Columbus - Ohio's new multistate lottery game is constitutional, but the legislature's accounting tactics are not, a Franklin County judge ruled yesterday.

Common Pleas Judge Daniel Hogan ruled that Ohioans can continue playing Mega Millions. But, he said, all the profits must go to education, as required by the Ohio Constitution.

Ohio lawmakers tried to divert profits from Mega Millions, estimated at $41 million this year, to balance the state budget, the judge ruled.

The General Assembly gave Gov. Bob Taft the authority to join the game in a bill passed in December to eliminate a $1.5 billion budget deficit.

Mega Millions is a nine-state game started in May. In the bill, lawmakers increased the amount of lottery money going to education by $41 million. But in the very next sentence, they cut $41 million in tax dollars from education, so they could use it to balance the budget.

Hogan ruled that the accounting maneuver violated a 1988 constitutional amendment that said all lottery profits must be used "solely" to support primary and secondary education.

"When there was an ongoing perception that the lottery profits were not being used solely to materially benefit education, the people of Ohio amended the Ohio Constitution again to make explicit the requirement that proceeds be used solely for public education," Hogan wrote in his ruling.

"For this court to now interpret that amendment as only requiring an accounting formality . . . would render the action of the people of Ohio fruitless," Hogan wrote.

The ruling technically throws Ohio's $23 billion state budget out of balance by $41 million. But legislative leaders said there is no need for immediate action because the budget year doesn't end until June 2003.

The plaintiffs in the lawsuit applauded Hogan's ruling on the money transfer, but said they would appeal his ruling on the constitutionality of the game.

"We caught them with their hand in the cookie jar," said David Zanotti, head of the Ohio Roundtable, an anti-gambling group that filed the lawsuit along with the United Methodist Church. "It's hard for me to say how excited we are that a judge finally said what we've known all along - that they are playing loose with the money."

Taft spokesman Joe Andrews said that the governor's legal counsel was reviewing the ruling and that no decision had been made on a state appeal.

Senate President Richard Finan, a suburban Cincinnati Republican, said he expects the state to appeal the decision.

"In effect, he [the judge] is doing our budget. It really does, in my opinion, strike at the separation of powers," Finan said. "I suspect this will wind up in the [Ohio] Supreme Court."

The issue of whether the lottery really helps education has long been contentious in Ohio, which is why voters approved the 1988 amendment, Hogan said in his ruling.

The lottery has generated more than $11 billion for education since 1975, according to the Ohio Lottery Commission.

The lottery generated $637 million for education in 2001, down from a high of $749 million in 1997. But that is less than 10 percent of the Ohio Department of Education's $9 billion budget for this year.

The ruling comes as Mega Millions is starting to catch on with Ohio gamblers, said lottery spokesman Mike Bycko. After a slow start, Mega Millions sales have exceeded sales for Super Lotto Plus for each of the past two weeks, Bycko said. Today's Mega Millions jackpot is estimated at $165 million, he said.

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