By Stephen Cowles

Special to the News-Herald

The recall petition against Isle of Wight School Board member Herb DeGroft has been dismissed for a shortage of qualifying signatures but could be brought back, according to Suffolk Commonwealth’s Attorney Phil Ferguson.

Ferguson revealed the possibility Wednesday in Isle of Wight County Circuit Court after Judge Carl Eason granted Assistant Commonwealth’s Attorney Susan Walton a non-suit in the issue.

Walton had filed a motion asking the court to dismiss the petition because of a lack of qualifying signatures.

“This is a unique proceeding in the Commonwealth of Virginia. It’s more of a civil issue,” Eason said before granting the motion.

Walton, who represents the petitioners, because the Isle of Wight Commonwealth’s Attorney’s Office recused itself, said the judge’s action “effectively removes the petition from the docket.”

“I’m happy about it,” Isle of Wight NAACP President Dottie Harris said afterward, adding that she will continue to pursue the matter.

Ferguson also said the commonwealth’s attorney would advise Harris on what could be done next.

DeGroft and Newport District Supervisor Byron “Buzz” Bailey are each targets of recall, because they were revealed to have privately circulated emails containing crude humor. President Barack Obama and Michelle Obama were the subjects of several of the emails. Fellow board members and county staff were recipients.

Harris was given a copy of the emails by Isle of Wight School Board member Denise Tynes, who reportedly received them anonymously. The revelation of the emails and calls for both men to resign came during a May 16 Board of Supervisors meeting.

Bill Nexsen, attorney for DeGroft, said that in civil practice non-suits occur frequently, such as when more witnesses are needed.

“It’s an interesting statute, as there’s no prior case law,” he said. “The petitioners are no worse off. If they choose, they may pursue it. They can do what they want.”

Both DeGroft and Bailey, who is also facing a recall petition hearing on Monday, Aug. 12, have repeatedly apologized in word and print, but each has declined to resign. DeGroft, however, chose not to run for reelection this year. Bailey’s term doesn’t expire until 2015.