you may proceed counsel nonresident concealed carry license after he had moved to the state of florida i want to focus all my argument on merely to the fundamental question in the case which is whether the state police engaged in the illegal rulemaking or actually failed to engage in proper rulemaking in its process of terminating how to conform to the requirements of section forty of the concealed carry law now that wall  tates and this is the key question before the court the department shall i rule allow for nonresident license applications from any state with laws related to firearm ownership position and carrying that are substantially similar to the requirements to obtain a license under this act and it goes on to state that a resident of such a state approved by the department may apply for a non residential the focus of the of the error in how the state police manage the program is demonstrated by the process that they used which effect bypassed either of the two alternative ways to comply with this statutory mandate and we identified in our briefs that the way to make that determination was to either engage in interpretive rulemaking or be to view these rules that they did adopt as procedure for developing a record that would let the agency apply the law to a given state of facts it department failed to do either in this case resulting in josh myers not only having  his illinois license he previously enjoyed revoked because he lived in florida but being blocked from even and he can't to fill out the application and to demonstrate that he qualified very clearly exemplified in the windy city case that we cited agencies can indeed take their statutory mandates and engage in an analysis of something that they are to determine for qualifiers and actually publish rules these are done in the example of the windy city in terms of determining which games are games of of gambling machines that are regulated we need to have a rule that allows a nonresident to apply for an application as long as they're residing in a place that contains substantially similar requirements as it will question is if the determination is made that it is not substantially similar does the person have the right to even apply or does that mean that if you're not in a substantially similar state there is no right to even apply well the answer to that i think is what we were just talking about with the windy city case have the department engaged in interpretive rule making then it would have had to make an analysis  state by state of which laws were similar which laws were not similar and then it could have by an interpretive rule like in windy city gone through jay carson process by but my recollection of the law was the stage three mandate was that they were given i believe a year in which to develop their rule so the statute even contemplated they would have to take some time to come up with the procedural rules or in this case  obviously nothing wrong with that and that's what should have happened here but what that process would entail would be to follow what the state police brief suggested which is the rules they did adopt or procedural and they argue that what they are doing is applying the law to a given set of facts now what facts are those the facts would be the ones contained in an application initially and then there would be an initial their policy that they're following it's not promulgated rules is to have a computer program that prevents the application from being submitted and therefore as they argued we never received an application from josh myers so we had no duty to ever respond to it the problem with that is that the house and his unit would be applicant rather know in advance with their  because of the way this was handled citizens residents in illinois or in other states had no opportunity to ever respond to do that they should have gone through the interpretive rule making process and the rule itself as promulgated would list the states that's what would happen or the rule would have provided the very procedure for that analysis to be done like in windy city that there survey has to be a study of the machine and then the interpretive rule lists which machines are and aren't regulated so we know we have this survey process right what's the problem the problem with the survey process isn't let me tell you if i may what is ok with it and what's not acceptable there is no reason why the state police use the survey as an instrument that's helpful in making determinations but if their rules are procedural if they're and and because they didn't do an interpretive rule saying definitively florida is by rule not one of the states that where we will accept applicants then there's going to have to be an analysis after the fact and the opportunity which under are section ten half of the act mandates said if an applicant is being denied is to be given the reasons why and a hearing had section  right but that but the statute directed the state police to do that by rule and they do so so if we accept their argument that they have procedural rules then read the must be very simple you want them rule to list brief as an issue that the laws may be evolving and so you would have this process going on going on and on going on but the whole point of problem geisha with an interpretive rule still allows the public  correct errors to provide information to provide argument about which states do and don't qualify and that's because there are legitimate questions about whether florida does or doesn't have l and look at the process they used they sent the letter to the department of agriculture in florida which is in fact the agency oddly enough is the agency that regulates the licensor of firearms whether or what or the law requires whether it's a circle or these are legal questions but the record shows the illinois state police never made that legal determination they used th and made the determination the agency still had to to adopt that by rule so they could either do it through the interpretive rule process which isn't confined to just fact based things are these if they chose to do it that way got a much better suggestion based on their brief because there are two alternatives the second alternative which is their own argument that they're trying to apply facts and law and come up with an interpretation through the questions of the law about which states are substantially similar and how the agency is supposed to apply that incomplete comply with section forty s requirement they do that by rule so what should happen is they should have accepted the application they could have used their survey as their determination lord is not similar we have a survey from them saying so and if josh myers was dissatisfied with any answer he would have had the burden of asking for an administrative hearing and he would have had the burden of establishing the legal question it's a straightforward application of administrative law principles that are we