IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO

PARTIES

1. Relator-Plaintiff, Ohio Roundtable, is an Ohio-based public policy organization. It is an Ohio nonprofit corporation, incorporated in 1980.It has actively opposed the expansion of legalized gambling in Ohio, including multiple previous efforts to amend the Ohio Constitution to authorize casino gambling and legislative efforts to expand the Ohio Lottery. A guiding principle of its public policy pursuits has been adherence to the rule of constitutional law. Ohio Roundtable has a membership of approximately 1,000 Ohio families and a network of supporters in excess of 50,000 Ohioans.

2. Relator-Plaintiff, David P. Zanotti, is a citizen, resident, and taxpayer of the State of Ohio. He is the father of three minor children, who attend a public high school, a parochial high school, and a private elementary school. He is also President of Relator-Plaintiff Ohio Roundtable. In that capacity, he has actively opposed the expansion of legalized gambling in Ohio, including legislative proposals to expand the Ohio Lottery and proposed constitutional amendments to authorize casino gambling in Ohio.

3. Relator-Plaintiff, Columbus South District, United Methodist Church, Board of Trustees, is an Ohio nonprofit corporation, incorporated in 1973.It represents 78 United Methodist Churches in the Greater Columbus, Ohio area. As an organization, it has actively opposed the expansion of legalized gambling in Ohio, including expansion of the Ohio Lottery. It also is concerned with issues of poverty and the impact of gambling upon the poor. It operates the United Methodist Free Store in Columbus, Ohio, which serves the material needs of the poor.

4. Relator-Plaintiff, John W. Edgar, is a citizen, resident, and taxpayer of the State of Ohio. He is the father of a minor son, who attends a public elementary school in Columbus, Ohio. He is also Superintendent of the Columbus South District of the United Methodist Church. In that capacity, he has actively opposed the expansion of legalized gambling in Ohio, including expansion of the Ohio Lottery. He has testified on many occasions before committees of the Ohio House of Representatives and Ohio Senate against expansion of legalized gambling.

5. Relator-Plaintiff, John C. Adams, is a citizen, resident, and taxpayer of the State of Ohio. He is the Pastor of New Life Church in Sandusky, Ohio. He has actively and publicly opposed expansion of legalized gambling in Ohio, including having served as President of Citizens for Lorain, a political action committee that opposed a proposed constitutional amendment in 1988 to authorize casino gambling in Ohio. He also served at the invitation of former Governor George V. Voinovich as a member of Citizens for a Stronger Ohio, which opposed a proposed constitutional amendment in 1996 to authorize casino gambling in Ohio.

6. Relator-Plaintiff, Sandra L. Walgate, is a citizen, resident, and taxpayer of the State of Ohio. She is also the mother of Relator-Plaintiff Robert L. Walgate, Jr. She and her family have suffered great distress, emotional, financial, and otherwise, as a result of her son’s addiction to gambling.

7.Relator-Plaintiff, Robert L. Walgate, Jr., is a citizen, resident, and taxpayer of the State of Ohio. He is a recovering addicted gambler, whose addiction in the past caused great distress and hardship to his family, and adversely affected his pursuit of a college education and ability to hold employment.

8.Respondent-Defendant, Robert A. Taft, II, is the Governor of the State of Ohio.

9.Respondent-Defendant, Dennis G. Kennedy, is the Director of the State Lottery Commission (aka “Ohio Lottery Commission”).

10.Respondents-Defendants, Sandra K. Barber, Andrew J. Futey, Michele A. Roberts, Gisela Rosenbaum, Jerry Y. Seaman, Brooke S. Hill, Linda S. Dotson, Charles A. Nemer, and Mark E. Dottore, are the members of the State Lottery Commission (aka “Ohio Lottery Commission”).

11.Respondent-Defendant, State Lottery Commission (aka “Commission”) is an agency of the State of Ohio.

