What Was Old is New Again: Plachta v. Plachta Restores Precedential Value to Pre-1990 Cases
Earlier this week, the Michigan Court of Appeals issued a decision in a child-custody dispute that could influence how cases of all kinds are litigated in Michigan. In Plachta v Plachta,1 a Court of Appeals panel emphasized that older published Court of Appeals decisions—those issued before November 1, 1990—retain their precedential effect under the rule of stare decisis. These older decisions are not merely persuasive authority; they are precedential authority. For further clarification, the rule of stare decisis means “stand by the thing decided and do not disturb the calm.” “Stare decisis attempts to balance two competing considerations: the need of the community for stability in legal rules and decisions and the need of courts to correct past errors. This doctrine has been part of the American legal landscape since the country’s formation.”2
In Plachta, the Court of Appeals relied on its decision in the 1982 case Fisher v Fisher,3 concluding that the trial court had properly applied Fisher’s principles. The Plachta panel then took the opportunity to explain the authoritative value of older cases like Fisher. Under the Michigan Court Rules, a Court of Appeals panel must follow a published Court of Appeals decision issued on or after November 1, 1990, unless that decision has been overruled either by the Michigan Supreme Court or by a special conflict panel of the Court of Appeals.4 That is, an ordinary Court of Appeals panel is bound by a post-November 1, 1990, published Court of Appeals decision.
But the Plachta panel emphasized that lower courts are not free to disregard published Court of Appeals decisions issued before November 1, 1990. These older decisions are still binding. Accordingly, the Court Rules give them “precedential effect under the rule of stare decisis.”5 This means that published cases decided before November 1, 1990, have the same precedential value as cases decided on or after that date. They are binding on the Court of Appeals and Michigan trial courts until and unless the Court decides to overrule them. Typically, only the Supreme Court or a Court of Appeals conflict panel can overrule a published decision issued on or after November 1, 1990. But an ordinary three-judge Court of Appeals panel can do so as well for an older published decision if it is warranted under stare decisis principles. This means that pre-November 1, 1990, published decisions have precedential effect and must be followed unless there is sufficient reason to overrule precedent. Older published decisions therefore retain their binding-authority status not shared by unpublished decisions, which the Court of Appeals is not required to follow.
Plachta brings to the surface a growing tension in how the Court of Appeals treats its published decisions that predate November 1, 1990. The Court of Appeals has several times equated its older published opinions’ effect to that of its unpublished opinions—persuasive but not precedential. For instance, in the 2012 case In re Stillwell Trust, the panel opined that “[a]lthough cases decided before November 1, 1990, are not binding precedent, MCR 7.215(J)(1), they nevertheless can be considered persuasive authority[.]”6 As recently as September 2023, the Court of Appeals said in a published opinion that “[c]ases decided before November 1, 1990, are not binding on this Court, but they may be considered for their persuasive value.”7 There was also pushback to this view before Plachta, with at least one panel concluding that the Court of Appeals should follow its older published opinions unless “important prudential considerations” compelled it to do otherwise.8 But Plachta is the furthest the Court of Appeals has gone in promoting the continuing authority of its older published cases. According to the Plachta panel, published decisions preceding November 1, 1990, are just as much precedent as later published decisions, and they must be followed absent a stare decisis analysis that warrants a change of course.
In practical terms, Plachta should increase litigants’ confidence in relying on older published Court of Appeals decisions. According to the Plachta panel, those decisions are more than just persuasive; they remain binding precedent in most instances. Not only must the trial courts follow older published decisions, but under Plachta’s framework the Court of Appeals must do so as well—unless, that is, the panel is convinced that the decision is wrong and should be abandoned despite stare decisis considerations. “Stare decisis attempts to balance two competing considerations: the need of the community for stability in legal rules and decisions and the need of courts to correct past errors. This doctrine has been part of the American legal landscape since the country’s formation.”9 That said, it remains to be seen whether future Court of Appeals panels will follow Plachta’s approach and, if so, what the contours of their stare decisis deference to pre-November 1, 1990, decisions will be.
At any rate, Plachta represents a clear break with past Court of Appeals opinions that treated older published decisions as similar to unpublished decisions—merely persuasive and not precedential. After Plachta, what was old is new again, and litigants should take heed of cases into which Plachta may have breathed fresh life.
Please feel free to contact the authors of this Client Alert or your Butzel attorney with any questions.
Daniel J. McCarthy
248.258.1401
mccarthyd@butzel.com
Kurtis T. Wilder
313.983.7491
wilder@butzel.com
Joseph E. Richotte
248.258.1407
richotte@butzel.com
Barrett R. H. Young
313.983.7465
youngb@butzel.com
Thomas P. Nolan
313.225.7072
nolant@butzel.com
Brian K. Weber
517.372.4449
weberb@butzel.com
[1] Plachta v Plachta, ___ Mich App ___; ___ NW2d ___ (2026) (Docket No. 374260).
[2] Petersen v Magna Corp, 484 Mich 300, 314 (2009).
[3] Fisher v Fisher, 118 Mich App 227; 3244 NW2d 582 (1982).
[4] MCR 7.215(J)(1).
[5] MCR 7.215(C)(2).
[6] In re Stillwell Trust, 299 Mich App 289, 299 n 1; 829 NW2d 353 (2012).
[7] Reese v James, 348 Mich App 454, 461 n 4; 19 NW3d 386 (2023).
[8] In re Guardianship of Bazakis, 342 Mich App 144, 153 n 4; 992 NW2d 673 (2022), vacated in part on other grounds, 513 Mich 1006 (2024). See also, e.g., People v Bensch, 328 Mich App 1, 7 n 6; 935 NW2d 382 (2019) (“[W]hile we are not strictly required to follow uncontradicted opinions from this Court decided before November 1, 1990, those opinions are nonetheless considered to be precedent and entitled to significantly greater deference than are unpublished cases.” (quotation marks omitted)).
[9] Petersen, supra at 314.