please throughout all agencies and consistent with what the law mandated in the concealed carry act in section forty that this be done by rule here's what was done instead they did this survey and when josh myers asked i want to apply for a nonresident license then if your canceling my existing license and they said you can't if you want to be able to apply you need to ask florida to send a different set of answers to the questionnaire so what the state police did was completely abrogate their duty and defer to the state of florida of making their determination for illinois whether or not florida's laws were similar if we were going i would have to accept and not only that wind with the multiple surveys that ask different questions we also found in the record there are belief or states that never responded and because they never responded the individuals in those states have absolutely no rights because of the process it's being used it's inconsistent with either interpretive rule making or procedural rule making that allows applications and puts the burden of proof where it belongs which is on the a there's a burden of proof there well there's a burden of persuading with the correct interpretation of lawyers here we could easily imagine that this unidentified individual who didn't identify himself in florida as being an attorney answered legal questions those could be a correct analysis an incorrect analysis ultimately the burden of deciding doubt was on the state police and in this record we see nothing other than these days or we defer is  but the whole point of the process still is as has the fallacy of never allowing the applicant to try to put forward that record when josh myers tried to do that it the administrative hearing generally have to challenge that is to have an administrative me people hearing to present their legal arguments and to get that legal interpretation from the agency josh myers was precluded from doing that he was precluded from submitting an he wouldn't receive a decision from the state police as josh myers didn't because josh was precluded from ever raising the seat is if you're not eligible so we're not going to process your application that's  application is that you're saying that's the same thing as not open it seems to be maybe it is well it is a denial and i don't think there's any practical way to look at that computer program a blocking the application from being completed other than to say you're being denied while not complying with the concealed carry a requirement that for denials of applications they have to give a reason notice and an opportunity for a hearing this is how we correct errors that's why i keep going back to this language that talks about nonresident may lie if the person is from the state stand to the similar laws i mean i'm just wondering have you gotten over that well we believe we have because we believe if we're given a hearing we can establish doubt and the state police didn't by rule list the states that are not eligible and that's what they would have to do so they have to choose a path we've got give me that opportunity and that's what's being denied to josh meyer so get in short this state police needed to do an interpretive rule and in the rule list the states or if it's procedural as they say allow the application to be submitted it can be denied and then josh myers has limited remedies but he at least has his opportunity to present his argument and get a and ministry to a decision which is what is require substantially similar determinations are unprobable gaited rules within the meaning of the a p a i just want to point out quickly that myers has forfeited this argument because he raised for the first time in his opening brief on appeal he has complained about unwritten rules about this case but it has been different all the time what exactly was supposed to be promulgated and in any event the department did not violate its duties under the act or the a the general assembly gave the department discretion under section forty b of the act to develop rules about how it was going to make it substantially similar determinations and if there's any ambiguity about the reading of section forty b as counsel suggests that's results when you look to section forty c because sexual section forty c of the act says that a resident who has been approved under the process and forty b so it characterizes section forty b as about the process and then it says may apply so once they once they have been approved with mr meyers applied or tempted to go what specifically happened what specifically happened was that he was unable to complete the computer application because it only accepts entry from a person who's residing in illinois or one of the states that has been determined to ok i think it's that he received notice of that fashion while he was unable to complete the application walking out and that was there things happen to me i think a beer all the time that doesn't let me do what i want to do but there's no explanation of why i can't do it well want to know what explanation here's the source of his problem was not the computer application that merely  understand i want to know what it said at the bottom of the form when it said you can proceed towards denied or why it's denied or why you have we don't like you you can't come here you can't apply i want to know what the words were as i understand it there were words that were sent to him as part of the application process he simply was not able to to go any further in the program so that there wasn't i don't know i said i'm not so he can't go to the next page or the computer the screen says out of luck i believe that when he try to heat it there's a there's a toggle box that has choice of states that you can choose thread and he was unable to choose the i'm sorry that i don't know whether there was a full list of states but then you couldn't choose some of them or whether it only listed four states plus illinois as your choice of state of residence those were choices because those were the only ones that had been determined to be substantially similar that's right ok and so he simply couldn't proceed and after that point he proceeded to have an e mail things with i'm with a department of well this just suggest something different  but you're now suggesting is that this was an automatic rejection or not letting him see because apparently in advance the departments at the termin would be helpful for the record i don't know that it makes any difference legal but so that we can understand the process that we see what the computer screen  a rejected application or navigation that wasn't permitted to go any further for whatever reason i mean if i was if i was a plot you know i appoint persons affidavit if i was doing it by hand couldn't complete the application and we don't know what it said or what old and again i'm not sure that that matters but wouldn't make more sense even in this computer age for us to see