specially concurring.
I agree with the conclusion reached by the majority. There is no question that Lynnanne Brenner was entitled to have a trial by jury in the municipal court of the City of Casper. I cannot accede to the rationale which is adopted in the majority opinion to justify that conclusion. There is no justification for considering the constitu*562tionality of § 5-6-207, W.S.1977. This court historically has pursued a policy of judicial restraint with respect to addressing the constitutionality of statutes. In one way or another the court has said many times that the question of constitutionality will not be addressed if there is another appropriate way to resolve the issue presented in any given case. E.g., Nehring v. Russell, Wyo., 582 P.2d 67 (1978); Schoeller v. Board of County Commissioners, Wyo., 568 P.2d 869 (1977); Stambaugh v. State, Wyo., 566 P.2d 993 (1977); Bowers v. Getter Trucking Co., Wyo., 514 P.2d 837 (1973); Pan American Petroleum Corp. v. Wyoming Oil & Gas Conservation Commission, Wyo., 446 P.2d 550 (1968); State ex rel. Fire Fighters Local 279, I.A.F.F. v. Kingham, Wyo., 420 P.2d 254 (1966); Marion v. City of Lander, Wyo., 394 P.2d 910 (1964), cert. denied 380 U.S. 925, 85 S.Ct. 929, 13 L.Ed.2d 810, reh. denied 380 U.S. 989, 85 S.Ct. 1352, 14 L.Ed.2d 283 (1965); Gorrell v. City of Casper, Wyo., 371 P.2d 835 (1962).
While the City of Casper has structured an artful argument in an attempt to demonstrate the proposition that a jury trial in the municipal court is foreclosed by the provisions of § 5-6-207, W.S.1977, the City’s position cannot stand in the light of the history of pertinent legislation and the construction of that legislation by this court. This case can be disposed of without addressing the constitutionality of the statute, and that is the appropriate resolution.
Section 5-6-207, W.S.1977, has been superseded by Rule 29, W.R.Cr.PJ.C., which specifically refers to § 5-130, W.S.1957, the same statute as § 5-6-207, W.S.1977. I must confess some apprehension with respect to a conclusion by this court to address the constitutionality of a statute which at one time the court believed it could supersede by a procedural rule. Some might conclude that the court was not confident of its authority to adopt procedural rules.
There is no legislative or jurisprudential history in the state of Wyoming which suggests that Ms. Brenner is not entitled to a trial by jury. Beginning with Stutsman v. City of Cheyenne, 18 Wyo. 499, 113 P. 322 (1911), which addressed a different statutory scheme, and continuing through State v. District Court of Sheridan County, 74 Wyo. 48, 283 P.2d 1023 (1955); Shafsky v. City of Casper, Wyo., 487 P.2d 468 (1971); Cisneros v. City of Casper, Wyo., 479 P.2d 198 (1971); and Lapp v. City of Worland, Wyo., 612 P.2d 868 (1980), the statutory scheme in Wyoming consistently was construed to provide for a right of trial by jury in a case such as this. The only difference found in the statutory scheme was whether the jury trial would occur in the municipal court or the district court. To summarize briefly, the legislature had provided that there was no jury trial in the municipal court (§ 5-6-207, W.S.1977), but then did provide for an appeal to the district court which was to be treated as an appeal from a justice of the peace court (§ 5-6-203, W.S.1977). With respect to appeals from a justice of the peace court, a “trial anew” in the district court was provided (§ 7-16-207, W.S.1977), and in State v. District Court of Sheridan County, supra, this court held that this statute provided a substantive right to a jury trial in such a case.
Later an amendment to the Constitution of the State of Wyoming and a new statutory provision authorized this court to promulgate rules of procedure for justice of the peace and municipal courts. Pursuant to this authority, Rule 5(d) of W.R.Cr. P.J.C. was adopted, and the language of that rule clearly provides for a jury trial in municipal court. In Lapp v. City of Worland, supra, we said at 612 P.2d 873:
“We do not disturb the legislature’s right to require a jury trial in misdemeanor cases in municipal prosecutions for ordinance violations. We only move the trial by jury proeedurally from the district court to the municipal court. We find, for the purposes of this case, that the legislature intended to give an individual the right to jury trial for violation of a municipal ordinance. We consider it a substantive right of a person, * *
*563We held that Rule 5(d), W.R.Cr.P.J.C., in recognition of the substantive right to a jury trial, simply provided for a jury trial in municipal court when a jail sentence was to be imposed. Subsequently, the rule was amended to require a jury trial when “a jail sentence is provided for by ordinance upon conviction.” In light of the jurisprudential history leading up to the decision in Lapp v. City of Worland, supra, there is no basis for the City of Casper to argue against a right to a jury trial in this case. A jury trial is required by Rule 5(d), W.R.Cr.P. J.C., and the court should dispose of the case on that ground.
The majority opinion goes even further than striking the statute as unconstitutional, however, and provides an advisory opinion with respect to a constitutional right to a jury trial under the Constitution of the State of Wyoming. This question was not raised by the parties, and is the style of issue which manifests the wisdom of requiring, in accordance with Rule 5.07, W.R. A.P.C.L.J., and 5.07, W.R.A.P., service of a brief upon the attorney general. We do not honor the adversary system, and perhaps do not provide ourselves with all the information that would be useful to us, by deciding such questions on our own motion without the benefit of briefs or arguments from interested parties, including particularly the attorney general. If such a constitutional right is to be espoused it should only be done in a case in which the issue is specifically and vigorously presented. Were that issue before the court, I might well agree with Justice Brown that our Constitution does not require a jury trial in all cases involving petty offenses. See State v. District Court of Sheridan County, supra. It well may be that the right is afforded by statute, as construed, and not by the Constitution.