¶ 17. (concurring). I agree with the conclusion of the majority opinion that DNR does not have standing to challenge the constitutionality of §§ 30.2037 and 30.103, Stats. The requirement that there be a private litigant in order to apply the great public concern exception to the general rule of no-standing has been enunciated by the supreme court, has not been expressly repudiated or overruled by it, and this court has applied the requirement in our most recent decision on the issue, S.C. Johnson & Son, Inc. v. Town of Calendonia, 206 Wis. 2d 292, 303, 557 N.W.2d 412, 416 (Ct. App. 1996).1 I write separately to *229express my view that the case law establishing and applying this requirement does not make apparent the purpose of the requirement, thus raising, for me, the question whether it needs to be re-examined by the supreme court.2
¶ 18. The case that established the great public concern exception, Fulton Found, v. Department of Taxation, 13 Wis. 2d 1, 108 N.W.2d 312 (1961), did not mention such a requirement. It is true that in Fulton there was a private litigant — a non-profit corporation challenging an order of the Department of Taxation denying its application for the abatement of an assessment of a gift tax. However, the court's discussion and application of the exception did not contain any reference to the private status of that litigant. See id. at 12 — 14A, 108 N.W.2d at 318-19. When, on rehearing, the court changed its decision that one of the issues was not of great public concern, the court stated that one policy reason for permitting the department to raise this issue was that, unless the department were permitted to do so, there was little likelihood that any taxpayer would. Fulton, 13 Wis. 2d 1, 14B, 109 N.W.2d 285, 286 (1961). The court contrasted the situation before it with the enactment of a statute imposing a new tax, when the purported constitutional deficiency would likely be raised by the taxpayers against whom an attempt is made to assess and collect the tax. Id.
¶ 19. From Fulton we know that in deciding whether an exception should be made for an issue of great public concern, it is relevant whether an individ*230ual is likely to raise the same constitutional challenge that the state agency or municipality is seeking to raise. But the private status of the party against whom the governmental litigant makes the constitutional challenge is nowhere mentioned in the Fulton court's analysis.
¶ 20. Soon after Fulton was decided, the supreme court applied the great public concern exception in Associated Hosp. Serv., Inc. v. City of Milwaukee, 13 Wis. 2d 447, 109 N.W.2d 271 (1961). As in Fulton, a private litigant was relying on tax statutes which, it claimed, granted it exemptions, and a governmental entity — the City of Milwaukee — was challenging the statute on constitutional grounds. Also as in Fulton, in discussing and applying the exception, the court made no reference to the private status of the party relying on the statute.
¶ 21. The case in which the requirement thát there be a private litigant appears to have originated is Columbia County v. Board of Trustees of the Wisconsin Retirement Fund, 17 Wis. 2d 310, 116 N.W.2d 142 (1962). There the county and a taxpayer sought declaratory relief against the board of trustees of the Wisconsin Retirement Fund, seeking adjudication of the constitutionality of a statute. In addressing the standing of the county to challenge the constitutionality of the statute, the court referred to both Fulton and Associated Hospital, explaining that in each the suit was brought by a private taxpayer, and the governmental entity was raising as a defense the unconstitutionality of the statutes on which the taxpayers relied. Id. at 318, 116 N.W.2d at 146. After noting that in neither of those cases was the county or the state agency suing the State of Wisconsin or another state agency, the court stated:
*231We are not disposed to extend the exception to the general rule to cover suits between two agencies of the state government or between an arm of the government and the state itself.
Id.
¶ 22. The court in Columbia County went on to conclude that the individual taxpayer did have the capacity to bring suit and a right to raise the constitutional issue on behalf of himself and other taxpayers. Id. at 319, 116 N.W.2d at 147. The court did not indicate that the reason it was not permitting the county to challenge the constitutionality of the statute was that there were taxpayers who had standing to do so and were, in fact, doing so in the same suit. Under Fulton, that would be a proper reason to decline to apply the exception to the county. Instead, in Columbia County the court appears to establish an absolute bar against applying the great public concern exception in a dispute between an arm of the government and the state itself or between two agencies of the state government. However, the court does not explain how this limitation is relevant to the question whether an issue is one of great public concern, and no reason is apparent to this writer from the court's decision.