FIRST CLAIM: UNLAWFUL DELEGATION OF AUTHORITY TO THE GOVERNOR

12. Art. XV, § 6 of the Ohio Constitution provides that:

Except as otherwise provided in this section, lotteries, and the sale of lottery tickets, for any purpose whatever, shall forever be prohibited in this State.

The General Assembly may authorize an agency of the state to conduct lotteries, to sell rights to participate therein, and to award prizes by chance to participants, provided that the entire net proceeds of any such lottery are paid into a fund of the state treasury that shall consist solely of such proceeds and shall be used solely for the support of elementary, secondary, vocational, and special education programs as determined in appropriations made by the General Assembly.

13. Pursuant to the foregoing constitutional provision, the General Assembly has the sole authority to authorize an agency of the state to conduct lotteries.

14. On December 5, 2001, the Ohio General Assembly passed Am. Sub. H. B. No. 405 (“H.B. 405”), which was signed by Respondent-Defendant Taft and filed with the Secretary of State on December 13, 2001.

15. H.B. 405 made changes in appropriations and amended, repealed, and enacted new substantive provisions of the Ohio Revised Code.

16. Among other changes of law, H.B. 405 amended R.C. §§ 3770.02, 3770.03, and 3770.06, which govern the conduct of lotteries by Respondent-Defendant Commission. Such changes relate to the authorization and conducting of a “statewide joint lottery game” (aka “multi-state lottery”).

17. H.B. 405 amended R.C. § 3770.02 by addition of the following division:

(J)(1) As used in this chapter, “statewide joint lottery game” means a lottery game that the commission sells solely within this state under an agreement with other lottery jurisdictions to sell the same lottery game solely within their statewide or other jurisdictional boundaries.

(2) If the governor directs the director to do so, the director shall enter into an agreement with other lottery jurisdictions to conduct statewide joint lottery games. If the governor signs the agreement personally or by means of an authenticating officer pursuant to section 107.15 of the Revised Code, the director then may conduct statewide joint lottery games under the agreement.

(3) The entire net proceeds from any statewide joint lottery games shall be used to fund elementary, secondary, vocational, and special education programs in this state.

(4) The commission shall conduct any statewide joint lottery games in accordance with rules it adopts under division (B)(5) of section 3770.03 of the Revised Code.

18. Based on information and belief, Respondent-Defendant Taft has or will direct Respondent-Defendant Kennedy to enter into an agreement with other lottery jurisdictions to conduct statewide joint lottery games.

19. The provision of H.B. 405 amending R.C. § 3770.02 to provide that if the Governor so directs, the director of the commission shall enter into an agreement with other lottery jurisdictions to conduct statewide joint lottery games, violates Art. XV, § 6 of the Ohio Constitution in that it delegates to the Governor the authority to authorize an agency of the state to conduct lotteries.

20. Relators-Plaintiffs will be irreparably harmed by said violation of Art. XV, § 6 of the Ohio Constitution.

21. Relators-Plaintiffs lack an adequate remedy in the ordinary course of law for said violation.

SECOND CLAIM: UNLAWFUL DELEGATION OF AUTHORITY TO OTHER STATES

22. Paragraphs 1 through 21 are hereby repeated in full.

23. Under the provision of H.B. 405 defining a statewide joint lottery game, it is a lottery conducted in Ohio only if authorized under an agreement with other states.

24. The provision of H.B. 405 amending R.C. § 3770.02 to define a statewide joint lottery game as a game that the commission sells within the State of Ohio under an agreement with other lottery jurisdictions violates the provision of Art. XV, § 6 of the Ohio Constitution in that it delegates to other states authority to authorize an agency of the State of Ohio to conduct lottery games.

THIRD CLAIM: OHIO LOTTERY COMMISSION WILL NOT CONDUCT MULTI-STATE LOTTERY IN ITS ENTIRETY

25. Paragraphs 1 through 24 are hereby repeated in full.

26. Under Art. XV, § 6 of the Ohio Constitution, lotteries must be conducted solely and in their entirety by an agency of the State of Ohio authorized by the General Assembly to conduct lotteries.

