ISLE OF WIGHT—The recall petition against Isle of Wight School Board member Herb DeGroft could be brought back, according to Suffolk Commonwealth Attorney Phil Ferguson. He said this Wednesday in Isle of Wight County Circuit Court after Judge Carl Eason granted Assistant Commonwealth Attorney Susan Walton a non-suit in the issue.

Last Thursday, the CA had filed a motion asking the court to dismiss the petition, also referred to as the Show Cause Order. This was done 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 non-suit.

Walton said the judge’s action “effectively removes the petition from the docket,” adding that the petition is still filed with the court.

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

Ferguson also said the CA would advise Harris on what could be done next.

“I knew she (Walton) was going to file a non-suit. I was advised of it,” said Bill Nexsen, attorney for DeGroft. “I thought the best process was to dismiss show cause, and the CA wanted non-suit.”

Nexsen added that in civil practice such actions occur frequently, such as cases 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.”

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 pages.

Fellow board members and county staff were recipients.

Harris was given a copy of the emails by IOW school board member Denise Tynes, who reportedly received them anonymously. The revelation of the emails and calls for both men to resign were made during a May 16 Board of Supervisors meeting.

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.