¶ 23. Columbia County was cited in five subsequent cases, which concluded that municipalities did not have standing to challenge the constitutionality of legislation, since the state or a state agency was the defendant. State ex rel. City of La Crosse v. Rothwell, 25 Wis. 2d 228, 233, 130 N.W.2d 806, 808 (1964); City of Kenosha v. State, 35 Wis. 2d 317, 331, 151 N.W.2d 36 (1967); Village of West Milwaukee v. Area Bd. of Vocational, Technical & Adult Educ., 51 Wis. 2d 356, 365-66, 187 N.W.2d 387, 390 (1971); City of Eau Claire v. DNR, 60 Wis. 2d 751, 752, 210 N.W.2d 771, 771 *232(1973), and County of Dane v. Dane County Dept. of Soc. Servs., 79 Wis. 2d 323, 331, 255 N.W.2d 539, 544 (1977). In none of these cases was there an explanation of the reason for requiring a private litigant before the great public concern exception might apply. In La Crosse, 25 Wis. 2d at 233, 130 N.W.2d at 808, and West Milwaukee, 51 Wis. 2d at 365-66, 187 N.W.2d at 390, the court added that the individual plaintiffs did have standing to raise the constitutional questions. On the motion for rehearing in La Crosse, 25 Wis. 2d 228, 131 N.W.2d 699 (1964), the court distinguished the case before it from Associated Hospital, explaining that the court there permitted the city to raise the issue of the constitutionality of a statute as an issue of great public concern in acting in its representative capacity, but there was no need for the City of La Crosse to act in its representative capacity because there were electors and taxpayers who were parties to the suit and could raise the same constitutional issue as the city sought to raise. Id. at 239-39A, 131 N.W.2d at 699. Thus, although the La Crosse court in its first opinion cited Columbia County for the proposition that the exception applies only to cases between a private litigant and a municipality or state agency, La Crosse, 25 Wis. 2d at 233, 130 N.W.2d at 808, its decision on rehearing relies on a different reasoning — that referred to in the Fulton decision on rehearing: if an individual is raising or is likely to raise the issue of the constitutionality of a statute, there is no need to make an exception to the no-standing rule for the municipality or state agency.
¶ 24. In Kenosha, after concluding that the city lacked standing under Columbia County and La Crosse to challenge the constitutionality of a statute concerning voting machines in an action against the secretary of state and the State of Wisconsin, the court stated: *233"The city's remedy is to force the attorney general to bring an action of mandamus against it. In this way, the constitutional issues will be properly before this court." Kenosha, 35 Wis. 2d at 331, 151 N.W.2d at 43. The court does not further explain this sentence, and leaves unanswered the question why a mandamus action brought by the state against the city, where the litigants will be the same and there will be no private litigants, would permit the city to raise the constitutionality of the statute. It may be that the court is suggesting that a municipality can challenge the constitutionality of a statute in a suit brought against it by the state or state agency, but why this should be so is not apparent.
¶ 25. The next relevant case is Unified Sch. Dist. No. 1 v. WERC, 81 Wis. 2d 89, 259 N.W.2d 724 (1977), in which the court concluded the great public concern exception did apply in a municipality's suit against a state agency challenging the constitutionality statute. However, as the majority opinion correctly points out, the issue whether that exception could be applied in the absence of a private litigant was not raised or addressed by the court. The next year, in the City of Madison v. Ayers, 85 Wis. 2d 540, 271 N.W.2d 101 (1978), the court discussed the cases that had applied the great public concern exception and those that had declined to do so, and concluded that the issue before it was not a great public concern because it dealt with the extension of worker's compensation eligibility to a small class of applicants. Id. at 545-46, 271 N.W.2d at 103-04. The court did not make reference to the requirement that there need be a private litigant in order to apply the great public concern exception. It is true, as the majority opinion points out, that there was a private litigant, because the city was suing an indi*234vidual as well as a state agency and the State of Wisconsin. However, the court makes no mention of the existence of a private litigant in its discussion and application of the great public concern exception.
¶ 26. It is difficult to derive from these cases a reasoned basis for the requirement that there be a private litigant in order that a municipality or state agency may challenge the constitutionality of a statute, when the issue is one of great public concern. The "necessary" private litigant is not — as Fulton and Associated Hospital demonstrate — challenging the constitutionality of the statute, but, rather, is relying on it. What policy or purpose is served by permitting a municipality or state agency to challenge the constitutionality of the statute in that situation, if the issue is one of great public concern, but not in cases where the opposing party relying on the statute is a municipality or state agency, regardless of the degree of public importance of the issue? The actual or likely existence of an individual challenging the statute on the same constitutional ground is, as the court in Fulton explained on rehearing, relevant in deciding whether the exception is necessary in a particular case: even if an issue is one of great public concern, there is no need to create an exception to the no-standing rule for municipalities and state agencies if the statute's unconstitutionality is being raised, or may likely be raised, by those individuals affected by it. But why is the existence of a private litigant relying on the statute necessary before a municipality or state agency may raise an issue of great public concern?
¶ 27. In my view it would be helpful to litigants — particularly municipalities and state agencies — and to the courts, for the supreme court to re-examine this requirement and determine whether it *235furthers the policies underlying the general no-standing rule, or serves the purpose of narrowing the exception in a meaningful way. Whatever the results of that re-examination, the court's decision would provide a much needed clarification of existing case law.
S.C. Johnson & Son, Inc. v. Town of Calendonia, 206 Wis. 2d 292, 557 N.W.2d 412 (Ct. App. 1996), does not refer to this court's earlier decision, Milwaukee County v. Milwaukee Dist. Council 48, 109 Wis. 2d 14, 325 N.W.2d 350 (Ct. App. 1982), which discussed both the great public concern and the official duty exceptions to the no-standing rule. In Milwaukee County we stated that the official duty exception, not applicable in this case, applied only where there was a private litigant, but we did *229not state that as a requirement for the exception of great public concern. Id. at 21, 325 N.W.2d at 353.
1 do not address the question whether the issue DNR seeks to raise is one of great public concern, if the private litigant requirement were not to apply.