27. Under H.B. 405, Respondent-Defendant Commission will conduct only the portion of any joint statewide lottery games involving sales of tickets within the State of Ohio.

28. Any statewide joint lottery game under H.B. 405 will not be conducted solely or in its entirety by Respondent-Defendant Commission in violation of Art. XV, § 6 of the Ohio Constitution. See, Ohio Attorney General Opinion No. 88-002.

FOURTH CLAIM: ENTIRE NET PROCEEDS OF MULTI-STATE LOTTERY WILL NOT BE USED TO FUND EDUCATION PROGRAMS IN OHIO

29. Paragraphs 1 through 28 are hereby repeated in full.

30. Under Art. XV, § 6 of the Ohio Constitution, the entire net proceeds of lotteries authorized pursuant to that section must be used solely for the support of elementary, secondary, vocational, and special educational programs in Ohio.

31. Under H.B. 405, expenses “necessary to comply with the agreements” with other states for the conduct of statewide joint lottery games are deducted from the gross proceeds of those games in determining net proceeds. Ohio will not receive the net proceeds from the sale of statewide joint lottery tickets in other states.

32. The entire net proceeds from any such statewide joint lottery games will not be used to fund education programs in Ohio in violation of Art. XV, § 6 of the Ohio Constitution. See, Ohio Attorney General Opinion No. 88-002.

FIFTH CLAIM:  CIRCUMVENTION OF REQUIREMENT THAT ENTIRE NET PROCEEDS BE USED FOR EDUCATION PROGRAMS

33.Paragraphs 1 through 32 are hereby repeated in full.

34. H.B. 405, Section 36, provides that:

CONDITIONAL TRANSFER TO THE LOTTERY PROFITS EDUCATION FUND GROUP

Upon approval by the Governor and the Director of the Ohio Lottery to join a multijurisdictional lottery:

(1) The State Lottery Commission shall transfer a minimum of $662,722,600 in fiscal year 2003 to the Lottery Profit Education Fund Group, and

(2) The Director of Budget and Management shall increase the fiscal year 2003 appropriation authority in the Department of Education Lottery Profit Education Fund (017) ALI 200-612, Base Cost Funding, by $41,000,000.This amount is hereby appropriated. The Director of Budget and Management shall also decrease the fiscal year 2003 appropriation authority in the Department of Education GRF ALI 200-501, Base Cost Funding, by $41,000,000.

35. The foregoing provision exchanges funds appropriated for education programs with anticipated proceeds from a multi-state lottery, indirectly using the proceeds from the lottery to fund non-education programs in violation of Art. XV, § 6 of the Ohio Constitution.

SIXTH CLAIM: SINGLE SUBJECT RULE

36.Paragraphs 1 through 35 are hereby repeated in full.

37. Art. II, § 15(D) of the Ohio Constitution provides that no bill of the General Assembly shall contain more than one subject.

38. H.B. 405 enacts numerous changes to the Ohio Revised Code which do not have a common purpose or relationship to the provisions regarding statewide joint lottery games. These include, but are not limited to: services for persons with mental retardation or other developmental disabilities; membership of county boards of mental retardation and development disabilities; property tax exemptions for Edison program grantees; provisions of the TANF Housing Program; lease purchase agreements by Education Service Centers; exempting employees of the Ohio School Facilities Commission from the Public Employee collective bargaining law; creation of the program committee of Ohio government telecommunications consisting of legislative leaders of the Ohio General Assembly and granting such committee authority to adopt rules governing the operation of Ohio government telecommunications; and provisions for paid leaves of absence for public employees who are members of the Ohio National Guard and are called to duty by the Governor.

39. The provisions of H.B. 405, including, but not limited to, the statewide joint lottery game provisions, violate the single subject provision contained in Art. II, § 15(D) of the Ohio Constitution.

SEVENTH CLAIM:WRIT OF MANDAMUS THAT MULTI-STATE LOTTERY BE CONDUCTED SOLEY BY AN AGENCY OF THE STATE OF OHIO

40. Paragraphs 1 through 39 are hereby repeated in full.

41. Respondents-Defendants have a clear legal duty to ensure that all lottery games, including multi-state lotteries, are conducted solely and in their entirety by an agency of the State in compliance with Art. XV, § 6 of the Ohio Constitution.

