specially concurring:
We issued a rule to show cause in this original proceeding to determine whether the district court erred in finding section 16-10-101, 8A C.R.S. (1992 Supp.), to be unconstitutional. The question is whether defendants seeking to waive their rights to a jury trial under section 18-1-406(2), 8B C.R.S. (1986), must obtain the consent of the prosecution in accordance with section 16-10-101.
I agree with the majority that section 16-10-101 is facially constitutional. Maj. op. at 11 n. 7. I write separately to set forth the reasons for my conclusion and because I do not believe that the record before us requires an examination of whether section 16-10-101, as applied, violates the due process clause of article II, section 25 of the Colorado Constitution.
I
Section 16-10-101 provides:
Jury trials — statement of policy. The right of a person who is accused of an offense other than a noncriminal traffic infraction or offense, or other than a municipal charter or ordinance violation as provided in section 16-10-109(1), to have a trial by jury is inviolate and a matter of substantive due process of law as distinguished from one of “practice and procedure”. The people shall also have the right to refuse to consent to a waiver of a trial by jury in all cases in which the accused has the right to request a trial by jury.
(Emphasis added.) In my view, the General Assembly’s 1989 amendment to section 16-10-101 adding the second sentence is facially constitutional.
As the majority notes, we have recognized that the General Assembly may interpose “reasonable requirements” upon the right to waive a jury trial.1 Previously, however, we have shown “a broad deference to the legislature with respect to the waiver of the right to trial by jury.” People v. Davis, 794 P.2d 159, 211 (Colo.1990).2
The prosecution consent requirement in section 16-10-101 is within the province of the General Assembly to provide conditions for the common-law right to waive a jury trial. In promulgating the rules of criminal procedure, we provided for prosecutorial consent to waiver of jury trial. Crim.P. 23(a)(5) states:
Except as to class 1 felonies, the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record, or by *13his announcement in open court appearing of record if the prosecuting attorney consents. Trial shall then be by the court.3
In Garcia v. People, 200 Colo. 413, 415, 615 P.2d 698, 700 (1980), we held that section 18-1-406(2)4 controlled over the prosecution consent requirement of Crim.P. 23(a)(5). We stated that the statute and the rule were in direct conflict and concluded that the General Assembly purposely excluded the prosecution consent provision in section 18-1-406(2).
When we promulgated Crim.P. 23(a)(5) and decided Garcia, we provided the General Assembly with the opportunity to define the limitation on a defendant’s right to waive a jury trial. In 1989, the General Assembly amended section 16-10-101 to require consent by the prosecution when a defendant waived a jury trial. The amendment was within the province of the General Assembly and placed a limitation on the right set forth in section 18-1-406(2) to waive a jury trial. The purposeful inclusion of the prosecution consent requirement in section 16-10-101 represents the General Assembly’s resolution of the issue.5
We also recognized in Garcia that a prosecutor may have a legitimate interest in seeing that cases are tried to a jury. Garcia, 200 Colo, at 415 n. 2, 615 P.2d at 700 n. 2. Section 16-10-101 serves to protect the public by allowing the prosecution to object to a waiver of a jury when the prosecution is concerned about a particular judge’s practice in a criminal case that would be against the prosecution’s interest.
A defendant may elect to waive a jury because of adverse publicity or a fear of public reaction to' the crime charged. A prosecution consent requirement serves as a counterbalance that allows the prosecution to try cases to the tribunal that is most likely to produce a fair result. United States v. Singer, 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965) (noting that the Government had a legitimate interest in trying cases in which it believes a conviction is warranted before the tribunal most likely to produce a fair result). Section 16-10-101 ensures that a prosecutor can try cases to a jury, which serves as a neutral and detached panel to resolve the factual issues.6
Standard 15-1.2(a) of the American Bar Association Standards for Criminal Justice recommends that waiver of jury trials be conditioned on the consent of the prosecution. The ABA standard acknowledges the arguments supporting different positions but concludes that the arguments for requiring consent of the prosecutor outweigh those for giving the defendant an unqualified right of waiver. Among the reasons noted in the commentary for requiring prosecutorial consent to a waiver are to facilitate equal treatment of the prosecution and the defense, to protect the public, and to preserve the role of the jury.
In my view, the prosecution consent requirement included by the General Assembly in section 16-10-101 is within the province of the General Assembly. The respondent has failed to establish that section 16-10-101 is unconstitutional. People v. Fuller, 791 P.2d 702, 705 (Colo.1990) (noting *14that a statute is presumed to be constitutional and that a person challenging the statute has the burden of proving that the statute is unconstitutional beyond a reasonable doubt). There is no basis for disturbing the exercise of legislative judgment represented by the statutory scheme.
II
Our rule to show cause and the limited evidentiary record that is before us do not require us to address the issue of whether due process considerations override section 16-10-101 in this case.7 The respondent did not argue before the district court that section 16-10-101 was unconstitutional as applied. Nor did the district court rely on article II, section 25 in finding section 16-10-101 to be unconstitutional.8
The prosecution’s petition for mandamus sought a rule to show cause why this court should not find and declare section 16 — 10— 101 to be constitutional and enforceable. We issued the rule to show cause on the limited grounds requested by the prosecution. We did not ask the parties whether section 16-10-101 was unconstitutionally applied based on due process considerations nor did the respondent so argue in this court or in the trial court.9
We do not address issues presented for the first time in an original proceeding. Panos Inv. Co. v. District Court, 662 P.2d 180, 182 (Colo.1983); see also City of Colorado Springs v. District Court, 184 Colo. 177, 180, 519 P.2d 325, 326 (1974) (holding that the scope of inquiry under C.A.R. 21(a) “is limited to examining the jurisdictional grounds upon which the district court acted to determine whether or not the district court exceeded its jurisdiction”).
