.S. 500, 507-8, [ 25 S.Ct. 756, 758, 759, 49 L.Ed. 1142]; Bailey v. Alabama, 219 U.S. 219, 231, [31 S.Ct. 145, 147, 55 L.Ed. 191].
I do not believe that this record sustains a finding of “clear and intentional discrimi*1263nation” by the Board. The selection of which officers were to be discharged and which were to be only suspended was not based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).
The mere fact that similarly situated individuals are treated more leniently does not demonstrate intentional or purposeful discrimination. In Herzbrun v. Milwaukee County, 504 F.2d 1189 (7th Cir. 1974), a public employee suspension and discharge case, this court noted at page 1196 that:
Mrs. Herzbrun, individually, claims that her discharge, in contrast with the suspension of others, denied her equal protection of the laws. We are unable to find that the difference in treatment was outside the broad range of discretion of the county officers.
Likewise, I believe the Village officials are entitled to a broad range of discretion in these matters of critical public concern and I do not believe the record shows the differences in treatment were outside the permissible range of discretion.
The burden of proof was on plaintiffs and I do not believe they sustained that burden.
I would reverse the judgment in favor of plaintiffs and deny plaintiffs’ cross appeal.