something in the record on paper that says you can't go any further in this process you're not eligible application tonight your state is a good story i'd like to see that just because i'm kind of visual on that post perhaps we could grab one of our i pads and go on the site and try it but i mean my understanding from the record is basically he couldn't continue there was no message whatsoever giving any explanation of why he couldn't continue but i'm sure he figured out because of the fact that you live in a state that has been determined to not have substantially similar laws but my understanding is he just couldn't do anything else well that's right in the within the application process itself but the department did everything that it was supposed to do under the act in the a p a and there are other places he could have found information on the department's website the circuit court on that issue but on the issue here is a request for a license as a non illinois resident that basically just went nowhere because the fact that he was residing in full that's  when it did that and the and the rules that it created which today heart of you and the department further complied with section five twenty of the a p a which says that when you're exercising a discretionary power you include the standards by which the agenc exercise the power stated as clearly and precisely as possible and the department promulgated a rule defining precisely how it was going to construe the term substantially similar that section twelve thirty one ten of the administrative code and it promulgated another define the procedure that it would use if there was any question about how it was interpreted in section forty b infection forty c this section twelve thirty one point one ten informs the public that as the department construes that section applications for a license will only be accepted from persons living in states that it deems to be substantially similar ok now i have a question i don't know what before states are but one that's not on the loose and it's the last year and it goes into effect july first two thousand and eight team how quickly is that how's that picked up well the department does its survey its about every two years and that's kind of a rolling process well that rolling process if it's two years would eliminate somebody from vermont they work inside the state police but if they know well the only way they're going to know is by the survey and theoretically you could go to here where people from vermont would have their applications rejected even though now the rot laws are substantially some law would you agree with that that's possible yes it's possible that could happen there are tell finally on that i thought that there was an opportunity in this and stance remembering correctly when he was having that conversation via the e mail did someone indicate to him that if there had been a change or if he was of the opinion that the laws were substantially similar erry licenses to communicate with illinois department and clear that up there are informal challenges i'm sorry informal channels somebody from the state could let the state know out from the survey a person who finds out about a provision that has been amended in the state that they want to could also notify the department they're going to vermont he has a dime for my he could notify the department now mr meyers did notify the department in this case that he disagreed with his determination on the other but the but the department did not agree with his with his suggested that he did not agree that it was in fact substantially similar so there are there are ways that that can be handled it doesn't mean that people will always have to wait for two years in between and if if all else fails he could bring an action for declaratory judgment as he as he's done in this case so he's not totally left without is there a difference in me does matter if that we're talking about people who are residents of other states i mean is there a difference in what process or whatever we owe to an illinois resident verses and nonresident let's say you're asking if i want my residents are treated differently from nonresident or vice versa well ultimately they're treated the same and this is this is the department scroll to in order to treat them the same however the  ning the initial procedure has to be a little bit different because and the important part of the rules that are applied to illinois residents are our rules that allow the department to obtain background information from illinois residents in the past and also to monitor them in the future and this is why they have the rule that the the state of residence has to be determined to be substantially similar first because we've got to have some assurance that we can obtain comparable information on these people to what we can get for telling my residence and that will be able to monitor them in the future  further is there a question they asked me if you ever been convicted of felony yes and once i click yes on that i'm not going to be able to go any further earl when i get to the bottom of that page i'm going to be declined or i can't go any further  screen freeze i don't actually know your honor go back but let's assume that assume that the kid but the reason i'm a convicted felon is because i was convicted of a very very small quantity of cannabis possession in one thousand nine hundred eighty eight and i should have had my conviction vacated or i should have gone to court had something done about it because of the change in the laws understanding that i would have the right maybe too have that sentence vacated and i add something to that i think the answer is going to be different based on whether or not you are an illinois resident if you're not a resident of the state if if you feel i mean if if i got rejected i could seek some court or some kind of court action i should be able to receive a remedy in court of i have a very strange circumstance or i have to demonstrate that my conviction was void if we could still use that word because the you know because if you're denied as an illinois resident you have the right to a hearing if i'm not sure what happens if you say checked yes that you have a felony but that the apartment is not able to release you from the requirement that you not have a felony even if you believe that it's wrongful for some receives the survey responses and then it and then it processes it and he says that they rely just blindly on what the state says we don't have information on exactly how the state does this because so that people don't have to wonder and and all of these things that the department of state police does it notified the public in advance when it promulgated its rules as as i was tested and there's the rule that says not only what the that the definition of substantially similar is but it tells you that license that application will only be accepted it tells you that the process is going