Splitting up the 9th U.S. Circuit Court of Appeals won't affect any of the pending Hawai'i cases such as whether Kamehameha Schools' admission policy violates federal law, if they are resolved by the time the breakup occurs, legal observers say.

Because a proposal to split up the circuit is still progressing through the U.S. House and must still be approved by the Senate, it's unlikely Congress can adopt the measure before adjournment this year. And any approval by Congress if it happens next year may come well after many of the pending cases are resolved.

At least two members of Hawai'i's congressional delegation are against the proposal, and a concern by the federal judiciary here is that it might leave Hawai'i with less of a say on internal federal judiciary matters.

Members of the Hawai'i legal community also oppose any split.

"I think everybody in Hawai'i is against it," said University of Hawai'i law professor Jon Van Dyke, who finds that the current setup works well for Hawai'i. The thinking is, Van Dyke said, "if it's not broken, why fix it?"

Chief U.S. District Judge David Ezra said the split would not have a retroactive effect and won't apply to cases that have been heard and decided by the appeals court. He also said he assumes that if the split is adopted, it would take some time to take effect.

The proposal would break up the nation's largest circuit into two, with Hawai'i remaining in the 9th Circuit with California and the Pacific islands. A separate 12th Circuit would comprise Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona, all currently part of the 9th Circuit.

The House Judiciary Committee approved the proposal Thursday.

The 9th Circuit is important to Hawai'i because it must hear appeals from federal court cases here. Its decisions are binding on federal court judges in Hawai'i.

Litigants can appeal rulings from the 9th and other circuits to the U.S. Supreme Court. But unlike the circuit courts, which are obligated to hear appeals, the high court can choose not to hear them and accepts only a small fraction of requests to review lower court rulings.

Among the pending cases from Hawai'i before the 9th Circuit are the challenge by an unnamed non-Hawaiian student to Kamehameha Schools' admissions policy that the court says bans applicants who don't have Hawaiian blood. Also pending is a dispute over whether Hui Malama I Na Kupuna 'O Hawai'i Nei must return artifacts sealed in a Big Island cave to the Bishop Museum.

In addition, a group of taxpayers is asking the appeals court to rehear an earlier decision that reinstated only part of their lawsuit challenging the constitutionality of government money for the Office of Hawaiian Affairs.

U.S. Rep. Ed Case, D-Hawai'i, said he opposes a split and believes it stems from politics rather than administrative issues. He also said that if the circuit were to split, and Hawai'i were paired with California in a new circuit, then Island concerns "might simply get swallowed."

"It's really an example of a very disturbing trend by Congress to interfere in the workings of the federal judiciary because they don't like what some of the decisions have been," Case said.

Jennifer Goto, chief of staff for U.S. Sen. Daniel Inouye, D-Hawai'i, said the senator has been and continues to be against any split. In the spring, he met with representatives of the federal judiciary, the Hawai'i State Bar Association and the state judiciary, which were all against any breakup.

"So that has been his position," she said.

Goto said Hawai'i would be overshadowed by California, and the circuit wouldn't have the "larger perspective" that the other states would provide.

"You lose the diversity and you lose the balance (of the current nine-state circuit)," she said.

Ezra declined to say whether he favors or opposes the split, but said one of the main concerns is that Hawai'i might be overwhelmed by the much larger California in dealing with the administrative governance of the judiciary. Hawai'i, for example, has four U.S. district judges and two senior district judges; California has 79 of those judges.

He said the federal bench has asked Hawai'i's congressional delegation that an appropriate provision be inserted in the legislation to protect Hawai'i's representation in a circuit with California.

He said they want to "ensure that the district of Hawai'i is treated fairly and equally and not, as some have suggested, like another Catalina (an island off California)."

As an example, Ezra cited the judicial conference that oversees the governance of the judiciary, including the allocation of resources.

The 9th Circuit sends a representative. An agreement has been reached between the smaller states and California calling for the representative to be alternatively elected from California and the other states for the three-year terms.

In terms of what type of rulings would emerge from the split, some believe there won't be that much of a difference.

"I wouldn't expect any dramatic changes," Van Dyke said.

He said California has a mix of conservative and liberal judges, but so do the other states in the current 9th Circuit.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.