Judge stops case against BaileyPublished 12:47pm Wednesday, August 14, 2013
ISLE OF WIGHT—Isle of Wight Newport District Supervisor Byron “Buzz” Bailey is again secure in his seat after a judge OK’d the motion Monday for a non-suit in the petition recall case. Judge Carl Eason Jr. gave his ruling in Isle of Wight County Circuit Court.
H. Woodward Crook, an attorney in Smithfield, has been representing Bailey in the matter. Since mid-May, his client has been repeatedly urged to resign following the public disclosure of controversial emails that Bailey and Herb DeGroft, of the Isle of Wight School Board, had sent privately to other board members and county staff.
The emails contained crude humor that included President Barack Obama and Michelle Obama.
Both men frequently apologized for their actions, but said they would not leave their offices, even after respective board members also called for their resignations. Failing those pleas, residents in the Newport and Hardy districts, respectively, organized petition drives. They hoped a judge would rule in their favor and legally compel the representatives out.
Isle of Wight Commonwealth Attorney Wayne Farmer recused himself in the matter, and the two cases went to the Suffolk Commonwealth Attorney Phil Ferguson and Senior Assistant Commonwealth Attorney Susan Walton.
Owing to a lack of certifiable signatures on the DeGroft petition, the Suffolk Commonwealth Attorney had to file non-suit on July 17, which was granted by Eason. This means the matter could be brought up again if conditions warrant it, said Ferguson. He added there’s a six-month deadline and anything afterward would require petitioners to start over again.
After an investigation, Ferguson and Walton filed a non-suit in the Bailey matter on July 25. In their 12-page report, they wrote that the case doesn’t meet code requirements for removal.
They added their decision was not condoning his actions, and the petitioners’ actions were understandable. Ferguson and Walton concluded it would be best if Bailey were to voluntarily leave.
Five days later, Crook filed a motion asking for summary judgment and costs, including the attorney’s fee. The Suffolk office replied with a refusal, pointing to a section in Virginia Code 23.2-238(A) that allows a court at its discretion to rule for such if a decision is in the defendant’s favor.
Walton added the non-suit was neither a dismissal of the issue nor in Bailey’s favor, and cited cases to back that claim. Further, to award costs would be insulting to Isle of Wight taxpayers and would be “rewarding the defendant for his unprofessional and egregious behavior.”
“The judge granted the non-suit,” said Crook on Monday, “Therefore, we withdrew the request for summary judgment and attorney’s fees in that case.”
Brenda Lee, one of the co-captains for committee to recall Bailey, commented on the judge’s decision.
“We really didn’t have a lot of case law, and he (Bailey) was just operating under the radar, really,” Lee said. “We understood that. We really did. But we have opened the citizens’ eyes that elected officials are not accountable for the actions they do. Hopefully,
voters will remember these things at the ballot box.
“We’ve all been educated,” she added, “and we will continue to monitor the board of supervisors’ meetings. This is not going away.”