42. Relators-Plaintiffs have a clear legal right to ensure that all lottery games, including multi-state lotteries, are conducted solely and in their entirety by an agency of the State of Ohio.

EIGHTH CLAIM: WRIT OF MANDAMUS THAT FULL ENTIRE NET PROCEEDS FROM MULTI-STATE LOTTERIES BE USED FOR EDUCATION PROGRAMS IN OHIO

43. Paragraphs 1 through 42 are hereby repeated in full.

44. Respondents-Defendants have a clear legal duty to ensure that the full entire net proceeds from any statewide joint lottery game are used for education programs in Ohio as mandated by Art. XV, § 6 of the Ohio Constitution.

45. Relators-Plaintiffs have a clear legal right to have the full entire net proceeds from any statewide joint lottery game to be used for education programs in Ohio.

NINTH CLAIM: TAXPAYER ACTION FOR RESTITUTION OF PUBLIC FUNDS

46. Paragraphs 1 through 45 are hereby repeated in full.

47. The statewide joint lottery game provisions of H.B. 405 become effective March 14, 2002.

48. Respondents-Defendants have expended public funds and used public resources to begin implementing the statewide joint lottery game provisions of H. B. 405 prior to the effective date of the provisions.

49. Such expenditure of public funds and use of public resources is not authorized by law.

50. Respondents-Defendants are liable for the amount of such public funds and public resources.

WHEREFORE, Relators-Plaintiffs pray the Court to grant the following relief:

a) declare that the amendments to R.C. §§ 3770.02, 3770.03, 3770.06, enacted by H.B. 405, violate Art. XV, § 6 of the Ohio Constitution;

b) declare that Section 36 of H.B. 405 violates Art. XV, § 6 of the Ohio Constitution;

c) declare that the provisions enacted by H.B. 405, including, but not limited to, the amendments to R.C. §§ 3770.02, 3770.03, and 3770.06, violate the single subject provision of Art. II, § 15(D) of the Ohio Constitution;

d) issue preliminary and permanent injunctions enjoining Respondents-Defendants from implementing the provisions enacted by H.B. 405, including, but not limited to, the amendments to R.C. §§ 3770.02, 3770.03, and 3770.06 and Section 36 of H.B. 405;

e) issue a peremptory or other writ of mandamus ordering Respondents-Defendants to comply with Art. XV, § 6 of the Ohio Constitution by ensuring that any statewide joint lottery game authorized by H.B. 405 is conducted solely and in its entirety by an agency of the State of Ohio;

f) issue a peremptory or other writ of mandamus ordering Respondents-Defendants to comply with Art. XV, § 6 of the Ohio Constitution by ensuring that the full entire net proceeds from any statewide joint lottery game authorized by H. B. 405 are used for education programs in Ohio;

g) declare that expenditures of public funds and resources by Respondents-Defendants prior to March 14, 2002 to implement the statewide joint lottery game provisions of H. B. 405 were not authorized by law and order Respondents-Defendants to make restitution of the amount of such funds and resources; 

h) assess the costs of this action against Respondents-Defendants;

i) award Relators-Plaintiffs their attorneys’ fees and expenses; and

j) such other relief as may be just.

 Respectfully submitted,

Donald J. McTigue (0022849)
3886 North High Street
Columbus, Ohio 43214
Tel.: (614) 263-7000
Fax: (614) 263-7078 

Attorney for Relators-Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served via hand delivery on Elizabeth Luper Schuster, Ohio Attorney General, Chief Counsel’s Staff, 30 E. Broad Street, 17th Floor, Columbus, Ohio 43215, and Mark Landes, Isaac, Brant, Ledman & Teetor, LLP, 250 East Broad Street, 9th Floor, Columbus, Ohio 43215-3742 this ___ day of February 2002.

 Donald J. McTigue