COLUMBUS - Ohio's participation in the MegaMillions lottery is constitutional, but a court ruling yesterday created a $41 million hole in the state budget.

A Franklin County Common Pleas judge upheld the state's enrollment in a nine-state joint lottery against a challenge filed by a coalition of anti-gambling activists.

But Dan Hogan ruled that lawmakers unconstitutionally diverted $41 million that the expanded lottery is projected to raise this year away from education in order to help ease its immediate fiscal crisis.

"We're pleased that the court appeared to have agreed that the multistate lottery is constitutional, in general," said Joe Andrews, spokesman for Gov. Bob Taft. "We're still looking at the rest of the decision."

The coalition, which includes an Internet gambling addict, the Ohio Methodist Church, and the conservative Ohio Roundtable, said it will appeal the decision to the 10th District Court of Appeals.

"The General Assembly got caught with its hand in the cookie jar," said David Zanotti, president of the Ohio Roundtable. "It seems to me this is the exact process that has gone on all the time with the Ohio Lottery. They codified what they'd been doing all along."

Judge Hogan didn't buy the anti-gambling coalition's argument that the state has unconstitutionally surrendered control of part of its lottery to an out-of-state entity.

But he scolded the General Assembly for subtracting $41 million in aid appropriated for schools from its general fund, knowing it would be offset by the additional revenue generated by the new game.

The judge said the legislature should strike the one sentence from the budget-correction bill that had reduced the general fund contribution to education by $41 million.

While the multistate lottery was presented as part of a plan by the governor and legislature to help the state patch its budget, Governor Taft had argued that it would stabilize lottery profits for education.

Judge Hogan noted that the constitution clearly states lottery profits must benefit education.

"That perception was of great importance because it provided the justification of why Ohioans were willing to accept the risks of corruption associated with allowing a lottery," he wrote.