The question of the constitutionality of section 16-10-101, as applied, is not before us because this issue was not argued before the district court, relied upon by the district court, or argued in this court. I would leave the issue for another day and a case that presents the issue.
Ill
In my view, the only question before us is whether the district court erred in finding section 16-10-101 to be unconstitutional. I agree with the majority’s resolution of that issue, and would not address the relationship of the respondent’s due process rights to section 16-10-101. Accordingly, I would make the rule absolute, and would leave the interpretation of the relationship between due process considerations and section 16-10-101 for a case that requires its application.
Justice LOHR joins in this special concurrence.. Our earlier cases have stated that the power of the General Assembly to restrict a defendant’s right to waive a jury trial is constrained by the requirement of reasonableness, without explaining the source of this constraint. People v. Brisbin, 175 Colo. 428, 431-32, 488 P.2d 63, 65 (1971); see People ex rel. Iuppa v. District Court, 731 P.2d 720, 722 (Colo.1987). In People v. Davis, 794 P.2d 159, 209-12 (Colo.1990), we reviewed our prior cases and concluded that a defendant's right to waive a jury trial is a common-law right and, as such, may be denied by legislative action. Id. at 211. Accordingly, a defendant’s common-law right to waive a jury trial may be conditioned or abrogated by the General Assembly so long as the legislative action, facially or as applied, does not violate a defendant’s rights to due process of law or some other constitutionally based protection.
In light of Davis, our prior indications that legislative restrictions on a defendant's right to jury trial must be reasonable should be understood to mean no more than that. Absent such constitutional constraints, “reasonableness” is a matter for legislative determination. See, e.g., Davis, 794 P.2d at 211 (upholding a prosecution consent requirement where the common law provided the defendant’s right to waive trial by jury in a class 1 felony case); Iuppa, 731 P.2d at 722 (upholding the provision of section 16 — 8— 105(2) requiring the consent of the prosecutor to waive a jury trial in cases where a defendant enters a plea of not guilty by reason of insanity); Brisbin, 175 Colo, at 432, 488 P.2d at 65 (upholding statute requiring prosecutorial consent as a condition of waiver of jury trial on question of sanity).
. The rationale that underlies the broad judicial deference in this area is my conclusion that the defendant’s right of waiver is exclusively a statutory right defined by the General Assembly.
. Fed.R.Crim.P. 23(a) provided the basis for Crim.P. 23(a)(5) and has been in effect since 1946 without change. Fed.R.Crim.P. 23(a) states, “[cjases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government."
. Section 18-1-406(2) provides, "[ejxcept as to class 1 felonies, the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record or by announcement in open court appearing of record.”
. To the extent that the two statutes are irreconcilable, section 16-10-101 prevails over section 18-1-406(2) because it has the later effective date. See § 2-4-206, IB C.RÍS. (1980).
.Neither this court nor the United States Supreme Court requires the unconditional right to waive a jury trial. See Singer, 380 U.S. at 36, 85 S.Ct. at 790 (holding no federal constitutional impediment to conditioning waiver óf jury trial on consent of court and prosecution); People ex rel. Iuppa v. District Court, 731 P.2d 720, 722 (Colo.1987) (holding that the General Assembly had the power to impose a condition on the waiver of a jury trial and to require the consent of the prosecution, the court, or both).
. As the majority notes, "[t]he record before this court does not reveal what specific due process arguments, if any, were raised by the defendants in the trial court." Maj. op. at 11 n. 10. To be sure, a defendant has a due process right to a fair trial, and it may be in some cases that a jury trial would infringe that right, with the result that section 16-10-101 would be unconstitutional as applied. It is incumbent on the defendant, however, to assert an as-applied challenge, either in his waiver of a jury trial or in response to the prosecution's refusal to consent to the waiver. Absent such assertion it is not necessary or appropriate that the trial judge embark on a due process analysis.
. The district court initially found that section 16-10-101 conflicted with article II, section 16 of the Colorado Constitution and with both the Fifth Amendment (right to jury) and the Fourteenth Amendment (due process and equal protection) of the United States Constitution. The district court apparently misidentified the source of the Sixth Amendment right to a jury trial. On motion for reconsideration, the district court declared the statute unconstitutional only under article II, section 16 and article II, section 23 of the Colorado Constitution.
.The respondents in this original proceeding argue only that section 16-10-101 violates article II, sections 16 and 23 of the Colorado Constitution. In the closing footnote in the respondent’s brief, the respondent requested that, "[sjhould this Court reverse the trial court and declare that the prosecutorial consent requirement is constitutional, the defendant specifically reserves the right to argue to the trial court that, based on the circumstances of this case, his constitutional right to an impartial trial requires a bench trial.”