to be done through surveys of other states and it tells you that it's going to inform the public of the determination this that the state has to apply its definition of substantially similar to it has to apply them to what the state's laws are at a particular time and it's also factual in another sense in that one of the things that the substantially similar aren't always contained within formal statutes or regulations so there may be some actual components it's largely it's it's largely legal but there's no need for a hearing because even though there are some factual components none of it depends on miers or any other potential applicants individual circumstances but i'm wondering about your representation that the questions are factual basis questions about that state their procedure and what they report they're basically yes or no questions right yes they don't call for a person to go into detail about the use or what happened the national mob foresman teletypes is so there they're not really calling for facts now there then what is the procedure right it's procedural pass it's knows no facts having to do with any individual circumstances and this is why the it's not the usual kind of adjudication situation because you're you're applying the law to facts that have nothing to do with the individual and you also aren't oh well ok i i just want to say that the apartment did everything that it was required to do under the act in the a p a there was nothing secretive or unfair about this process because everything was set forth and in the regulations there were opportunities for the public to challenge on the decision to only accept applications they could have challenge that the surveyor process and this was done and he was able to get all the information that he needed and he was able to get copies of the survey questions to fire and he was ultimately able to bring into purgatory judgment to challenge the department's determination and he lost on the merits there and the department substantially similar show nations are not rules because they do not create new standards they're not independent rules they simply apply laws to the unique facts of a particular state's statutes regulations and practices at a particular time thank you answer some of the questions that especially just disconnect you were asking about the application process let me start by asking if this is a case where the law is being applied to some and i'm going to record because it's less factual although there are something like that reporting requirements question is what law because the only state police essex soon yes or no questions in a questionnaire and relied on that solely we have no indication in fact we have every indication that all that they did there was no definitive and they'll assess a florida law and josh myers was precluded from developing a legal record of what florida law was all indication or is that record silent that they told josh myers that we were lying on the survey it did not ever indicate anything differently they said if you wanted different outcome get florida to send a different set of answers we know from the record that there were about four states that never answered the two thousand and fifteen survey those people were disqualified not because the state police looked at the laws of those states they required the state police to make that analysis and how could i analyze that which the state the state of the person's residence won't comply or respond to what i have asked westlaw or lexus or look up their news the burden is on me the statutory burton was placed there by the general assembly directing the state police to by rule make the determination which states have laws that are similar and it goes to your question about what about vermont and this changing law even in this record the response was that florida was indeed changing its law and that resulted in no further inquiry other than that e mail directive to mr meyer saying get the florida officials to give us different answers all of the reasonable inferences are they were lying soley on that in two thousand and fifteen they got different responses even asked different questions and then just immediately announced different results there's no indication and every indication is that the state police did not analytically look at any law the problem is they didn't let josh myers apply and give it to them it would be his burden to persuade them and that's an appropriate use of procedural rules which is exactly what they've argued were promulgated the public comment was on procedural rules there was no opportunity for the public to come in on the survey instruments they weren't developed until the rules were promulgated on the rules didn't say we're going to ask by survey the following questions which is why arbitrarily in two thousand and fifteen we get a different set of questions and it's not the record but i know that no questioners have gone out since two thousand and fifteen so we're now more than three years after the fact not finding out what the vermont laws of change and the judgment in this case agreed with the state police argument josh myers cannot even apply and therefore he can't get this argument developed and since he can't apply he's not entitled to argue that the rules weren't followed section ten f of the access the department shall deny an application here the applicant fails to meet the requirements and must notify the applicant stating the grounds and giving him his right to appeal if josh myers didn't qualify because he lived in a non similar state section ten f required the department to say that so back to the question on the computer screen josh myers testified that the council used greyed out that was his word some states were bold and clearly you could click and somewhere in that light gray you know on computer screen sometimes you can't click florida it was there but you couldn't click it and if you didn't click it it didn't go to the next step and you couldn't hit submit and you couldn't print because the department won't allow a paper application to even start when if i was fort if i said i was fourteen i think when somebody claims i qualify they should be allowed to submit an application to department follows that act because the agencies have to do what the law says and the law says if the person doesn't the applicant fails to meet requirements the department must notify the applicant stating the grounds and stating his right to appeal and that of course they he's an applicant and you know back terms not defined anywhere an applicant somebody who comes and asks and it's no burden on the state police to deny somebody who's not qualified who's fourteen or who has a felony conviction but when it comes to the question of which laws are substantially similar it appears that the illinois state police have no record upon which they made that decision other than the survey instrument that changes arbitrarily which is inconsistent with